STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 04-1285

) UTER INVESTMENT CORP., d/b/a ) NATURAL JAMES SUPPER CLUB )

CATERING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on July 8, 2004, in Lauderdale Lakes, Florida, before

Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael J. Wheeler, Esquire

Department of Business and Professional Regulation

Northwood Centre, Suite 6 1940 North Monroe Street

Tallahassee, Florida 32399-2202 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the offenses set forth in the Administrative Action and, if so, what action should be taken.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT) issued an Administrative Action against Uter Investment Corp., d/b/a Natural James Supper Club Catering1 (Natural James Supper Club Catering) on May 6, 2003.2 The Administrative Action charged Natural James Supper Club Catering with unlawfully allowing or permitting on its premises on March 24, 2003, the possession of alcoholic beverages in violation of Section 561.29(1)(A) [sic],3 Florida Statutes, through a violation of Section 562.12(1), Florida Statutes; with unlawfully allowing or permitting on its premises on March 24, 2003, the possession or owning of alcoholic beverages on which Florida excise taxes were not paid in violation of Section 561.29(1)(A) [sic], Florida Statutes, through a violation of Section 562.01, Florida Statutes; and with unlawfully allowing or permitting on its premises on

March 24, 2003, the reuse or refill, with distilled spirituous liquors for the purpose of sale, a bottle or other container, which had once been used to contain spirituous liquors, in violation of Section 561.29(1)(A) [sic], Florida Statutes,

through a violation of Section 565.11, Florida Statutes. Natural James Supper Club Catering, through counsel, disputed the material allegations of fact in the Administrative Action and requested a hearing. On April 13, 2004, this matter was referred to the Division of Administrative Hearings.

At hearing, neither the counsel of record4 nor a representative of Natural James Supper Club Catering appeared. DABT presented the testimony of one witness, Captain Patrick Roberts, and entered two composite exhibits (Petitioner’s Exhibits numbered 1 and 2) into evidence.

A transcript of the hearing was not ordered. At the request of DABT, the time for filing post-hearing submissions was set for more than ten days following the hearing. Only DABT filed a post-hearing submission, which has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Natural James Supper Club Catering, located at 4322 North State Road 7, Lauderdale Lakes, Florida, held a catering license issued by DABT. The license number is number BEV 1616571, Series 13CT. This license authorized Natural James Supper Club Catering to provide catering services at its premise's location.

2. Natural James Supper Club Catering is subject to the

   regulatory jurisdiction of DABT as a result of having been issued such a license by DABT.

3. At all times material hereto, the sole owner of Natural James Supper Club Catering was Larnieve Uter.

4. On March 24, 2003, having received a complaint that Natural James Supper Club Catering was selling alcoholic beverages in a manner not permitted by its license, DABT initiated an investigation.

5. On March 24, 2003, Captain Patrick Roberts and special agents of DABT entered the premises of Natural James Supper Club Catering. Accompanied by the husband of Mrs. Uter, Glasford Uter, Captain Roberts and the other agents observed alcoholic beverages that had been used at a prior catering event being stored at Natural James Supper Club Catering; observed alcoholic beverages at Natural James Supper Club Catering that did not have excise tax stamps on them; and observed for sale a bottle of an alcoholic beverage that had been refilled with an unknown spirituous beverage.

6. As to the storing of alcoholic beverages, according to Captain Roberts, the license held by Natural James Supper Club Catering prohibits it from storing alcoholic beverages that were used in a prior catering event. Instead, Natural James Supper Club must return the alcoholic beverages to the vendor from whom they were purchased. Further, Natural James Supper Club must

   possess a contract between it and the vendor; however, no such contract was presented to Captain Roberts or any of the other agents.

7. DABT seized the alcoholic beverages and took pictures of them. DABT seized 191 bottles of wine, 118 containers of spirits, and 959 containers of beer (cans and bottles).

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).

9. DABT has the burden of proof to show by clear and convincing evidence that Natural James Supper Club Catering committed the offenses in the Administrative Action. Department

   of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

10. Section 561.29, Florida Statutes (2001), provides in pertinent part:

    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 her 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 in regard to the hours of sale, service, or consumption of alcoholic beverages or license requirements of special licenses issued under s. 561.20, 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. A conviction of the licensee or his or her or its agents, officers, servants, or employees 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.

