STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) on February 17, 2009, in Cape Coral, Florida.

APPEARANCES

For Petitioner: Michael J. Wheeler, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32303

For Respondent: (No appearance)

STATEMENT OF THE ISSUE

The issue is whether Respondent violated Section 562.02 and Subsection 561.29(1), Florida Statutes (2007), by possessing on May 3, 2008, four bottles of alcohol that Respondent is not licensed to possess on the licensed premises.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Action against Respondent on June 18, 2008. Respondent timely requested an administrative hearing, and Petitioner referred the matter to DOAH to conduct the hearing.

At the hearing, Petitioner called one witness and submitted one composite exhibit for admission into evidence. Respondent did not appear and did not submit evidence.

The identity of the witness and exhibit and the rulings regarding each are reported in the record of the hearing.

Neither party requested a transcript of the hearing.

Petitioner timely filed its proposed recommended order (PRO) on February 19, 2009. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the agency responsible for regulating alcoholic beverage licenses in the state. Respondent is licensed to possess and sell beer and wine on the premises pursuant to License Number 46-05556, Series 2COP.

2. A random inspection of the licensed premises on May 3, 2008, found four bottles of alcohol that Respondent is not licensed to possess on the premises. The alcohol consisted of: one, 1.75 liter bottle of Kettle One Vodka; two, 750 milliliter bottles of X-Rated Vodka; one, 1 liter bottle of Captain Morgan Rum; and one, 750 milliliter bottle of Tequila 1800 Silver.

3. Petitioner requires each licensee to file a drawing of the licensed premises that, among other things, identifies the location of personal items kept on the premises. Respondent did not identify the bottles of alcohol described in the preceding paragraph as personal items on the drawing that Respondent filed with Petitioner.

   CONCLUSIONS OF LAW

   
   

4. DOAH has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008). DOAH provided the parties with adequate notice of the final hearing.

5. Petitioner has the burden of proof. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Action and the reasonableness of the proposed penalty. Osborne Stern & Co. v. Department of Banking and Finance, 670 So. 2d 932 (Fla. 1996).

6. For the reasons stated in the Findings of Fact, Petitioner showed by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Action. Petitioner also showed the reasonableness of its proposed administrative fine in the amount of $1,000.00.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the acts alleged and violations charged in the Administrative Action and imposing an administrative fine of

$1,000.00.

DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2009.

COPIES FURNISHED:

Michael J. Wheeler, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32303

Marcus Beaubrun

Sushiyaki, Inc., d/b/a Sushiyaki 1306 Cape Coral Parkway East Cape Coral, Florida 33904

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Cynthia Hill, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 08-005960

Orders for Case No: 08-005960