vs. ) CASE NO. 81-1874
Respondent. )
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 August 4, 1981. The parties were represented by counsel:
For Petitioner: Jorge L. Gonzalez, Esquire
For Respondent: Harold F. X. Purnell, Esquire
After consideration of petitioner's application for transfer of license No. 23-2198-4COP, respondent's director advised petitioner, by letter dated May 29, 1981, of respondent's intention to deny the application, and in accordance with Section 120.60(2), Florida Statutes (1979), gave the following reasons, in haec verba:
The application contains false sworn material statements regarding stock distribution, the landlords name and address,
i.e. the originally filed sworn certificate of incumbency and subsequently filed sworn certificates of incumbency regarding stock distribution indicate the initial certificate to be a false statement and the sworn application reveals that Lee Banner is the landlord when subsequent investigation reveals that Arcala Investments, Inc., is
the real property owner. These false
statements are in violation of F.S.S. 599.791. The Division has been given no logical reason why these sworn statements were falsely submitted.
The applicant has impeded and thwarted the investigation of the application initiated pursuant to Section 561.18, Fla. Statutes by attempting to conceal the nature of the interest held by Arcala Investments, Inc. and Arcala investments, N.V., Netherland Antilles connection in the license and business. By failing aid refusing to provide the fingerprints of persons having an interest in the applicant after Division demand and an agreement with the applicant
to do so, the applicant has violated 561.17, Florida Statutes.
The applicant has failed and refused to disclose financial transactions and source money for the purchase of the business and license thus failing to provide the Division with an audit trail to determine true ownership, control or interest in the license being sought. Section 561.17 & 561.18, Fla. Statutes.
Through guise, ruse and active versus passive resistance the applicant has prevented the Division from carrying out its required investigation under Section 561.15, Florida Statutes. While the disapproval contained in paragraphs (1) and (3) above are believed to be true such assertions are based upon the sketchy and misleading
application documents, meetings and cancelled meetings with the applicants, their attorney or representatives and therefore, the conclusions are at best tenuous based upon the lack of information provided.
Evidence submitted to the Division indicates alternatively that the current licensee Picciolo's American Italian Restaurant, Inc., Caused the sale of the business and the license to Arcala Investments, Inc., (Arcala) and that Arcala has never qualified for the transfer of the license in its name, as required under Section 561.15, F.S. and therefore a purported transfer of the license by Arcala would be unlawful.
Assuming for argument that the transaction from Picciolo's American Italian Restaurant, Inc. to Arcala was lawful the
subsequent sale of the license alone from Arcala to the applicant was not a bonafide sale of the business and therefore the transfer of the license would be prohibited under 561.32 F.S.
Arcala Investments, Inc. and/or Arcala Investments, N.V., a Netherlands Antilles Corporation are believed to
have a direct or indirect interest in the business for which the license is sought, s. 561.17, F.S.
On or about April 21, 1981, the applicant agreed through its representative to furnish further documentation concerning the interests of Arcala Investments, Inc. and Arcala Investments, N.V. to the Division in consideration for the issuance of an additional 30 day temporary license. Upon reliance on such representation the temporary license was issued. On or about May 21, 1981, just prior to the expiration of the referenced temporary license, the Division was informed by the applicant's representative that the requested information agreed to be furnished would not be forwarded for Division review. This final act manifests a clear intent that the applicant has hindered the Division in its investigation as required by s. 561.18 F.S.
Alfredo Thomas Santisi is an Italian-born chef who has had considerable experience in the restaurant business. Twelve years ago he worked at Picciolo's, a restaurant located at 136 Collins Avenue in Miami Beach, Florida. Until July 3, 1980, Samuel D. Picciolo managed the restaurant on behalf of a corporation he controlled, Picciolo's American-Italian Restaurant, Inc. (PAIR) During that time Mr. Picciolo and his wife, Dorothy L. Picciolo, owned the real property that housed the restaurant. Pending disposition of the present application for transfer, PAIR continues to hold a currently valid beverage license, No. 23-02198-4COP.
On one of his visits to his former employer, Mr. Santisi learned that Mr. Picciolo was in failing health and desirous of leasing the restaurant.
After Mr. Santisi had considered and rejected his offer to lease the restaurant, Mr. Picciolo offered to sell the restaurant for $540,000, including a down payment of $200,000. Mr. Santisi discussed this proposition with a business associate, Lee Banner. They decided they were interested, but finances were a problem; they could not raise the down payment on their own.
Jorge L. Gonzalez, Esquire, had money at his disposal which was eventually used for the acquisition. After a welter of confusing and contradictory testimony (and documentary evidence, some of which had been altered), it remains a mystery just who has the beneficial ownership of that money.
