DEPARTMENT OF BUSINESS REGULATION ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
vs. ) CASE NO. 83-2912
Respondent. )
Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Fort Lauderdale, Florida, on November 4, 1983. The issue for determination is whether Respondent's alcoholic beverage license should be disciplined because of the alleged misconduct set forth in the Petitioner's Notice to Show Cause filed with the Division of Administrative Hearings for hearing on September 12, 1983.
For Petitioner: John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Raymond A. Doumar, Esquire
Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, issued a Notice to Show Cause in this case outlining ten separate allegations of violations of Florida Statutes by Respondent in the operation of its business in Fort Lauderdale, Florida, during the period August 18, 1982, through January 7, 1983. Respondent disputed the proposed action of Petitioner and requested a hearing.
At the hearing, Petitioner presented the testimony of William E. Dias, Michael J. D'Ambrosio, Warren S. Abrahams, Thomas P. Wheeler and Beverly Jenkins, and offered Petitioner's Exhibits 1 through 9. Respondent presented the testimony of Jack P. Hunt and Peter Balcunas.
At all times pertinent to this proceeding, Respondent, Village Zoo, Inc., operated a restaurant and lounge under License 4-COP 16-839SR at 900 Sunrise Lane, Fort Lauderdale, Florida. This address is approximately one block off State Highway A1A, adjacent to the beach at Fort Lauderdale and is in an area heavily populated by students and youths at various times of the year-- primarily during college vacation periods.
On August 18, 1982, Beverage Officer Thomas P. Wheeler, in the company of Beverage Officer Beverly Jenkins, issued the Village Zoo a violation notice for storing beer off the physical premises of the license holder. The beer in question was being stored in a separate building located at least 15 feet across an alley from the Village Zoo lounge. Respondent did not have the permit required for off-premises storage.
Wheeler was back in Respondent's lounge on November 5, 1982, in an undercover capacity. At that time, he entered through the front door, which was manned by a doorman backed up by an off-duty policeman on the sidewalk outside. The doorman was collecting a one dollar entrance fee from each patron, but did not ask Wheeler or anyone else in Wheeler's hearing for any identification or proof of age. In April, 1982, Beverage Officer Jenkins, in a prior visit, had in writing advised Mr. James Doud, purportedly an owner or manager of the Village Zoo, that it was a violation of Florida Statutes to serve alcoholic beverages to minors and that they should seek identification or proof of age from customers. To be sure, Respondent does have an individual at the door and an off-duty policeman outside whose duties are ostensibly to check this. However, neither Officer Wheeler nor any of the other agents saw any checking at the door by the doorman or the off-duty policeman on the night of November 5, 1982, although, according to Wheeler, the people in front of him going in were questionable enough, from what he saw of their profiles, that they should have been checked. Mr. Hunt, sole stockholder and officer of Respondent corporation, admits that while he has told his managers to check identifications and proof of age, to have someone on the door to check this, to have the waitresses check, and to emphasize this in their staff meetings, he has no written instructions out on this. At one time, there was a manual with all requirements in it, but he does not know where it is now.
That same evening, William E. Dias, age 18, born August 31, 1965, entered the Village Zoo by entering through the main entrance with some friends. No one asked him or his friends for their identifications or proof of age at the door when they entered, or later when he ordered and was served a beer at the bar on the first floor. When he ordered his beer, a Miller's, the area was crowded, and people were standing three deep at the bar. After he got his beer, he went out on the balcony, where he was taken into custody by a Division of Alcoholic Beverages and Tobacco agent.
Somewhat later, on the afternoon of December 21, 1982, Beverage Agent D'Ambrosio, in the company of Beverage Agent Jenkins, came back to the Village Zoo to reinspect the premises as a follow-up to the August 18, 1982, visit and to collect some records that had previously been requested. On this visit, they spoke with David Doud, who identified himself as a cook, and Mrs. Joni Hayworth, who identified herself as a manager. This inspection was also to determine if any other corporations had an interest in the business. During this inspection, the agents asked for the business records, including the alcoholic beverage invoices required by statute to be kept on the premises for three years. In response, D'Ambrosio and Jenkins were given some food purchase records and some
canceled checks, but not the alcoholic beverage records requested. Mr. Doud indicated no other records were there, but were kept in the accountant's office in Pompano Beach. On the basis of the inadequacy of the records presented on December 21, 1982, Agent D'Ambrosio, on that date, issued a written notice which he handed to Doud and Hayworth, directing them to make all records pertaining to the business, including payroll records, canceled checks, general ledgers, sales journals and cash disbursements from the period January 1, 1982, to that date available to Division of Alcoholic Beverages and Tobacco personnel by noon on December 28, 1982. Notwithstanding Mr. Hunt's testimony that the records were in the Bond Building immediately across the alley from thee Village Zoo, the fact remains they were not made available to the beverage officers when requested and were not presented as directed on December 28, 1982.
