STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

) MR. CHRISTIANS, INC., d/b/a ) GOODIES, )

)

Respondent. )

Case No. 99-5319

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held by videoconference between Tallahassee and Pensacola, Florida, on December 11 and 28, 2000, and in Pensacola on December 29, 2000, before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ralf Michels, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Michael J. Stebbins, Esquire

Michael J. Stebbins, P.L.

504 North Baylen Street Pensacola, Florida 32501

STATEMENT OF THE ISSUE

Whether Respondent's alcoholic beverage license should be disciplined due to the felony conviction of an officer of the corporation.

PRELIMINARY STATEMENT

On August 13, 1999, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Department) filed an administrative action with regard to Respondent alleging, inter alia, that the Department intended

to discipline the license of Respondent because on or about July 15, 1999, Frank J. Masiarczyk, Jr., an agent, servant, or employee of Respondent was adjudicated guilty of a felony.

Specifically, the Department alleged that he was convicted of a violation of Title 18 U.S.C. Section 371, Title 26 U.S.C. Section 7201, and Title 31 U.S.C. Section 5324.

The administrative action also alleged that Linda M. Masiarczyk (Ms. Masiarczyk), an agent, servant, or employee of Respondent, was adjudicated guilty of a felony. Specifically, the Department alleged that she was convicted of a violation of Title 18 U.S.C. Section 371 and Title 31 U.S.C. Section 5324.

The administrative action further alleged that Ms. Masiarczyk was an officer of Respondent.

On September 3, 1999, the licensee, through its agent Ms. Masiarczyk, disputed the alleged facts and requested a

formal hearing. On December 17, 1999, a request for a hearing was filed with the Division of Administrative Hearings. The hearing was set for April 18, 2000. On March 21, 2000, the Department, subsequent to a motion to amend, filed an amended administrative action which continued to allege that Linda M. Masiarczyk was an officer of Respondent but excised the count involving Frank J. Masiarczyk, Sr.

On April 5, 2000, the Department requested a continuance, which was granted. The hearing was set for Friday July 14, 2000. Subsequently, on May 2, 2000, Respondent asked for a new hearing date. The hearing was set for August 11, 2000. On July 26, 2000, Respondent again asked for a continuance because Frank J. Masiarczyk, Jr. and Ms. Masiarczyk, who were witnesses for the Respondent, could not get permission from the federal district court judge in their criminal case to travel from Kentucky to Florida. The case was set for hearing on

October 20, 2000.

On October 17, 2000, the Department moved the Division of Administrative Hearings to relinquish jurisdiction. On October 18, 2000, Respondent filed an Emergency Motion to Stay Hearing. Respondent alleged that the appeal bond of Frank J. Masiarczyk, Jr. and Ms. Masiarczyk had been revoked and that they could not appear as witnesses. On November 2, 2000, the

Motion was denied and the hearing was set for November 27, 2000.

On November 19, 2000, Respondent again filed an Emergency Motion for Stay. The hearing was set for December 11, 2000.

On December 11, 2000, the Department put on its case-in- chief by introducing Petitioner's Exhibits 1 and 2. Exhibit 1 was a certified copy of Ms. Masiarczyk's convictions of the offenses alleged. Exhibit 2 was the Division's license file in the case of Respondent. Both were accepted into evidence.

Respondent asked for additional time to attempt to produce his witnesses. He was given until December 28, 2000. On that date, the hearing was re-convened with the undersigned and the attorney for the Department located in Tallahassee, and counsel for Respondent located in Pensacola. The teleconferencing equipment failed and the hearing could not begin.

The hearing was concluded in Pensacola on December 29, 2000. Respondent offered Respondent's Exhibits 1 and 2, a Notice of Appeal, and an Appellate Brief, respectively, in the case of Ms. Masiarczyk. Both were accepted into evidence.

Respondent offered no other evidence.

On January 5, 2001, the Department, without objection, filed Petitioner's Notice of Filing Additional Information. The material attached consisted of five public records from the Division of Corporations of the Department of State. These records were considered in the preparation of this Recommended Order.

