STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1879

) RINCON DE LOS RECUERDOS, INC., ) d/b/a RINCON DE LOS RECUERDOS, )

)

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 December 10, 1980. The Division of Administrative Hearings received the transcript of proceedings on February 25, 1981. The parties were represented by counsel:

APPEARANCES

For Petitioner: Dennis E. LaRosa, Esquire

The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Thomas B. Duff, Esquire

1407 Biscayne Building

19 West Flagler Street Miami, Florida 33130

PRELIMINARY STATEMENT

By Notice to Show Cause, petitioner alleged [Paragraph 1] that respondent "on or about February 12, 1980 . . . through [its] officer NAHIR GIL did knowingly give false information to a . . . Miami Police Officer, concerning alleged . . . murder . . . in or about [respondent's] licensed premises . . . in violation of F.S.S. 561.29(1)(b) to wit: F.S.S. 837.06"; that; on the same date, Nahir Gil [Paragraph 2] "did make a false statement, which he did not believe to be true, under oath, not in an official proceeding . . . in violation of F.S.S. 561.29(1)(b) to wit: F.S.S. 837.012(1)"; that, on the same date, respondent [Paragraph 3] "did employ two (2) illegal aliens at [the] licensed premises . . . in violation of F.S.S. 561.29(1)(b) to wit: Title I U.S.C.

1224"; that, on the same date, respondent [Paragraph 5] "did fail to keep on file at [its] licensed premises all tickets or invoices for purchase of malt beverages and wine for a period of three (3) years . . . in violation of F.A.R. 7A-4.45";' that respondent [Paragraph 6] "on or about April 10, 1979" failed to notify petitioner of "GEOBERTY GIL's resignation as President of the licensed corporation . . . villat[ing] F.A.R. 7A.-2.07(2)"; that respondent [Paragraph 7]

"on or about April 10, 1979 . . . failed to file a sworn declaration [with petitioner] as to the transfer of 50% of the corporate stock from GEOBERTY GIL to MANUEL GIL . . . in violation of F.A.R. 7A-3.37." At the hearing, petitioner abandoned two other counts, Paragraph 4 and 8 of the Notice to Show Cause.

FINDINGS OF FACT

1. Early on the morning of February 12, 1980, Detective Edward Hanek of the Miami Police Department arrived at 533 Southwest 12th Avenue, the address of respondent's bar, Rincon de los Recuerdos. On the sidewalk in an alcove in front of the bar lay the bloody corpse of Guillermo Tey. Detective Hanek tried both doorways into the bar from Southwest 12th Avenue but found both outer doors locked. At both doorways, he was able to reach through the iron bars of the outer doors, push open unlocked wooden doors, and see the interior of the bar. Detective Hanek "followed a blood trail leading from the body to the south door" (R. 24) on Southwest 12th Avenue. Another blood trail led away from the bar. A rear entrance to the bar also featured a locked iron outer gate and a wooden door behind it, unlocked.

   
   

2. Nahir Gil arrived at the bar in a police car and opened the back door at Detective Hanek's request. Inside were glasses and bottles of beer "that appeared to be left in a hurry." (R. 26). Balls on a pool table and change strewn on the bar had the same Flying Dutchman quality. At the scene of the crime, Mr. Gil told Detective Hanek that he had closed the bar at one o'clock, or ten minutes of, that morning; that he sent about ten customers away when he closed; that he did not know of the deceased; and that he did not know the barmaid Anna's last name or where she lived.

   
   

3. Later the same morning, at the Miami Police Station, Detective Hanek interviewed Mr. Gil further and Mr. Gil executed a sworn statement at 6:36 a.m., on February 12, 1980, in which he stated inter alia: that this girlfriend, Melba Bernal, and her sister from Pereira, Columbia, were in the United States without visas, as far as he knew; that he and his brother Manuel owned the bar; that he had spent the day of February 11, 1980, drinking in the bar; that he closed at one instead of three o'clock on the morning of the 12th, because he was drunk, and failed to gather the day's receipts from the cash register for the same reason; that he did not know Guillermo Tey; that he did not know Anna's last name or where she lived; and that he had not seen "anybody lying on the sidewalk with blood coming out." Petitioner's Exhibit No. 2, p. 6. Mr. Gil indicated that his girlfriend had once worked in the bar. He answered, "Yes, sir" to Detective Hanek's question, "What you told me you know, is all you know?"

