STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these cases on April 21, 1994, at West Palm Beach, Florida, before Linda M. Rigot, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Miguel Oxamendi, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Did not appear and was not represented

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Notice To Show Cause and Administrative Actions filed in each of these consolidated causes and, if so, what disciplinary action should be taken, if any.

PRELIMINARY STATEMENT

In August 1993, Petitioner served on Respondent a Notice To Show Cause and two Administrative Actions, and Respondent timely requested formal hearings regarding the allegations contained in each of those documents. Each of these causes was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceedings. These three causes were subsequently consolidated in the Notice Of Hearing entered March 24, 1994.

At the commencement of the final hearing, Petitioner moved to amend the styles of Case Numbers 94-0273 and 94-1255, and that motion was granted. The

corrected style of these causes is as reflected hereinabove. Petitioner's request for official recognition of Rule 61A-2.022, Florida Administrative Code, was also granted.

Petitioner presented the testimony of Deborah Gray, John McCormick, James

1. Griffin, and Charlene Self. Additionally, Petitioner's exhibits numbered 1-6 were admitted in evidence.

   
   

   Only the Petitioner submitted posthearing proposed findings of fact in the form of a proposed recommended order. All of Petitioner's proposed findings of fact have been adopted in this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. In May of 1992 Petitioner received an application for the transfer of an alcoholic beverage license, license number 60-05383. That license is a series 2-COP license, authorizing the limited sale and possession of alcoholic beverages, only beer and wine, on the premises. The application requested the transfer of the license to Samul Luc and Erick Martial d/b/a Universal Restaurant, 700 Datura Street, West Palm Beach, Palm Beach County, Florida.

      That application was denied because Martial had a disqualifying narcotics conviction of March 16, 1989. Luc and Martial were notified of that disapproval by letter dated November 4, 1992. Thereafter, Martial and Luc met with Captain Deborah Gray, the district supervisor of Petitioner's West Palm Beach office.

      She specifically advised Luc and Martial that Martial could have no financial interest at all in the business and could not be listed on the license or even in the lease of the licensed premises. She advised them that Martial could only be a salaried employee.

      
      

   2. In December 1992, Luc filed a sworn application for that license. This time, the applicant was listed as Samul Luc d/b/a Universal Restaurant, 700 Datura Street. Only Luc's name appeared in that application, and no other person was listed as having an interest in the business. In particular, Martial was not listed as an applicant or as someone having an interest in Universal Restaurant.

      
      

   3. Respondent paid the $100.00 fee for a temporary license with a check drawn on the First Union National Bank of Florida. The face of the check indicated that the account holder was Erick Martial d/b/a Universal Restaurant.

      
      

   4. Thereafter, whenever a problem arose regarding Universal Restaurant, it was always Erick Martial who came in to see Captain Gray. Captain Gray met with Erick Martial three or four times. The only meeting attended by Luc was the first meeting with Captain Gray at which she explained to both Martial and Luc that Martial could have no financial interest in the business. Accordingly, Captain Gray opened an investigation to ascertain if Martial did have an interest in Universal Restaurant, the licensed premises.

      
      

   5. The checking account used by Respondent to pay for his temporary license was opened on June 3, 1992, under the names of Samul Luc and Erick Martial d/b/a Universal Restaurant. The account's signature card was updated on August 18, 1993, and thereafter continued to include the names and signatures of Samul Luc and Erick Martial. That account has remained open and active through the time of the final hearing in this cause.

      
      

   6. On January 27, 1993, Special Agent Charlene Self went to the licensed premises to investigate the possible undisclosed interest of Martial. Luc was

      not present. Self asked to speak to the person in charge, and Martial said that he was that person. He further advised her that he was Luc's partner in the business. Self told him that he was not qualified to be a partner in the business, and Martial said that he was not aware of that.

      
      

   7. On August 3, 1993, Special Agent James Griffin went to the licensed premises to conduct an inspection. In the course of his inspection, he discovered and seized a partially-full bottle of vodka from behind the bar. The label on the bottle clearly identified the bottle as containing vodka, a distilled spirit, and Griffin's examination verified that the bottle contained vodka, a beverage not permitted to be sold or possessed under a 2-COP series license. Martial came in and identified himself to Griffin as a co-owner of the establishment. Martial told Griffin that the bottle of vodka was his personal bottle and that he knew that the beverage license of Universal Restaurant was for beer and wine only.

      
      

   8. Griffin returned to the premises on August 25, 1993, at the request of the West Palm Beach Police Department after being advised that Police Officer Tureaud had discovered a bottle of whiskey at the licensed premises. In the course of Griffin's inspection, he discovered and seized a three-quarters full bottle of Haitian rum. The label on the bottle clearly identified the bottle as containing rum, a distilled spirit, and Griffin's examination verified that the bottle contained Haitian rum, a beverage not permitted to be sold or possessed under a 2-COP series license.

