STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 95-1279

) SABER ISMAIL ABDELMUTI, d/b/a C & O ) FOOD MART, )

)

Respondent, )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings, held a formal hearing in this matter on June 19, 1995, in Lakeland, Florida.

APPEARANCES

For Petitioner: Richard A. Grumberg, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Tony C. Dodds, Esquire

740 South Florida Avenue Post Office Box 2657

Lakeland, Florida 33806-2657 STATEMENT OF THE ISSUE

Should Respondent's Alcoholic Beverage License be revoked, suspended or otherwise disciplined?

PRELIMINARY STATEMENT

By an Administrative Action dated March 9, 1994, and filed with the Division of Administrative Hearings (Division) on March 15, 1995, Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT) is seeking to revoke, suspend or otherwise discipline the Respondent's Alcoholic Beverage License, number 63-02546. As grounds therefor, it is alleged that Respondent failed to disclose the names of all persons connected directly or indirectly with Respondent's business in violation of Sections 561.17(1), 561.15 and 561.29(1)(a), Florida Statutes. By a Request For Hearing, the Respondent denied the allegations and requested a formal administrative hearing under Section 120.57(1), Florida Statutes.

DABT presented the testimony of Randy West. Respondent testified on his own behalf and presented the testimony of Rebecca Abdelmuti and Steven Portlock. The DABT's exhibits 1 through 7 were received as evidence. Respondent's composite exhibit 1 was received as evidence. Upon completion of the evidentiary portion of the hearing, DABT made an ore tenus motion to amend the pleadings to conform with the evidence by adding a violation of Section 559.791, Florida Statutes. The motion was denied.

A transcript of the proceeding was filed with the Division July 14, 1995.

The parties timely filed their proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law.

   
   

2. On or about October 20, 1992, Rebecca M. Abdelmuti, wife of Saber Abdelmuti, made application to DABT for the transfer of a 2-APS Alcoholic Beverage License owned by Grandma's Pantry of Florida, Inc. d/b/a Grandma's Pantry #6, to a new business, C & O Food Mart, located at 431 S. Central Avenue, Lakeland, Florida, owned by Rebecca M. Abdelmuti. In response to Section II, (B) of the application, Rebecca Abdelmuti listed Saber Abdelmuti as having a direct interest in C & O Food Mart. In Saber Abdelmuti's Personal Questionnaire filed with Rebecca Abdelmuti's application, Saber Abdelmuti indicated that he was investing $25,000 ("same as spouse") in C & O Food Mart. In Rebecca Abdelmuti's Personal Questionnaire filed with her application, Rebecca Abdelmuti indicates that she is also investing $25,000 in C & O Food Mart, using money given to her as a gift by her mother.

   
   

3. DABT issued a temporary 2-APS Alcoholic Beverage License, number 63- 00859, to Rebecca M. Abdelmuti, d/b/a C & O Food Mart.

   
   

4. On October 14, 1992, Rebecca M. Abdelmuti made application to the City of Lakeland for utility service and issued a check to Lakeland Electric for a deposit in the amount of $2,000 drawn on the account of Saber or Rebecca M. Abdelmuti at the Peoples Bank of Lakeland.

   
   

5. Subsequent to the deposit being paid to Lakeland Electric, C & O Food Mart's electric bills, from October 1992, through January 1994, were paid by Rebecca M. Abdelmuti with checks drawn on account number 00361313 in the name of Rebecca M. Abdelmuti with Peoples Bank of Lakeland which account had been opened on October 27, 1992. Saber Abdelmuti was added as a signatory on account number 00361313 on November 2, 1992. Beginning in February 1994, the electric bills were paid by Saber Abdelmuti with checks drawn on a different account in the name of Saber Abdelmuti with the Peoples Bank of Lakeland.

   
   

6. In October 1992, Rebecca M. Abdelmuti had GTE Telephone Company (GTE) install a telephone for C & O Food Mart. From October 1992 through March 1994, Rebecca M. Abdelmuti was listed on GTE's records as the sole person responsible for charges incurred for C & O Food Mart's telephone. The bank records for account number 00361313 with the Peoples Bank of Lakeland (DABT's exhibit 5)

   show the last payment made by Rebecca M. Abdelmuti to GTE for C & O Food Mart was December 3, 1993. Beginning in April 1994, Saber Abdelmuti was listed on GTE's records as the sole person responsible for charges incurred for C & O Food Mart's telephone.

   
   

7. From October 1992, through January 1994, most of the bills for C & O Food Mart were paid by Rebecca M. Abdelmuti with checks drawn on account number 00361313 with Peoples Bank of Lakeland. However, numerous bills during this period were paid by Saber Abdelmuti with checks drawn on account number 00361313 with Peoples Bank of Lakeland.