During that same visit on December 21, 1982, D'Ambrosio and Jenkins also looked throughout the facility to determine how many seats for dining were available. The license held by Respondent requires 150 seats for dining purposes be maintained on the premises. This does not mean that all 150 seats must be set up at tables for immediate use. However, the facility must maintain
150 seats available for use, if needed, on the premises, though a portion of that number may be kept aside in on-premises storage. In this instance, the search of the premises revealed only 64 total dining chairs.
This same visit, on December 21, 1982, also revealed that Respondent was still storing alcoholic beverages off premises in the building across the alley without a permit to do so. At this time, Mr. Doud indicated they had no other place to store it. The building where the beer is kept is owned by Mr. Hunt, who leases it to the Respondent, Village Zoo, Inc., the corporation of which he is sole officer, director and shareholder. At one time, an off- premises permit had been issued for this building, but this was for a different license; and Doud was told, at the first visit by the beverage agents, that the prior permit was no good.
On January 25, 1983, D'Ambrosio and Jenkins returned to the Village Zoo for an inspection based on an application by Respondent to make a Mr. Sumash a corporate officer. During this visit, Jenkins did another seat count and determined there were still only 64 seats available in the entire place for dining. This count included all seats except bar stools.
As to the order of the health department, during a routine quarterly inspection of Respondent's facility on December 22, 1982, Warren S. Abrahams, a sanitarian with the Broward County Health Department, observed major violations of the sanitary code, such as roach infestation, toxic cleaners on the food preparation surfaces, unsafe and unsanitary cabinets, dirty underwear in the beer cooler, and the like. In addition, the permit for the current year was not displayed as required. Violation notices for the above were receipted for by Mr. Doud.
When Mr. Abrahams came back for a follow-up inspection on January 6, 1983, he found no real improvement in the prior existing conditions. The roaches were still there, and the food temperature was improper. As a result, he issued a closure notice in which the Village Zoo was ordered not to reopen the food establishment until authorized by the health authority. When this written notice was discussed with Mr. Doud, he became irate and stated he would not close. Doud then sent in Mr. Mitchell, the day manager, who receipted for the notice.
Mr. Abrahams returned at 3:30 p.m. on January 6, 1983, and found that notwithstanding the closure order, the Respondent's restaurant had not closed. He stood outside the door and observed sales of food and beverages. When he came back at 9:00 that night, the same activity was going on, as it was the following day, January 7, 1983, when he returned with another sanitarian, Mr. Mores. At this time, they found food and beverage sales going on, and the previously cited unsanitary conditions still existed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
The Notice to Show Cause issued by Petitioner reflects ten separate allegations of misconduct which, if proven, constitute violations of the Florida Statutes and/or Rules of the Division of Alcoholic Beverages and Tobacco.
In the first cited allegation, Petitioner contends that Respondent unlawfully stored alcoholic beverages in a cooler off the licensed premises without an off-premises storage permit, in violation of Section 562.03, Florida Statutes (1981) , and Rule 7A-4.20, Florida Administrative Code. The statute reads:
It is unlawful for any vendor to store or keep any alcoholic beverages except for the personal consumption of the vendor, his family and guest in any
building or room other than the building or room shown in the diagram accompanying his license application or in another building or room approved by the division.
and the pertinent portion of the cited rule reads:
Manufacturers, rectifiers, distributors, vendors and cooperatives or pool buying vendors who require additional storage outside of their licensed premises must obtain a permit therefor. . .
The evidence presented by Petitioner clearly shows that on both occasions, beer was stored in a cooler in a building across the alley from the licensed premises. The fact that the second building was owned by the sole stockholder of the license holder, or that the license holder applied unsuccessfully for a permit, does not avoid the necessity for the permit. The requirement exists for a permit to store alcoholic beverages off the licensed premises, and it was clearly shown here that Respondent did not have one as alleged.
In the second allegation, Petitioner charges Respondent with unlawfully selling alcoholic beverages to William E. Dias, a minor under the age of 19, in violation of Section 562.11, Florida Statutes (1981). This statute states, at Subsection (1)(a):
It is unlawful for any person to sell, give, serve, or permit to be served alcoholic beverages to a person under
19 years of age or to permit a person under 19 years of age to consume said beverages on the licensed premises. Anyone convicted of violation of the provisions hereof shall be guilty of a
misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
Here, the evidence shows that Mr. Dias was under the age of 19 when, on November 5, 1982, he entered Respondent's premises, ordered a beer, an alcoholic beverage, and was served it by Respondent's agent. The weight of the evidence indicates Mr. Dias was not asked for any proof of age by any employee of Respondent. The fact that the Respondent's premises are located deep in the area frequented by the college crowd does not excuse Respondent's failure, but instead compounds it. Presumably, Respondent is aware of the laws of the State of Florida regarding the sale of alcoholic beverages to minors. Its location in that area most frequented by the younger crowd imposes a greater responsibility to insure it has procedures in effect to prevent from happening just what happened here.
