STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-478

)

GEORGE ARANGO, d/b/a Spanish ) Golden Tavern, )

)

Respondent. )

)

RECOMMENDED ORDER APPEARANCES

For Petitioner: William A. Hatch, Esquire

Staff Attorney

Department of Business Regulation The Johns Building

Tallahassee, Florida 32304

For Respondent: Emmett Abdoney, Esquire

First Financial Tower, Suite 2115 Tampa, Florida 33602

This matter was brought before the undersigned Hearing Officer on three separate Notices to Show Cause filed by the Petitioner against the Respondent, a license holder of that Division. Before evidence was taken on these matters, certain stipulations were read into the record. As far as the first Notice to Show Cause, Division of Beverage Case No. 6-75-69-A, which contained ten different counts against the Respondent, the Division of Beverage announced it was withdrawing counts six through ten and would only proceed on counts one through five. Further, the parties announced that none of the facts alleged in counts one through five were challenged except for the fact that the named individuals in each count were not stipulated to be employees and that the Division of Beverage would go forward with whatever proof it had on those counts. In the second Notice to Show Cause, Division of Beverage Case No. 6-75- 130-A, it was stipulated that counts one through five occurred as charged except it was not stipulated or agreed to by the Respondent that the named individual in those counts was an employee of the licensed premises or of the Respondent.

No agreement was reached as to count five and the Division of Beverage assumed the burden of going forward with whatever proof they had on that count.

The third Notice to Show Cause, Division of Beverage Case No. 6-75-182-A, the Division of Beverage withdrew the first count and announced it would go forward on count two alone. The remaining counts in all three Notices were consolidated for purposes of this hearing.

The charges that were considered at this hearing were therefore as follows:

In Case No. 1 the Respondent was charged that on various days between May

20 through May 29, 1975, Dominick Tavalaiccio, Jr. and Pedro Anthony Perez did sell cocaine in violation of Florida Statute 893.13 and 561.29.

In the second Notice to Show Cause, counts one through four were substantially similar to the counts previously mentioned except the dates referred to were May 27, 1975, June 10, 1975, September 24, 1975. Count five on the second charge alleges that Respondent did unlawfully employ a person, Pedro Perez, on the licensed premises, who does not meet the qualifications required in Florida Statute 562.13.

The final charge in the third Notice to Show Cause alleges that on or about November 13, 1975, the Respondent failed to manage and maintain control of all business conducted on the licensed premises by allowing Pedro Perez to maintain partial control of the premises contrary to Rule 7A-3.17, Florida Administrative Code.

It was also stipulated that the Respondent, Mr. Arango, was not on the premises nor involved in any of the drug transactions which are described in the above counts. It was also agreed that the Respondent received proper notice of the hearing and holds the beverage license as shown in the Notices described above.

The first witness to testify was Agent W. R. Wigs, a beverage officer with the Division of Beverage. Agent Wigs testified that he interviewed Pedro Perez on November 13, 1975 at the Spanish Garden Tavern, the licensed premises in this case. At that interview Perez stated that he ran the kitchen and had money invested in the bar. Perez also stated that he bought part of the kitchen equipment and had invested about $2,500.00 in various kitchen equipment.

Exhibit No. 1, a receipt for this equipment, was introduced into evidence by the Division of Beverage. Perez stated that he had a verbal agreement to split the profits with Mr. Arango. He also stated he had to keep an eye on the barmaid so that she did not steal from him. Perez told Agent Wigs that he was not an employee of the Spanish Garden Tavern or Mr. Arango. Mr. Arango was present for part of this interview and told Agent Wigs that Perez had some money invested in the premises and bought the kitchen equipment.

The next witness to testify was Charles E. Guthrie, Division of Beverage officer. Officer Guthrie testified he interviewed the Respondent, Arango, on October 21, 1975. At that time Mr. Arango told him Perez had money invested in the kitchen and that the kitchen was a separate business from the bar but that the proceeds from the kitchen and the bar were pooled and the profits were split between he and Perez.

The licensed premises are open between 11:00 a.m. and 1:00 a.m. The Respondent, Mr. Arango, stated that he was generally only there a short time and that Perez was responsible for the operations of the premises. Agent Guthrie stated also that on June 3, 1975, when he visited the licensed premises, he observed Perez working behind the bar, bartending. He said Perez served drinks, took money and worked the cash register. On August 28, 1975, Guthrie saw Perez sell liquor at the bar and take money from the customers. On October 22, 1975, he again observed Perez working as a bartender in the licensed premises.

From the above it is concluded that Pedro Perez was an employee of the Respondent and worked in the licensed premises. Furthermore, the Respondent, Arango, was aware that he was a convicted felon during all the time that is material to these charges. No evidence was presented regarding the identity or

circumstances surrounding the charges mentioning Dominick Tavalaiccio, Jr. except Mr. Arango, when he testified, stated that Dominick Tavalaiccio, Jr. had a "person in charge card" when he was at the licensed premises. This is not sufficient proof to justify a finding that Dominick Tavalaiccio, Jr. was an employee of the licensed premises.

It is therefore concluded that with regard to the charges in the first Notice to Show Cause, Division of Beverage Case No. 6-75-69-A, insufficient proof was presented with regards to counts one and two. With regard to counts three through five, the evidence supports a finding of guilt on the part of the Respondent

With regard to Case No. 2, Respondent is guilty of counts one through five and with respect to Case No. 3, insufficient proof was presented to justify a finding of guilt on count two.

RECOMMENDATION

Adequate grounds having been demonstrated by the Petitioner, it is therefore recommended the Respondent's license be revoked.

DONE and ORDERED this 10th day of May, 1976, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

William A. Hatch, Esquire Staff Attorney

Department of Business Regulation The Johns Building

Tallahassee, Florida 32304

Emmett Abdoney, Esquire First Financial Tower Suite 2115

Tampa, Florida 33602

Charles Nuzum, Director Division of Beverage

Department of Business Regulation The Johns Building

Tallahassee, Florida 32304

Docket for Case No: 76-000478

Orders for Case No: 76-000478