   
   

8. The Polk County Occupational License for the fiscal year 1992-1993 (October 1, 1992 through September 30, 1993) was issued to Rebecca M. Abdelmuti for C & O Food Mart. The application for the Polk County Occupational License for the fiscal year 1993-1994 (October 1, 1993 through September 30, 1994) was signed by Saber Abdelmuti but issued to Rebecca M. Abdelmuti for C & O Food Mart. On February 21, 1994, an application for the transfer of that license from Rebecca M. Abdelmuti to Saber Abdelmuti was completed and the license was transferred to Saber Abdelmuti for the balance of the fiscal year 1993-1994. The Polk County Occupational License for the fiscal year 1994-1995 (October 1, 1994 through September 30, 1995) was issued to Saber Abdelmuti for C & O Food Mart. The City of Lakeland Occupational Licences numbers 5212 and 5213 for the fiscal year 1992-1993 (October 1, 1992 through September 1993) were issued to

   Saber Abdelmuti for C & O Food Mart. There was no evidence that an occupational license was issued by the City of Lakeland to Rebecca M. Abdelmuti for C & O Food Mart.

   
   

9. On October 31, 1992, Saber Abdelmuti obtained membership in Sam's Club in the business name of C & O Food Mart. Saber Abdelmuti was listed as the primary member and responsible party. Rebecca Abdelmuti and Patel Rajnikan were listed as secondary members.

   
   

10. At the time Rebecca M. Abdelmuti filed her application for an alcoholic beverage license her record indicated a previous Beverage Law violation which apparently DABT considered sufficient to disqualify her for licensure. Rebecca M. Abdelmuti apparently chose not to oppose DABT on its position and requested, by letter dated April 13, 1993, that her application for a 2-APS Alcoholic Beverage License be withdrawn. The request was approved on June 19, 1993.

    
    

11. At all times pertinent to this proceeding, Saber Abdelmuti has held a valid 2-APS Alcoholic Beverage License. On April 12, 1993, Saber Abdelmuti made application for a 2-APS Alcoholic Beverage License in the name of Saber Abdelmuti d/b/a C & O Food Mart, located at 431 S. Central Avenue, Lakeland, Florida. A temporary 2-APS Alcoholic Beverage License, number 63-02546 was issued on April 13, 1993, with an expiration date of July 11, 1993. The application was approved on May 13, 1993, and Saber Abdelmuti continues to hold a valid 2-APS Alcoholic Beverage License, number 63-02546.

    
    

12. The following items were attached to the application in the licensure file, DABT's exhibit 1: (a) a document from Lakeland Electric & Water indicating that the bill for C & O Food Mart, account number 2000751-13-7, was to be billed to Saber Abdelmuti; (b) copies of the City of Lakeland Occupational License, Nos. 5212 and 5213 issued to Saber Abdelmuti for C & O Food Mart, 431 S. Central Avenue, Lakeland, Florida for the fiscal year 1992-1993 (October 1, 1992 through September 30, 1993); (c) a Bill of Sale Absolute wherein Rebecca M. Abdelmuti sold to Saber Abdelmuti "All the inventory and assets in the business named C&O

    Food Mart located at 431 S Central Ave. Lakeland, Florida 33801"; (d) an Amendment To Lease And Fuel Supply Agreement dated April 12, 1993, wherein Rebecca Abdelmuti was released from Lease and Fuel Supply Agreement (Lease) dated October 12, 1992, leaving "Saber Abdelmuti solely responsible for all of the duties and obligations of the Lease under the Lease" as of April 12, 1993 and; (e) a copy of an unsigned document dated April 8, 1993, wherein Saber Abdelmuti agreed to pay Rebecca Abdelmuti the sum of $35,000 with interest at the rate of 8 per cent annually from April 8, 1993.

    
    

13. The Respondent, by signing the application, swore "under oath or affirmation under penalty of perjury . . . that the foregoing information" was "true to the best of" his "knowledge and that no other person or entity except as indicated" in the application had "an interest in the alcoholic beverage license and/or cigarette permit and that all of the . . . persons or entities" listed met "the qualifications necessary to hold an interest in the alcoholic beverage license and/or cigarette permit." The Respondent did not list any other person or entity as having an interest in the alcoholic beverage license being applied for. However, Saber Abdelmuti did list Rebecca Abdelmuti as having advanced him $35,000 for the operation of C & O Food Mart on his Personal Questionnaire filed with his application. As evidenced by the Bill of Sale Absolute, Rebecca Abdelmuti sold to Saber Abdelmuti whatever interest, direct or indirect, that she had in C & O Food Mart. Furthermore, the so called "promissory note" is not collateralized by any interest in C & O Food Mart and therefore, does not represent a security interest in C & O Food Mart. Likewise, there is no evidence of any mortgage (chattel or otherwise) on C & O Food Mart held by Rebecca Abdelmuti.