   
   

4. Later on in the day, Mr. Gil told Detective Hanek that he had heard two gunshots and seen a man lying on the sidewalk just before he closed the bar. Through his lawyer, Mr. Gil got Anna's last name, Vasquez, and address to Detective Hanek. The following day, Detective Hanek visited Ms. Vasquez's apartment, only to learn that she had recently moved.

   
   

5. Nahir Gil admitted to Detective Hanek that Anna was an illegal alien and admitted to John Clayton, an agent of the United States Border Patrol, that the Bernal sisters had been smuggled into this country. Subsequently, one sister returned to Colombia and the other married Nahir Gil.

   
   

6. The parties stipulated that respondent's license, No. 23-00932-2COP, was current at all relevant times; that a certificate of incumbency filed on or about July 7, 1978, reflected that Geoberto Gil owned half of respondent's stock

   and that Nahir Gil owned the other half; that Geoberto Gil transferred fifty shares, all of his interest in respondent, to Manuel Salvador Gil on April 10, 1979, and resigned as director on the date; and that, as recently as April 10, 1979, Nahir Gil acted as secretary of respondent corporation.

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioner is authorized to take disciplinary action against a licensee like respondent whenever it is shown that "the licensee or, in a corporation . .

   . any officers thereof . . . [have violated] any laws of this state or any state or territory of the United States . . . ." Section 561.29(1)(b), Florida Statutes (1979). In the first three paragraphs of the Notice to show Cause, petitioner invokes Section 561.29(1)(b), Florida Statutes (1979), and alleges that Nahir Gil violated Florida law in two respects while an officer of respondent; and that respondent itself, on or about February 12, 1980, violated federal law by employing two illegal aliens.

   
   

8. In executing the sworn statement received as Petitioner's Exhibit No. 2, petitioner contends, Nahir Gil violated Sections 877.012 and 837.06, Florida Statutes (1979), which outlaw perjury, and so violated Florida law while he was an officer of respondent. The parties stipulated that Nahir Gil acted as an officer (corporate secretary) of respondent on April 10, 1979, but no stipulation covered any other date. No evidence that Nahir Gil was an officer of respondent at any time after April 10, 1979, was adduced at the hearing. This falls short of a clear and convincing showing that Nahir Gil was a corporate officer of respondent on February 12, 1980, as alleged in the Notice to Show Cause. See Bowling v. Department of Insurance, No. PP-379 (Fla. 1st

   DCA; February 13, 1981) ("violation of penal statute is not to be found on loose interpretations of problematic evidence", Slip op., pp. 11); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2d DCA 1966).

   
   

9. With respect to the alleged violation of federal law, the proof showed that Anna Vasquez, Nahir Gil, and a second unnamed man worked at the bar on February 11 and 12, 1980, and that Anna Vasquez was an illegal alien. The evidence also suggested that another illegal alien, Melba Bernal, once worked for respondent. But a violation of federal law is not grounds for disciplinary action pursuant to Section 561.29(1)(b), Florida Statutes (1979), and petitioner failed to plead Section 561.29(1)(a), Florida Statutes (1979). See 215 - 22nd Street, Inc. v. Board of Business Regulation, Division of Beverage and Department of Business Regulation, 330 So.2d 821 (Fla. DCA 1976).

   
   

10. Petitioner did not establish the allegations of Paragraphs 5, 6, and 7, and counsel for petitioner conceded as much in his letter of March 9, 1981. No evidence was adduced regarding any ticket or invoice or lack thereof at respondent's premises or elsewhere. The parties stipulated that Geoberto Gil resigned as a director (not a president, as alleged) on April 10, 1979, but there was a dearth of evidence regarding whether or when petitioner got notice of the resignation. The parties stipulated that Geoberto Gil transferred 50 shares to Manuel Gil, but no evidence was adduced to show whether or not a sworn declaration as to the transfer was filed with petitioner or to show what percentage of the corporate stock 50 shares constituted.

RECOMMENDATION

Upon consideration of the foregoing, it is recommended that petitioner dismiss the Notice to Show Cause.

DONE and ENTERED this 13th day of March, 1981, in Tallahassee, Florida.

ROBERT T. BENTON, II, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March 1981.

COPIES FURNISHED:

Dennis E. LaRosa, Esquire The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Thomas B. Duff, Esquire 1407 Biscayne Building

19 West Flagler Street Miami, Florida 33130

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 80-001879

Orders for Case No: 80-001879