STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, DIVISION ) OF ALCOHOLIC BEVERAGES & TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3547

) EL GRECO, INC., d/b/a EL GRECO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on September 13, 1994, in Lakeland, Florida.

APPEARANCES

For Petitioner: Richard Courtemanche, Jr., Esquire

Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: John M. Houvardis, President

El Greco, Inc.

1109 East Main Street Lakeland, Florida 33801

STATEMENT OF THE ISSUES

Whether Respondent unlawfully obstructed and/or hindered the inspection of his licensed premises by law enforcement officers and allowed or otherwise condoned the sale of alcoholic beverages in violation of a municipal ordinance concerning the hours of sale and, if so, what disciplinary action is warranted.

PRELIMINARY STATEMENT

By its administrative complaint filed herein signed May 12, 1994, Petitioner alleges that Respondent obstructed and hindered the inspection of his licensed premises by law enforcement officers as well as allowed the sale or consumption of alcoholic beverages in violation of a municipal ordinance concerning the hours of sale. Respondent disputed the allegations and requested a formal hearing and this administrative hearing ensued.

At the outset of the hearing, Petitioner requested and the undersigned took administrative notice of Lakeland Municipal Ordinance Section 6-5 entitled "Hours of sale; service or consumption on licensed premises between certain hours prohibited".

Petitioner introduced the testimony of Lt. Robert D. Bishop, District Supervisor for District 4; policeman Ed Mingus, of the Lakeland Police Department; Officer Ed F. Cain, also an officer with the Lakeland Police Department and Detective Denny Phillips, a sixteen and a half year veteran of the Lakeland Police Department. Petitioner introduced exhibits 1 and 2 which were received in evidence at the hearing. Respondent testified on his own behalf.

Petitioner filed a proposed recommended order which was considered in preparation of this recommended order. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an appendix.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant:

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with regulating the sale of alcoholic beverages and tobacco in Florida.

   
   

2. Respondent, El Greco, Inc., d/b/a El Greco is the holder of alcoholic beverage license number 63-00458, series 4-COP. Respondent's premises is located at 1109 East Main Street in Lakeland, Florida. Respondent's president is John Houvardis (herein Respondent).

   
   

3. Petitioner issued two official warnings to Respondent on October 19, 1992. One warning was for a violation of Section 562.41, Florida Statutes, to wit, hindering or obstructing a law enforcement officer from conducting a search of the licensed premises which included locking a law enforcement officer from the premises. The other warning was for an alleged violation of the Lakeland City Ordinance relating to the sale, serving, or consumption of alcoholic beverages after the legal hours of sale.

   
   

4. On January 29, 1994, Officer Ed Mingus of the Lakeland Police Department was dispatched to Respondent's premises at approximately 2:29 a.m. Officer Mingus was dispatched to investigate a complaint of "loud noises and sale of alcoholic beverages after hours".

   
   

5. When Officer Mingus arrived at Respondent's premises on January 29, 1994, he heard noise coming from the licensed premises and observed several cars in the parking lot. The front door of the licensed premises was locked and Officer Mingus knocked to gain entry. An unidentified person answered the door and Officer Mingus identified himself as a police officer and requested entrance. Within seconds after requesting entrance, Respondent opened the door and allowed Officer Mingus inside the premises. At the time, approximately five employees were cleaning the licensed premises and no alcoholic beverages were observed either being served or consumed by Officer Mingus. Officer Mingus gained entry to the premises within five minutes of first knocking on the door.

6. Officer Mingus suspected that there were other people inside and, in this regard, he asked Respondent if there were, in fact, other people in the licensed premises. Officer Mingus told Respondent of his suspicion that he was violating the hours of sale whereupon Respondent reiterated of his awareness of the ordinance prohibiting sale of alcoholic beverages after hours and insisted that he was not violating the ordinance.

   
   

7. Officer Mingus thereafter requested permission from Respondent to search the licensed premises and Respondent consented to a search. Officer Mingus observed approximately nine or ten patrons in the kitchen area. Officer Mingus again reiterated his suspicion that Respondent was violating the municipal laws concerning the hours of sale and gave Respondent a verbal warning that if he was caught violating the ordinance, he would face criminal and administrative sanctions.

   
   

8. Detective Denny Phillips of the Lakeland Police Department conducted a sight investigation of Respondent's premises on January 29, 1994, both prior to and while Officer Mingus was inside the licensed premises.

   
   

9. Detective Phillips was across the street from the licensed premises with an unobstructed view of the premises on January 29, 1994.

   
   

10. On February 26, 1994, Detective Phillips continued his investigation of Respondent's licensed premises. Detective Phillips instructed Officer Ed Cain, also a patrol officer for the Lakeland Police Department, to enter the licensed premises in an undercover capacity. Officer Cain was instructed to attempt to remain in the licensed premises after 2:00 a.m., and to purchase an alcoholic beverage.