      
      

   9. During that inspection, Martial came in and again identified himself as a co-owner of the restaurant. In response to Griffin's inquiries regarding the presence of the Haitian rum, Martial stated that the rum was used in cooking. Griffin then asked to see the restaurant's menus to see which food items called for rum in the cooking process, but Martial advised him that there were no menus listing food items that included rum as an ingredient.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

       
       

   11. The amended Administrative Action filed in DOAH Case No. 94-0273 alleges that on August 3, 1993, Respondent, through his agent or employee Erick Martial, possessed or permitted to be possessed at the licensed premises alcoholic beverages not authorized by law, contrary to Section 562.02, Florida Statutes. That statute specifically prohibits an alcoholic beverage licensee from possessing or allowing anyone else to have in his possession in that place of business an alcoholic beverage not authorized by law to be sold by such a licensee. The evidence is clear, convincing, and uncontroverted that on that date a bottle of vodka was discovered behind the bar and that vodka is a beverage not authorized to be sold by the holder of a 2-COP series license. Petitioner has met its burden of proof as to the allegations contained in the Administrative Action filed in DOAH Case No. 94-0273.

       
       

   12. Similarly, the Administrative Action filed in DOAH Case No. 94-1255 alleges that on August 25, 1993, Respondent, through his agent or employee Erick Martial, possessed or permitted to be possessed at the licensed premises alcoholic beverages not authorized by law to be sold at those premises, contrary to Section 562.02, Florida Statutes. Again, the evidence is clear, convincing, and uncontroverted that on that date Special Agent Griffin discovered and seized

       a bottle of Haitian rum, a distilled spirit which cannot be sold by the holder of a 2-COP series license. Petitioner has met its burden of proof as to the allegations in DOAH Case No. 94-1255.

       
       

   13. The Notice To Show Cause filed in DOAH Case No. 94-1241 alleges that Respondent on his December 1992 alcoholic beverage license application provided false information under oath by failing to disclose the interest in the business held by Erick Martial, contrary to Sections 559.791 and 561.17, Florida Statutes. Section 561.17 does require the disclosure of any person having a direct or indirect interest in the business in order that Petitioner can determine the qualifications of those persons engaging in the business of selling or in any way dealing in alcoholic beverages. Section 559.791, Florida Statutes, provides as follows:

       
       

       Any license issued by the [Department of Business and Professional Regulation] which is issued or renewed in response to an

       application upon which the person signing under oath or affirmation has falsely sworn to a material statement, including, but not limited to, the names and addresses of the owners or managers of the licensee or applicant, shall

       be subject to denial of the application or suspension or revocation of the license, and the person falsely swearing shall be subject to any other penalties provided by law.

       
       

   14. The evidence is clear, convincing, and uncontroverted that Samul Luc filed an application for an alcoholic beverage license in which he swore under oath that no one other than Luc had an interest, direct or indirect, in the business known as Universal Restaurant. That information was false. Each time one of Petitioner's special agents went to Universal Restaurant and asked to speak to the owner, Martial represented that he was a co-owner. At the three or four meetings with Captain Gray, the district supervisor, regarding Universal Restaurant, Luc attended only the very first, the meeting where he and Martial were specifically told that Martial could not have an interest in the business. Only Martial attended the subsequent meetings. Martial was also one of the two owners of the business' bank account, and he was an authorized signature on that account as was Luc. These facts, when considered in light of the initial application denial due to Martial's disqualification and the subsequent application by Luc alone, lead to the conclusion that Luc and Martial engaged in a conspiracy to violate the beverage laws of the State of Florida. Further, the only reasonable conclusion is that Luc intentionally failed to disclose on the alcoholic beverage application Martial's interest in the business and, thus, filed a false application.

       
       

   15. Rule 61A-2.022, Florida Administrative Code, sets forth Petitioner's penalty guidelines. The guideline for a first occurrence of possession of alcoholic beverages not permitted to be sold under the license is a $1,000.00 civil penalty, and the guideline for a second occurrence is a $2,000.00 civil penalty. The penalty guideline for falsely swearing on an application is revocation. Respondent has offered no evidence in mitigation of those guidelines.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered:

1. Revoking Respondent's alcoholic beverage license number 60-05383,

   Series 2-COP, and

   
   

2. Assessing against Respondent a civil penalty in the amount of

$3,000.00 to be paid by a date certain.

DONE AND ENTERED this 31st day of May 1994 in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of May 1994.

COPIES FURNISHED:

Miguel Oxamendi, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Mr. Samul Luc Universal Restaurant 700 Datura Street

West Palm Beach, Florida 33401

John J. Harris, Acting Director Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, Acting General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-000273

Orders for Case No: 94-000273