STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 78-682

) THE HOSPITAL DISCO, INC., t/a ) CARMEN'S RESTAURANT AND DISCO, )

)

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

For Petitioner: Dennis E. LaRosa, Esquire

The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: No appearance.

By notice to show cause, petitioner alleged, in eight counts, that respondent's agent made seven purchases of alcoholic beverages "after being prohibited from doing so on July 6, 1977, contrary to F.S. 561.42(5)." In addition, the notice to show cause alleged that respondent "did fail to submit a certified copy of the minutes of the stockholders meeting, changing corporate officers, to the Division of Alcoholic Beverages and Tobacco, in violation of Rule 7A-2.07;" "failed to file a sworn declaration as to control of the corporation stock, as required by Rule 7A-3.37" and "failed to disclose the names and addresses of persons interested directly or indirectly with you in the business . . . contrary to F.S., 561.17. . . "

FINDINGS OF FACT

1. On July 6, 1977, petitioner caused respondent to be listed, for alleged noncompliance with Section 561.42(3), Florida Statutes (1977), in a notice to distributors of alcoholic beverages, according to which respondent was "prohibited from purchasing . . . any alcoholic beverages except for cash until further notice." Petitioner's exhibit No. 9. On July 29, 1977, Anthony

   J. Foglietta purchased ten cases of beer for respondent from Universal Brands, Inc., for which he wrote a check in the amount of sixty-four and one half dollars ($64.50). Petitioner's exhibit No. 2. In a separate transaction on the same day, Mr. Foglietta purchased three cases of beer for respondent from

   Universal Brands, Inc., for which he wrote a check in the amount of nineteen dollars and thirty-five cents ($19.35). Petitioner's exhibit No. 4. For the same amount, on August 9, 1977, Mr. Foglietta purchased three cases of beer for respondent from Universal Brands, Inc., which he paid for by check.

   Petitioner's exhibit No. 6. Two days later Mr. Foglietta bought three more cases of beer for respondent, which he paid for in cash.

   
   

2. On the night of August 5, 1977, Mr. Foglietta purchased 18 to 20 bottles of liquor for respondent from The Beacon Bar, paying with a check in the amount of two hundred forty dollars and seventeen cents ($240.17). Petitioner's exhibit No. 10. On the same date, Mr. Foglietta purchased other liquor for respondent from Three Spirits, Inc., which he paid for with a check in the amount of one hundred seventy-nine dollars and twenty-six cents ($179.26). Petitioner's exhibit No. 11. Four days later Mr. Foglietta, bought for respondent additional alcoholic beverages from Three Spirits, Inc., which he paid for with a check in the amount of sixty-one dollars ($61.00), Petitioner's exhibit No. 12. On August 30, 1977, respondent's bar was well stocked with alcoholic beverages, although the notice issued on July 6, 1977, had not been rescinded.

   
   

3. On July 14, 1977, Mr. Foglietta and Mr. Joseph P. Sgroi signed a corporate resolution, which was stamped with the seal of The Hospital Disco, Inc., and left with Landmark First National Bank; the resolution recites that Messrs. Foglietta and Sgroi were operating vice-president and president, respectively, of The Hospital Disco, Inc. Petitioner's exhibit No. 14. Messrs. Foglietta and Sgroi also signed a second corporate resolution to like effect. Petitioner's exhibit No. 13. Petitioner's records indicate that James C. Lorigo owned all of respondent's stock and was respondent's president, vice-president and secretary at the time of the hearing. Petitioner's records did not reflect the filing of any application for a license transfer, at the time of the hearing.

   
   

   CONCLUSIONS OF LAW

   
   

4. In purchasing liquor for respondent by check, after petitioner issued its notice on July 6, 1977, respondent's agent, Mr. Foglietta, violated Section 561.42(5), Florida Statutes (1977)

   
   

5. Section 561.17, Florida Statutes (1977), requires that "[a]ny person, before engaging in the business of . . . dealing in alcoholic beverages, shall file . . . a sworn application. . . ." The evidence established that Mr. Foglietta is engaged in operating respondent, without having applied for a license to do so.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

1. That petitioner assess a civil penalty of one hundred dollars ($100.00) against respondent.

   
   

2. That petitioner revoke respondent's license on the thirtieth day after entry of this order unless respondent shall by then have complied with Rules 7A-

2.07 and 7A-3.37, Florida Administrative Code, and unless by then Mr. Foglietta

and any other person associated with respondent who is required by law to do so shall comply with Section 561.17, Florida Statutes (1977).

DONE and ENTERED this 28th 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

The Hospital Disco, Inc.

t/a Carmen's Restaurant and Disco 928 N. Federal Highway

Ft. Lauderdale, Florida

F. Ronald Mastriana, Esquire 2750 North Federal Highway

Ft. Lauderdale, Florida 33306

Docket for Case No: 78-000682

Orders for Case No: 78-000682