On or about June 3, 1980, Mr. Gonzalez offered the vice presidency of Arcala Investment, Inc., a Florida corporation (Arcala FL) to Alexander Prendes, who is married to Mr. Santisi's daughter Stella, and indicated that Arcala Florida would furnish the additional money necessary to acquire the restaurant from PAIR. All of the stock of Arcala Florida is owned by a second corporation that is organized under the laws of the Netherland Antilles, Arcala Investments NV (Arcala NV). Mr. Gonzalez introduced Mr. Prendes to Ranulfo Sosa, Jr., who became president of Arcala FL. Mr. Prendes served as vice president but had been replaced as vice president of Arcala Florida by Carlos Barbara as of June 30, 1980, by which time Mr. Prendes had become secretary of Arcala FL. Manuel Garces and Fernando Birbragher were managing directors of Arcala NV as of June 38, 1988. Respondent's Exhibit No. 1.
On July 3, 1980, Lee Banner, as trustee, as to an undivided two-fifths, and Arcala Florida as to an undivided three-fifths interest, purchased the Picciolo's real property and all of PAIR's assets (except inventory), including PAIR's beverage license. Petitioner's Exhibit No. 2. Lee Banner took as trustee half for himself and half for Mr. Santisi so that each had a one-fifth beneficial interest. The sale price was $547,800.08. One hundred fifty thousand dollars ($150,000) of the two hundred thousand dollars ($200,000) paid to the Picciolos and PAIR, at or before closing, came through Mr. Gonzalez. Respondent's Exhibit No. 7.
The parties agreed to a price of $20,000 for the inventory, but no money changed hands at that time. Instead, on July 3, 1980, petitioner Picciolo's Collins Avenue Corporation (and Lee Banner, as an accommodation maker) executed a note in favor of PAIR for twenty thousand dollars ($20,000), secured by petitioner's "interest as lessee in and to" the real property the Picciolos had sold earlier the same day to Arcala Florida and Lee Banner, as trustee. Petitioner's Exhibit No. 6. From this, it is inferred that petitioner leased the restaurant properly from Arcala Florida and Lee Banner on July 3, 1980, after they had acquired it from the Picciolos.
On July 28, 1980, petitioner applied for a transfer of license No. 23- 8198 4-COP. Petitioner's Exhibit No. 1. According to supporting documents, petitioner's officers on July 3, 1980, were Lee Banner, president, Alexander Prendes, vice-president, and Alfredo Santisi, secretary-treasurer. Petitioner's Exhibit No. 4. Petitioner's stock was owned by Lee Bariner (20 percent), Alfredo Santisi (20 percent) sold Arcala FL (60 percent), according to the same source. Personal questionnaires filed by each of petitioner's officers on July 28, 1980, noted that Arcala Florida had invested $150,000 and that Messrs. Santisi and Banner had each invested $25,000 in petitioner. Petitioner's Exhibit No. 3.
On August 4, 1980, Beverage Officer Carmen V. Gonzalez visited the restaurant and discovered that petitioner was selling alcoholic beverages and depositing the proceeds in its accounts. Beverage Officers Gonzalez and Eddie
L. Alford returned to the restaurant on August 6, 1980. At that time Lee Banner and Alfredo Santisi assured them of the accuracy of the submissions made on July 28, 1980.
On or before Friday, August 8, 1980, Officer Alford issued an official notice advising petitioner that it could not lawfully sell alcoholic beverages. Rene Valdes appeared at respondent's Miami office on August 11, 1980, seeking a temporary license for petitioner. At that time, Mr. Valdes represented that Arcala Florida had no interest in the beverage license or anything else other
than the real property where the restaurant was located. On August 12, 1980, a temporary license issued. Also, on August 12, 1980, petitioner furnished respondent a copy of a bill of sale dated July 4, 1980, Respondent's Exhibit No. 2, purporting to reflect the sale of Beverage License No. 23-02198 4-COP, by Arcala Florida to petitioner for $35,000 with "$5,000,00 (Five Thousand Dollars) down Balance in 24 equal monthly installments of $1,250,00 (One Thousand Two Hundred Fifty Dollars), no interest." Respondent's Exhibit No. 2.
On August 11 or 12, 1980, petitioner submitted a second certificate of incumbency reflecting that Alfredo Santisi and Lee Banner each owned 125 shares of petitioner's stock and that Alexander Prendes owned 250 shares of petitioner's stock. In a written statement dated September 23, 1980, Alexander Prendes explained that the 250 shares of petitioner's stock he held "represent[ed] the interest of ARCALA [FL] . . . to guarantee the full performance [sic] by PICCIOLO's COLLINS AVENUE CORP. . . . or the payment of the
$35,000 dollars for the license and $20,000 dollars for the merchandise." Respondent's Exhibit No. 4. Mr. Prendes never paid any money for the stock. In an affidavit dated August 12, 1980, Alfredo Santisi stated that "the CERTIFICATE of INCUMBENCY and DECLARATION of STOCK OWNERSHIP submitted to the DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO on . . . July 8, 1980 were wrong and that that one submitted [sic] on August 11, 1980 is the correct one." Petitioner's Exhibit No. 20.