    
    

11. Officer Cain entered the licensed premises at approximately 12:30 a.m. on February 26, 1994, and observed a crowded lounge consisting mostly of

    college-aged patrons. Respondent was observed inside the premises.

    
    

12. Officer Cain observed a large number of the patrons leaving the premises by 1:00 a.m., and Respondent's employees escorted the remaining patrons from the licensed premises at approximately 1:45 a.m. Officer Cain was not asked to leave the licensed premises and he remained along with approximately four or five other patrons.

    
    

13. At approximately 2:10 a.m., Officer Cain ordered a shot of Sambuca, an alcoholic beverage described as a licorice liqueur, from a female employee. Officer Cain placed $2.00 for the beverage on the counter of the bar. Officer Cain observed that same employee placing the money in a bank bag containing the contents of the cash register.

    
    

14. Officer Cain is familiar with alcoholic beverages and what they smell and taste like and has consumed alcoholic beverages prior to the evening of February 26, 1994.

    
    

15. Officer Cain exited the licensed premises and notified Detective Phillips that he had purchased an alcoholic beverage from an employee after 2:00 a.m.

16. Detective Phillips entered the licensed premises and met with Respondent who was still in the licensed premises. Detective Phillips advised Respondent that undercover officer Cain had purchased an alcoholic beverage from an employee after 2:00 a.m. and that Respondent and the employee would be cited for violation of the municipal ordinance respecting the sale of alcoholic beverages after hours.

    
    

17. Respondent usually has extra food left over from functions that he has at the licensed premises from time to time and the employees and others who were in the kitchen area of the licensed premises after 2:00 a.m., on January 29, 1994, were eating some of that extra food.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

20. The authority of the Petitioner is derived from Chapter 561, Florida Statutes.

    
    

21. Section 561.29(1)(a), Florida Statutes subjects an alcoholic beverage license to suspension or revocation for violations by the licensee or his agents, officers, servants, or employees of any of the laws of this state's . .

    . municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages.

    
    

22. Section 562.41(1), Florida Statutes, authorizes any employee of the Division, any sheriff or deputy sheriff, or any police officer to search a licensed premises for the purpose of determining whether or not the provisions of the beverage law are being violated.

    
    

23. Section 562.41(5), Florida Statutes, states that a licensee, by accepting his alcoholic beverage license, agreed that his licensed premises may be searched without a search warrant by any law enforcement officer during business hours or at any other time when such premises are occupied by the licensee or other persons.

    
    

24. Petitioner has the burden of establishing, by clear and convincing evidence, that Respondent committed the alleged violations set forth in the administrative complaint. See, Pic N' Save v. Division of Alcoholic Beverages and Tobacco, 601 So.2d 245 (Fla. 1st DCA 1992). Petitioner established, by clear and convincing evidence, that Respondent fostered or condoned the illegal sale of an alcoholic beverage after hours in violation of Lakeland City Ordinance Section 6-5 concerning the hours of sale by having knowledge of and allowing an employee to serve an alcoholic beverage to Officer Cain on February 26, 1994. Respondent had prior notice of the municipal ordinance regarding the hours of sale based on earlier warnings issued by local law enforcement officers.

    
    

25. Petitioner failed to establish, by clear and convincing evidence, that on January 29, 1994 Respondent obstructed or hindered the investigation of Officer Mingus by intentionally failing to allow him entry for a period of time to allow employees to remove alcoholic beverages from the bar area. Viewed in

the light most favorable to Respondent, one can only speculate what the patrons were doing inside the premises and Officer Mingus did not observe any sale(s) of alcoholic beverages nor did he view any open containers of alcoholic beverages inside the licensed premises when he entered. Respondent failed to satisfy its burden in this regard.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner enter a final order imposing a civil penalty against Respondent in the amount of one thousand ($1,000) dollars for the above-referenced violation (sale of an alcoholic beverage after hours).

DONE AND ENTERED this 22nd day of November, 1994, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 22nd day of November, 1994.

APPENDIX TO RECOMMENDED ORDER

Rulings on Petitioner's proposed findings of fact: Paragraph 4, rejected, unnecessary and not probative.

Paragraph 10, adopted as modified, paragraph 5, Recommended Order.

Paragraph 16, adopted as modified, paragraph 8, Recommended Order. Paragraph 20, rejected, contrary to the greater weight of evidence,

paragraphs 11 and 12, Recommended Order.

Paragraph 27, rejected as being a recitation of testimony, and not proposed findings of fact.

COPIES FURNISHED:

John M. Houvardas, President El Greco, Inc.

1109 East Main Street Lakeland, Florida 33801

Richard Courtemanche, Jr., Esquire Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007

Jack McRay, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

John J. Harris, Acting Director Division of Alcoholic Beverages

and Tobacco

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 10 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: 94-003547

Orders for Case No: 94-003547