    
    

14. Saber Abdelmuti applied for and was issued a Certificate of Registration in the name of C & O Food Mart by the Department of Revenue on April 20, 1993, authorizing the collection of sales and use taxes for the State of Florida.

    
    

15. Sometime around March 31, 1993, Rebecca M. Abdelmuti filed a final Employer's Quarterly Federal Tax Return, Form 941, for the quarter ending on March 31, 1993, for C & O Food Mart with the Internal Revenue Service. By notice dated June 7, 1993, the Internal Revenue Service advised Rebecca M. Abdelmuti that the final Employer's Quarterly Federal Tax Return had been received. This filing is consistent with Rebecca M. Abdelmuti transferring the ownership of C & O Food Mart to Saber Abdelmuti. The transfer of ownership is also consistent with Schedule C, Form 1040, Profit or Loss From Business, the W-

    2 Wage and Tax Statement 1993, and the W-3 Transmittal of Wage and Tax Statements 1993, Form 940 EZ, Employer's Annual Federal Unemployment (FUTA) Tax Return, and the final Employer's Quarterly Tax Report and Employer's Quarterly Wage Report to the State of Florida filed by Rebecca M. Abdelmuti during and at the end of the 1993 tax year.

    
    

16. Saber Abdelmuti's tax records for the tax year ending December 31, 1993, concerning C & O Food Mart are also consistent with Saber Abdelmuti assuming ownership and control of C & O Food Mart from Rebecca M. Abdelmuti sometime around April 1, 1993.

    
    

17. Upon assuming ownership and control of C & O Food Mart in April 1993, Saber Abdelmuti hired Rebecca Abdelmuti to manage C & O Food Mart. Saber Abdelmuti's tax records for the tax year 1993 and 1994 show Rebecca Abdelmuti as an employee of C & O Food Mart.

18. On February 21, 1994, Special Agent West, of the DABT conducted an inspection of the premises of C & O Food Mart, located at 431 Central Avenue, Lakeland, Florida. The licensee of record is Saber Ismail Abdelmuti having been issued Alcoholic Beverage License number 63-02546.

    
    

19. On February 21, 1994, during Agent West's inspection of the premises, Rebecca Abdelmuti identified herself as the owner of C & O Food Mart. Later on the same day, Agent West had a telephone conversation with Saber Abdelmuti wherein Saber Abdelmuti told Agent West that he knew Rebecca Abdelmuti did not qualify but he wanted her to have her own business as he did. There was no evidence that Saber Abdelmuti specifically told Agent West that Rebecca Abdelmuti had an interest in C & O Food Mart. However, based on his conversation with Rebecca Abdelmuti and Saber Abdelmuti and the fact that only Saber Abdelmuti's name appeared on the license and Saber Abdelmuti's application for license did not show Rebecca M. Abdelmuti as having an interest in C & O Food Mart Agent West decided to investigate further.

    
    

20. After inspecting the records of C & O Food Mart, Agent West determined that Rebecca M. Abdelmuti had either a direct or indirect interest in C & O Food Mart and that Saber Abdelmuti had failed to divulge the interest of Rebecca M. Abdelmuti in his application for an alcoholic beverage license.

    
    

21. Sometime around the first of March 1994, the C & O Food Mart accounts with GTE and Lakeland Electric were changed to reflect Saber Abdelmuti as being the person solely responsible for the payment of those accounts; the 1993-1994 Polk County Occupational License for C & O Food Mart was transferred to Saber Abdelmuti; and a new bank account was opened in the name of Saber Abdelmuti, d/b/a C & O Food Mart with the Peoples Bank of Lakeland, from which account all C & O Food Mart bills are being paid.

