STATE OF FLORIDA 4 DEPARTMENT OF BUSINESS AND PROFESSION REGULATION DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO DEPARTMENT OF BUSINESS AND Final Order No. BPR-97-07154 Date )-3-47 PROFESSIONAL REGULATION, FILED DIVISION OF ALCOHOLIC Dept. of Business and Professional Regulation BEVERAGES AND TOBACCO, AGENCY CLERK a Wachman, Ase Clerk Petitioner, ms By: laces CASE NO. CA52960232 vs. DOAH CASE NO. 97-0714 DRA LICENSE NO. 52-01266 a; OCALA ALE HOUSE & RAW BAR SERIES NO. 4-COP SRX C 05 d/b/a OCALA ALE HOUSE, Respondent. FINAL ORDER THIS CAUSE came before the Director, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division), and enters this Final Order in the above styled cause pursuant to authority vested by Chapter 120, Florida Statutes. LI TAT 1. On September 20, 1997, the Division issued an Administrative Action against Respondent, a copy of which is attached hereto and incorporated by reference. 2. On April 15, 1997, an administrative hearing was held in 1 of 6 this matter in Ocala, Florida, before Administrative Law Judge Donald R. Alexander, the Division of Administrative Hearings, pursuant to §120.569 and §120.57(1), Florida Statutes. 3. On May 12, 1997, the Administrative Law Judge issued his Recommended Order in this cause. IN {e) T The Division hereby adopts and incorporates by reference the Findings of Fact, numbered 1 through 9, as set forth in the Recommended Order. CONCLUSIONS OF LAW Division hereby adopts and incorporates by reference, paragraphs numbered 10 through 22, of the Conclusions of Law as set forth in the Recommended Order. The Recommended Order has two paragraphs numbered 22. The second paragraph numbered 22 addresess the recommended penalty, and will be hereinafter referenced as paragraph 23. RUL IN TIONS There were no exceptions filed in this case. 2 of 6 ni Penal This Final Order is made after a review of the complete record, including the pleadings filed in this matter and the transcript of the hearing. The Division does not accept the penalty in the Recommended Order. The Division will increase the recommended penalty for the reasons stated below. The Recommended Order relied upon four distinct mitigating factors for concluding that a reprimand or warning was appropriate: the violations were not intentional, the quantities were extremely small, the Respondent had an unblemished record, and that the Respondent received no financial benefit from the gifts. See paragraph 23 of the Recommended Order. In reviewing the mitigation the Division considered the following mitigation criteria: a) The seriousness of the conduct as it relates to the licensee’s duties and responsibilities required by the beverage Laws; b) Action taken with respect to similar conduct by other licensees; c) Previous violations/disciplinary record of the licensee; d) Extraordinary or unusual circumstances beyond the licensee’s control which temporarily diminishes his/her/its 3 of 6 capacity to effectively perform and which substantially contribute to the violation for which discipline is being considered; and e) Preventive measures, corrective/remedial actions implemented by the licensee prior to or after the violations. Alcoholic beverage licensees are presumed to have knowledge of existing laws, and ignorance of the law is no defense. Morey’s Lounge, Inc., v. Department of Business and Professional Regulation, 673 So.2d 538 (Fla. 4th DCA 1996). Therefore, the Division must assume that the Respondent acted knowingly. And the factual record reflects that the violating acts occurred with the knowledge of the Respondent. See Transcript of Final Hearing, at page 18, line 18, through page 20, line 3. The Respondent has presented no evidence of preventive or corrective remedial actions taken before or after the violations, nor did the Respondent offer any evidence of extraordinary or unusual circumstances beyond its control that contributed to the violations. The Division’s penalty guideline in Rule 61A-2.022, Florida Administrative Code, requires a $1,000 civil penalty for a first occurrence violation of §561.42(1), Florida Statutes, and a $2,000 civil penalty for a second occurrence violation. Absent any 4 of 6 mitigation, the Respondent should be sanctioned a $2,000 civil penalty. The Division finds that the mitigation in this matter does not justify the waiver of a civil penalty, nor does it justify that the sanction be limited to the imposition of a reprimand or warning. However, because there are mitigating factors, the Division finds it appropriate to reduce its guideline rule penalty and to impose a civil penalty of $1,000. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ordered that the Respondent shall pay a $1,000.00 civil penalty due on or before the fifteenth (15) day after service of this Final Order. DONE AND ORDERED this 2S day of SEPTEMBER 1997. Q eh AO RICHARD A. BOYD, DIRECTOR Division of Alcoholic Beverages and Tobacco 19940 North Monroe Street Tallahassee, Florida 32399-1020 (904) 488-3227 5 of 6 Copies furnished: Michael J. Burley, Esquire First United Bank Building, Suite 202 250 Tequesta Drive Tequesta, Florida 33469 Miguel Oxamendi Assistant General Counsel Representing the Division Thomas D. Winokur Assistant General Counsel Ocala District Supervisor Chief, Bureau of Law Enforcement Agency Indexing Clerk RIGHT TO APPEAL This Final Order may be appealed pursuant to Section 120.68, F.S., and Rule 9.110, Florida Rules of Appellate Procedure, by filing a Notice of Appeal conforming to the requirements of Rule 9.110(d), Florida Rules of Appellate Procedure, both with the appropriate District Court of Appeal and with this agency within 30 days of rendition of this Order, accompanied by the appropriate filing fee. THIS ORDER SERVED/ISSUED ON BY: DATE: THE TERMS OF THIS ORDER COMPLIED WITH ON SUPERVISOR: 6 of 6

Docket for Case No: 97-000714

Orders for Case No: 97-000714