          
          

11. Section 562.12, Florida Statutes (2001), provides in pertinent part:

    1. It is unlawful for any person to sell alcoholic beverages without a license, and it is unlawful for any licensee to sell alcoholic beverages except as permitted by her or his license, or to sell such beverages in any manner except that permitted by her or his license; and any licensee or other person who keeps or possesses alcoholic beverages not permitted to be sold by her or his license, or not permitted to be sold without a license, with intent to sell or dispose of same unlawfully, or who keeps and maintains a place where alcoholic beverages are sold unlawfully, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

       
       

12. Section 562.01, Florida Statutes (2001), provides: It is unlawful for any person to own,

    possess, purchase, sell, serve, distribute, or store any alcoholic beverages unless said person has fully complied with the pertinent provisions of the beverage law relating to the payment of excise taxes.

    
    

13. Section 565.11, Florida Statutes (2001), provides:

    
    

    Any person who shall reuse or refill with distilled spirituous liquors for the purpose of sale a bottle or other container which has once been used to contain spirituous liquors, or any person who shall willfully misrepresent or permit to be misrepresented the brand of distilled spirits being sold or offered for sale in or from any bottles or containers, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083 and, when such person is licensed under this law, be subject to have his or her license revoked by the division. The possession of such a refilled or a mislabeled bottle or other container of spirituous liquors shall be prima facie evidence of the violation of this section.

    
    

14. DABT demonstrated by clear and convincing evidence that Natural James Supper Club Catering violated Section 561.29(1)(a), Florida Statutes (2001), through violating Section 562.12(1), Florida Statutes (2001), by unlawfully allowing or permitting on its premises on March 24, 2003, the possession of alcoholic beverages; through violating Section 562.01, Florida Statutes (2001), by unlawfully allowing or permitting on its premises on March 24, 2003, the possession or owning of alcoholic beverages on which Florida excise taxes were not paid; and through violating 565.11, Florida Statutes (2001), by

    unlawfully allowing or permitting on its premises on March 24, 2003, the reuse or refill, with distilled spirituous liquors for the purpose of sale, a bottle or other container, which had once been used to contain spirituous liquors.

15. As to penalty, penalty guidelines are found at Florida Administrative Code Rule 61A-2.022. The penalties are "imposed upon alcoholic beverage licensees and permittees who are supervised by the division [DABT]." Fla. Admin. Code R.

    61A-2.022(1). "The penalties . . . are based upon a single violation which the licensee committed or knew about; . . . or violations which were occurring in an open and notorious manner on the licensed premises." Ibid.

16. Pertinent to the instant matter, for a violation of Section 562.12, Florida Statutes (2001), the penalty is $500; for a violation of Section 562.01, Florida Statutes (2001), the penalty is $1,000 and excise tax; and for a violation of Section 565.11, Florida Statutes (2001), the penalty is $1,000 and a 20- day license suspension. Fla. Admin. Code R. 61A-2.022(11).

17. DABT suggests penalties consistent with the penalty guidelines. Additionally, DABT suggests that Natural James Supper Club Catering forfeit the seized alcoholic beverages. The penalties suggested by DABT are reasonable.

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a final order:

1. Finding Uter Investment Corp., d/b/a Natural James Supper Club Catering in violation of Section 561.29(1)(a), Florida Statutes (2001), through violating Sections 562.12(1), 562.01, and 565.11, Florida Statutes (2001).

2. Imposing a fine of $2,500 and excise tax upon Uter Investment Corp., d/b/a Natural James Supper Club Catering.

3. Suspending, for a 20-day period, the license of Uter Investment Corp., d/b/a Natural James Supper Club Catering.

4. Imposing a forfeiture of the seized alcoholic beverages.

DONE AND ENTERED this 4th day of August 2004, in Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

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 4th day of August, 2004.

ENDNOTES

1/ The evidence showed that the business name is Natural James Supper Club Catering.

2/ The Administrative Action does not reflect when it was filed.

3/ The correct statutory cite is Section 561.19(1)(a), Florida Statutes.

4/ Uter's counsel of record did not file a pleading to withdraw as counsel of record.

COPIES FURNISHED:

Peter Williams, Director Division of Alcoholic Beverages

And Tobacco

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Leon Biegalski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Michael J. Wheeler, Esquire Department of Business and Professional Regulation

Northwood Centre, Suite 6 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Michelle C. Austin, Esquire

7491 West Oakland Park Boulevard, Suite 200 Lauderhill, Florida 33319

Uter Investment Corp. 4322 North State Road 7

Lauderhill Lakes, Florida 33319

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: 04-001285

Orders for Case No: 04-001285