    
    

22. It is clear from the record that Rebecca M. Abdelmuti was employed by Saber Abdelmuti as manager of C & O Food Mart after Saber Abdelmuti assumed ownership and control of C & O Food Mart. While Rebecca Abdelmuti receives a salary for managing C & O Food Mart, her salary is not percentage payment from the proceeds of C & O Food Mart and there is no evidence that Rebecca Abdelmuti has any right to a percentage payment from the proceeds of C & O Food Mart. It is equally clear that Rebecca M. Abdelmuti did not have any interest, as contemplated by the language of the Chapter 561, Florida Statutes, or the language of the application, particularly the language of the oath or affirmation in the application, in Respondent's alcoholic beverage license or the business of C & O Food Mart at the time Saber Abdelmuti filed his application for an alcoholic beverage license or any time subsequent to Saber Abdelmuti filing his application for an alcoholic beverage license.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

24. The Administrative Action served on the Respondent Saber Ismail Abdelmuti charges Respondent, his agents, servants, or employees with unlawfully failing to disclose the names of all persons connected directly or indirectly with the Respondent's business (C & O Food Mart), more particularly, the interest of Rebecca Abdelmuti, in violation of Sections 561.17(1) and 561.15, within 561.29(1)(a), Florida Statutes.

25. Section 561.15, Florida Statutes, in pertinent part provides:

    
    

    1. Licenses shall be issued only to persons of good moral character who are not less than 21 years of age.

       . . . .

       (3) Any license issued to a person, firm, or corporation that would not qualify for the issuance of a new license or the transfer of

       an existing license may be revoked by the division.

       
       

26. Section 561.17(1), Florida Statutes, in pertinent part provides:

    
    

    1. Any person, before engaging in the business of manufacturing, bottling, distributing, selling, or in any way dealing in alcoholic beverages, shall file, with the district supervisor of the district of the division in which the place of business for which a license is sought is located, a sworn application in duplicate on forms provided to the district supervisor by the division. . . If the applicant or any person who is interested with

       the applicant either directly or indirectly in

       the business or who has a security interest in the license being sought or has a right to a percentage payment from the proceeds of the business, either by lease or otherwise, is not qualified, the application shall be denied by the division.

       
       

27. Section 561.29(1)(a), Florida Statutes, provides:

    
    

    1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:

       1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on

          the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States; except that whether or not the licensee or his or its agents,

          officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by chapter 92 or the rules of evidence.

          
          

28. Saber Abdelmuti's failure to change certain C & O Food Mart business account reflecting Rebecca Abdelmuti's previous ownership of C & O Food Mart to

    reflect his ownership after the purchase of C & O Food Mart from Rebecca Abdelmuti does not, without some credible evidence of ownership or interest, make Rebecca Abdelmuti a "person interested with" Saber Abdelmuti "either directly or indirectly in the business". Likewise, Rebecca Abdelmuti identifying herself to Agent West as the owner of C & O Food Mart does not, without some credible evidence of ownership or interest, make her the owner of, or give her an interest in, C & O Food Mart. Moreover, her marital status, standing alone, does not give Rebecca Abdelmuti any type of ownership of, or interest in, C & O Food Mart. Furthermore, I find no authority for denying Rebecca Abdelmuti employment as manager of C & O Food Mart due to her marital status or the fact that she may not qualify for a license.

    
    

29. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

    v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA Fla. 1977). The Department must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d

    292 (Fla. 1987). DABT has failed to show by clear and convincing evidence that Rebecca Abdelmuti had any interest, as contemplated by the statutes or the application, in C & O Food Mart or Respondent's alcoholic beverage license such that it would have required Saber Abdelmuti to list Rebecca Abdelmuti in his application as a person having an interest C & O Food Mart or his license.

    
    

30. DABT made an ore tenus motion at the conclusion of the hearing to amend the Administrative Action to include a violation of Section 559.791, Florida Statutes, which provides for the denial of an application or suspension or revocation of a license issued or renewed by the Department of Business or Professional Regulation in response to an application upon which the person signing under oath or affirmation has falsely sworn to a material statement. The motion was denied. However, had the motion not been denied, the facts of this case does not prove a violation of Section 559.791, Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is recommended that a final order be entered dismissing the Administrative Action filed herein against Saber Abdelmuti.

RECOMMENDED this day 28th of August, 1995, at Tallahassee, Florida.

WILLIAM R. CAVE, 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 28th day of August, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1279

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner's Proposed Findings of Fact.

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2-3(2); 4(10); 5(11); 6(13); 7-8(19); 9(19-20); 10-11(5); 12(7); 13(8); 14(20); 15(9); 16(6); 17(4-5); and 18(19).

Respondent's Proposed Findings of Fact.

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2-3(2); 4(10); 5(11); 6(13); 7-8(19); and 9(14-17).

COPIES FURNISHED:

John J. Harris, Director Division of Alcoholic

Beverages and Tobacco Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Linda L. Goodgame, Esquire General Counsel

Department of Business Professional Regulations

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Richard A. Grumberg, Esquire Office of the General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Tony C. Dobbs, Esquire 740 South Florida Avenue Post Office Box 2657

Lakeland, Florida 33806-2657

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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: 95-001279

Orders for Case No: 95-001279