STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

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

)

Petitioner, )

)

vs. ) Case No. 97-0838

)

LAKE MONROE INN, INC., d/b/a )

LAKE MONROE INN, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on June 24, 1997, in Orlando, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Thomas A. Klein, Chief Attorney

Department of Business and Professional Regulation

Division of Alcoholic Beverages and Tobacco

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner should revoke Respondent's alcohol beverage license, pursuant to Section 561.501, Florida Statutes (1995), 1/ and Florida Administrative

Rule 61A-2.02 2/ because Respondent failed to pay tax, interest, and penalties of $179,146.56.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Action against Respondent on December 10, 1996. Respondent timely requested an administrative hearing. Petitioner referred the matter to the Division of Administrative Hearings to conduct the hearing.

At the hearing, Petitioner presented the testimony of two witnesses and submitted no exhibits for admission in evidence. Respondent did not appear or otherwise submit any evidence in its defense or in rebuttal to Petitioner's case in chief.

The identity of the witnesses are set forth in the record of the hearing. Neither party requested a transcript. Petitioner timely filed its proposed recommended order ("PRO") on July 10, 1997. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating alcohol beverage licenses. Respondent holds alcoholic beverage license number 69-00735, series 4-COP, for Lake Monroe Inn, 2485 North Highway 17-92, Sanford, Florida.

2. Until sometime after December 1996, Respondent sold alcoholic beverages for consumption on the licensed premises. Respondent was required by Section 561.501 to pay a surcharge tax on such alcoholic beverages.

3. In October, 1996, Petitioner audited Respondent's books

   and records to determine Respondent's compliance with the surcharge tax. The audit period was January 1, 1996, through August 31, 1996.

4. Petitioner's auditors conducted the audit in accordance with generally accepted audit procedures. Petitioner determined the following surcharge tax liability:

   Surcharge Tax $ 47,472.98

   Interest $ 7,961.66

   Penalty $123,711.92 Total Liability $179,146.56

5. On October 10, 1996, Petitioner presented an audit report to Respondent, and the auditors discussed the audit findings with Respondent. Respondent does not contest the audit report and concedes the total liability. Respondent admits that the failure to collect and remit the tax was willful.

6. Subsequent to the filing of the Administrative Action, Respondent went out of business. A lienholder foreclosed on Respondent's license. Another business now operates at Respondent's location.

   CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

8. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that

   Respondent committed the acts alleged in the Administrative Action and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Petitioner satisfied its burden of proof.

9. Section 561.29(1)(a) authorizes Petitioner to impose a range of disciplinary actions against Respondent, including suspension or revocation of Respondent's license. Rule 61A-2.022 authorizes Petitioner to revoke Respondent's license when the failure to comply with applicable law is willful.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order revoking Respondent's alcohol and tobacco license.

DONE AND ENTERED this 21st day of August, 1997, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1997.

ENDNOTES

1/ All references to chapters and sections are to Florida Statutes (1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order.

COPIES FURNISHED:

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Thomas A. Klein, Chief Attorney Department of Business and

Professional Regulation Division of Alcoholic Beverages

and Tobacco Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

Captain Tom Ewing, District Supervisor Department of Business and

Professional Regulation Division of Alcoholic Beverages

and Tobacco

Hurston Building, North Tower

400 West Robinson Street, Room 709 Orlando, Florida 32801

Albert Dale Gustafson, President Lake Monroe Inn, Inc.

Post Office Box 47-400 Sanford, Florida 32771

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000838

Orders for Case No: 97-000838