A Transcript was filed on January 11, 2001. The parties timely filed Proposed Recommended Orders which were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with regulating the sale of alcoholic beverages in the state. In accordance with this duty, the Department issued alcoholic beverage license No. 27-00455.

2. The license permitted the sale of wine, beer, and liquor for consumption on the premises, pursuant to a special act of the Florida Legislature. The license is currently being held in escrow by the Division of Alcoholic Beverages and Tobacco of the Department.

3. Mr. Christian's, Inc., was incorporated in Florida on May 11, 1977. The corporate officers were listed as Frank Masiarczyk, Sr., and Linda M. Masiarczyk. The Florida Department of State's spelling of the name is "Mr. Christian's, Inc." In the pleadings and evidence in the case the corporation is also referred to as "Mr. Christian's, Inc." and

   "Mr. Christians, Inc." All of these spellings refer to the corporation which holds alcoholic beverage license No. 27-00455.

4. An application for a change of officers or stockholders of the corporate licensee, filed October 4, 1996, indicated that Frank Masiarczyk, Sr., was president and vice-president of the

   corporation and owned one hundred percent of the stock. It also reflected that Linda M. Masiarczyk was the secretary and treasurer of the corporation.

5. The license had been the subject of a disciplinary proceeding prior to July 2, 1996. This proceeding culminated in a consent order signed by Linda Masiarczyk on July 2, 1996.

6. A Florida Department of State document filed February 3, 1997, reflects that on that date, Linda M.

   Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk.

7. A Florida Department of State document filed on November 17, 1997, reflects that on that date, Linda M. Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk.

8. A Florida Department of State document filed on May 21, 1998, reflects that on that date, Linda M. Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk.

9. A Florida Department of State document filed on

   
   

   March 22, 1999, reflects that on that date, Linda M. Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk.

10. A Florida Department of State document filed on May 16, 2000, reflects that on that date, Linda M. Masiarczyk

    was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk.

11. Linda M. Masiarczyk was convicted in the United States District Court, Northern District of West Virginia, on July 8, 1999, of a violation of Title 18 U.S.C. Section 371, conspiracy to impede the lawful functions of the U. S. Internal Revenue Service, and Title 31 U.S.C. Section 5324, structuring transactions to avoid reporting requirements. These offenses are felonies.

12. On July 19, 1999, Ms. Masiarczyk filed a notice of appeal in the aforementioned case.

13. On December 10, 1999, Ms. Masiarczyk filed an appellate brief with the United States Court of Appeals for the Fourth Circuit. The court has not rendered a decision on this appeal.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes.

15. The material allegations set forth in the administrative complaint must be proven by the Department by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

16. Section 561.15(2), Florida Statutes, provides as follows:

    
    

    (2) No license under the Beverage Law shall be issued to any person who has been convicted within the last past 5 years of any offense against the beverage laws of this state, the United States, or any other state; who has been convicted within the last past 5 years in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, or keeping a disorderly place or of any criminal violation of Chapter 893 or the controlled substance act of any other state or the Federal Government; or who has been convicted in the last past 15 years of any felony in this state or any other state or the United States; or to a corporation, any of the officers of which shall have been so convicted. The term "conviction" shall include an adjudication of guilt on a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime.

    
    

17. Section 561.29(1)(b), Florida Statutes, provides that the Division of Alcoholic Beverages and Tobacco may revoke the license of any person holding a license under the beverage law if there is a violation, ". . . by the licensee or, if a corporation, by any officers thereof, of any laws of this state or any state or territory of the United States."

RECOMMENDATION

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

is

RECOMMENDED:

That the Department revoke alcoholic beverage license No. 27-00455. It is further recommended that the Department

suspend the revocation until such time as Ms. Masiarczk's appeal is decided.

DONE AND ENTERED this 31st day of January, 2001, in

Tallahassee, Leon County, Florida.

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2001.

COPIES FURNISHED:

Ralf Michels, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Michael J. Stebbins, Esquire Michael J. Stebbins, P.L.

504 North Baylen Street Pensacola, Florida 32501

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Richard Turner, Director Division of Alcoholic Beverages

and Tobacco

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

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: 99-005319

Orders for Case No: 99-005319