STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 78-132

)

LA DOMINICANA CORPORATION ) d/b/a LA DOMINICANA RESTAURANT )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on June 1, 1978.

APPEARANCES

Petitioner was represented by counsel:

For Petitioner: Dennis E. LaRosa, Esquire

The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: Mr. Mario Cartas appeared on behalf of respondent and moved ore tenus for a continuance on the ground that his brother-in-law, Jose Isidro Guillama, had told him that he had the flu. The motion was denied.

By notice to show cause, petitioner alleged that respondent, on or about September 20, 1977, "did operate . without providing workmens compensation insurance to . employees in violation of Florida Statute 440.10 and Florida Statute 561.29" and "failed to keep wine and beer beverage invoices on [its] premises for a period of three years, in violation of Rule 7A-4.45." In addition, the notice to show cause alleged that "at your licensed premises, you, LA DOMINICANA CORPORATION, your agent, servant or employee, ISIDRO GUILLAMA, [sic] did have in his possession a lottery ticket . . . in violation of Florida Statutes 849.09()) and Florida Statutes 561.29."

FINDINGS OF FACT

1. On September 20, 1977, Victor Sosa, at the time an employee of petitioner, and Leroy Patten, then as now a field agent for the Department of Commerce, visited respondent's premises. A Mr. Chavez told the investigators that Jose Isidro Guillamo, respondent's sole corporate officer, was not on the premises and could not be reached. In response to Mr. Patten's questions, Mr.

   Chavez said he was ignorant of details about respondent's workmen's compensation insurance.

   
   

2. Mr. Sosa asked Mr. Chavez to produce invoices reflecting purchases of alcoholic beverages. Mr. Chavez replied that most of the invoices were at an accountant's office, but joined Mr. Sosa in looking for invoices behind a counter at which customers sat. In the course of the search, Mr. Sosa noticed a clipboard hanging from a nail. The clipboard contained guest checks used as lottery slips. Nearby drawers yielded paper napkins similar employed. The search never uncovered any invoices on the premises. At no time did petitioner give respondent permission to store invoices off the premises.

   
   

3. On September 20, 1977, and continuously until March 20, 1978, respondent did not maintain in force workmen's compensation insurance for its employees. On September 20, 1977, no notice of workmen's compensation insurance coverage was posted on the premises.

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 561.29(1)(a), Florida Statutes (1977), specifies as one ground for the suspension or revocation of a beverage license,

   
   

   [v]iolation by the licensee or his or its agents, officers . . employees . . . of any of the laws of this state or of the United States . . .

   
   

5. Section 849.09(1)(h), Florida Statutes (1977), makes it a violation of law for any person to

   
   

   [h]ave in his possession any lottery ticket, or any evidence of any share or right in

   any lottery ticket, or in any lottery scheme or device, whether such ticket or evidence of share or right represents an interest

   in a live lottery not yet played or whether

   it represents, or has represented, an interest in a lottery that has already been played;

   
   

   The proof established that writings evidencing shares or rights in a lottery scheme were present on respondent's premises, although it is not clear from the evidence whether Mr. Guillama was personally aware of this.

   
   

6. The other law violation claimed by petitioner is respondent's failure to maintain workmen's compensation insurance in force for its employees. Such insurance is required, by Sections 440.38(1) and 440.43, Florida Statutes (1977), of any employer who has not received "an authorization from the division [of Labor, Department of Commerce] to pay such compensation directly." Section 440.38(1)(b), Florida Statutes (1977). While no direct testimony was adduced as to whether respondent had obtained such authorization, the evidence as a whole, including evidence that an employee of the Department of Commerce sought to persuade respondent to buy workmen's compensation insurance, showed that respondent was in violation of Section 440.43 and Section 561.29(1)(a), Florida Statutes (1977).

   
   

7. Rule 7A-4.45, Florida Administrative Code, requires that invoices reflecting sales of malt beverages and wines "must be kept on file at the

licensed premises of each manufacturer or distributor and vendor for a period of three years . . . Of course, this assumes that sales of malt beverages or wines have taken place. In the present case, it was not proven that respondent purchased any malt beverages or wine within the three years next preceding September 20, 1977. It is unnecessary, therefore, to decide whether permitting an accountant to remove invoices for a brief inspection constitutes a breach of Rule 7A-4.45, Florida Administrative Code.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's license for thirty days and thereafter until respondent shall secure compensation for its employees in accordance with Section 440.38 (1), Florida Statutes (1977).

DONE and ENTERED this 26th day of June, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Dennis E. LaRosa, Esquire The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

La Dominicana Corporation d/b/a La Dominicana Restaurant c/o Jose Isidro Guillama and Mario Cartas

1416 San Marco

Coral Gables, Florida 33134

Docket for Case No: 78-000132

Orders for Case No: 78-000132