After a dispute with Mr. Santisi and three principals of Arcala Florida about how to run the restaurant, Lee Banner sold his stock in petitioner to Ramulfo Soss, Sr. for $30,000. On January 6, 1981, petitioner caused a third certificate of incumbency and declaration of stock ownership to be filed with respondent, reflecting that Ranulfo Soss, Sr. and Alfredo Santisi each owned 250 shares of petitioner's stock.
During the course of respondent's investigation, Mr. Gonzalez failed to keep two appointments he had made with beverage officers; petitioner's bookkeeper once refused to answer Officer Alford's questions, referring him to Mr. Valdes; and various letters and phone calls from petitioner's office to respondent went unanswered. See Respondent's Exhibit No. 5.
After the initial temporary license had expired, respondent extracted an affidavit signed by Ranulfo Sosa, as president of petitioner, reciting that "the fingerprints and personal information pertaining to Fernando Birbragher and Manuel Graces shall be furnished within twenty-one (21) days of the issuance of a temporary permit Petitioner's Exhibit No. 11. On November 17, 1980, a second temporary license issued. On November 26, 1980, Mr. Gonzalez wrote respondent's Captain Harris asking that he "please send me a letter explaining why you need" Petitioner's Exhibit No. 9, fingerprints and personal information pertaining to Birbragher and Graces. By letter dated December 8, 1980, Captain Harris advised Mr. Gonzalez that respondent had concluded that Arcala NV had an interest in petitioner. Respondent's Exhibit No. 6. Petitioner never furnished respondent personal questionnaires pertaining to Graces or Birbragher or arranged to have either fingerprinted. A third temporary license issued on January 23, 1981. Petitioner's Exhibit No. 12.
In an effort to show that Arcala Florida leased the real property housing the restaurant to petitioner, petitioner adduced not one but two (inconsistent) leases at the hearing. Under the terms of one lease, dated the "4st day of July, 1980," petitioner is supposedly obligated to pay $5,000 monthly as rent to Arcala FL. Petitioner's Exhibit No. 15. Under the terms of the other lease, dated August 8, 1980, and signed by Lee Banner on behalf of
petitioner, petitioner is supposedly obligated to pay all taxes, assessments, insurance and upkeep on the building as rent. Petitioner's Exhibit No. 16. The later lease makes no mention of the former. Both are dated after the promissory note secured by petitioner's interest as lessee. According to Lee Banners testimony, however, there never was any Lens fide lease and petitioner never made any lease payments to Arcala FL.
The only office Arcala Florida ever has had is a sort of closet off the kitchen of the restaurant.
CONCLUSIONS OF LAW
Petitioner has failed to show its entitlement to a transfer of Beverage License No. 23-2198 4-COP from PAIR. This license, among other things, was purchased from PAIR by Arcala FL, as to a three-fifths undivided interest, and by Lee Banner, Trustee, as to a two-fifths undivided interest. Neither Arcala Florida nor Lee Banner, however, has applied for a transfer of the license. Only when "a licensee shall have made bona fide sale of the business which he is so licensed to conduct . . . may [he] obtain a transfer of such license to the purchaser of said business Section 561.32(1), Florida Statutes (1979). Even if the problematic evidence* of a sale by Arcala Florida of the license to petitioner were taken at face value, Arcala Florida was never licensed to conduct the business. For that reason, petitioner has no right to a transfer, pursuant to Section 561.32(1), Florida Statutes (1979). Petitioner does not contend, moreover, that a sale of the business look place at the same time as the claimed sale of the license by Arcala Florida to it.
The original certificates of incumbency and declarations of stock ownership filed by petitioner were false in material respects even though they had been sworn to. Section 559.791, Florida Statutes (1979) provides:
Any license issued by the Department of Business Regulation which is issued or renewed in response to an application upon which the person signing under oath or affirmation has falsely sworn to a material statement, including, but not limited to, the names and addresses of the owners or managers of the licensee or applicant, shall be subject to denial of the application or suspension or revocation of the license, and the person falsely swearing shall be subject to any other penalties provided by law.
This is another reason why respondent is authorized to deny petitioner's application for transfer.
Respondent has authority to require petitioner or any applicant for transfer of a beverage license "to file a set of fingerprints on regular United States Department of Justice forms for . . . any . . . persons interested directly or indirectly in the business for which the license is being sought Section 561.17(1), Florida Statutes (1979). The evidence showed that Arcala NV is interested in the restaurant by virtue of its ownership of Arcala FL, which purchased a three-fifths undivided interest in the business, including the beverage license. According to the documents petitioner itself originally
submitted to respondent, Fernando Birbragher and Manuel Garces or Graces are principals in Arcala NV. Respondent's authority to require their fingerprinting is clear. Even after explicitly undertaking in writing to make them available for fingerprinting, however, petitioner failed to do so.
That petitioner deny respondent's license.
DONE and ORDERED this 21st of August, 1981, in Tallahassee, Florida.
ROBERT T. BENTON, II
Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1981.
Jorge L. Gonzalez, Esquire Suite 505
Harold F. X. Purnell, Esquire Division of Alcoholic Beverages