In regard to the other four similar allegations, Petitioner presented no evidence at all concerning service to Wilson and Ziegler. With regard to the allegations concerning Heatherman and Esler, Petitioner offered a transcript from a prior hearing in a different case pertaining to the same parties which contained the testimony regarding these alleged incidents for the said testimony of Heatherman and Esler. It was determined that while both individuals were out of the State at the time of the hearing, no effort was made to depose them, nor did Petitioner show any basis for the introduction of this transcript other than the fact that the proposed witnesses were out of the State. The transcript was not received in evidence. The only other evidence to show the age of the two parties who were served by Respondent on November 5, 1982, was the written statement of Esler dated November 9, 1982, in which he admitted he was only 17 years of age. This statement was clearly hearsay evidence which standing alone cannot support a finding of fact. Under the above circumstances, there was, therefore, no evidence to support a conclusion that a violation occurred, as alleged, in any of the four aforementioned situations.
The evidence in the form of the testimony of Officers D'Ambrosio and Jenkins clearly shows that when they requested Respondent's alcoholic beverage records, along with all other records, during their visit on December 21, 1982, the records were not presented. This is a violation of Rules 7A-4.43 and 7A- 4.45, Florida Administrative Code, which state in pertinent part:
4.43(12)(b)
The signed invoice or sales ticket must be kept by the distributor in customer files for a period of three years from the date of delivery. An additional copy of each invoice or sales ticket must be filed numerically and by calendar month and kept for a period of three years. These invoices or sales tickets must be kept on the licensed premises of the distributor as part of his accounting records.
4.45:
All such sales tickets or invoices must be kept on file at the licensed
premises of each manufacturer or distributor and vendor for a period of three years from the date such sales tickets or invoices shall be opened to inspection .by any authorized employee of the Division during regular business hours.
The fact that the other records were still not available on December 28, 1982, after being lawfully requested by the beverage officers on their December 21, 1982, visit brings Respondent within the purview of Section 561.29(1)(e) Florida Statutes (1981), which states:
The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when
it is determined or found by the division upon sufficient cause appearing of:
(e) Violation by the licensee, or, if a corporation, by any officer or stockholder thereof, of any rule or rules promulgated by the division in accordance with the provisions of this chapter or of any law referred to in paragraph (a), or a violation of any
such rule or law by any agent, servant, or employee of the licensee on the licensed premises or in the scope of such employment.
and thereby supports disciplinary action.
Respondent is also charged with violating Rules 7A-3.14 and 7A-3.15, Florida Administrative Code, and Section 561.20, Florida Statutes (1981), by failing to maintain the 150 seats for dining as are required for its particular license type. The rules in question permit a special type of license, an SR license, to restaurants which occupy 2,500 or more square feet and have accommodations for 150 or more patrons. Under the criteria found in Rule 7A-
3.15 for determining whether the holder of an SR license is a bona fide restaurant is (e), which states that it must be equipped with the necessary china, tableware and seating (emphasis supplied) to handle the minimum, which here is 150 patrons.
The testimony of D'Ambrosio and Jenkins clearly shows that on neither of the visits on December 21, 1982, or January 25, 1983, did Respondent have more than 64 seats, excluding bar stools. This number is far short of the 150 required by the rule to meet the criteria set for the license Respondent holds and constitutes a clear violation.
The last allegation concerns operating the facility after being duly and lawfully ordered to close it by the County Health Department. Here, the evidence clearly shows the need for the closure. It also shows, in the reaction by Mr. Doud, the attitude of the management when the closure order was issued on January 6, 1983. Mr. Abrahams' testimony to the effect that he subsequently revisited the Respondent's facility twice after the closure order was issued and
found it still in full operation, as alleged, and Mr. Doud's previously cited reaction to the closure order is clear indication the failure to close was not caused by a misunderstanding. Therefore, the alleged violation has been proven, since Section 561.29(1)(d) , Florida Statutes (1981), permits disciplinary action when Respondent is shown to be:
Maintaining licensed premises that are unsanitary or are not approved as sanitary by the county board of health or the Department of Health
and Rehabilitative Services, whichever has jurisdiction thereof.
The parties have submitted proposed recommended orders which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
That Respondent's license be suspended for thirty (30) days and that it pay a civil fine of $2,000.
RECOMMENDED this 6th day of January, 1984, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1984.
John A. Boggs, Esquire Department of Business
Raymond A. Doumar, Esquire 1177 Southeast Third Avenue Fort Lauderdale, Florida 33316
Mr. Gary R. Rutledge Secretary
Mr. Howard M. Rasmussen Director, Division of Alcoholic
