STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1504

)

DONDI'S ENTERPRISES, INC., )

d/b/a MANATEE'S, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Deland, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on February 1, 1990. The parties filed proposed recommended orders on February 14 and 16, 1990. The attached appendix addresses proposed findings of fact by number.

The respondent did not appear through counsel, although its president and majority shareholder was present at the hearing and actively participated.

Petitioner appeared through counsel.

APPEARANCE

For Petitioner: John B. Fretwell, Esquire

725 South Bronough Street Tallahassee, FL 32399-1007

STATEMENT OF THE ISSUE

Whether Petitioner should take disciplinary action against respondent's license for the reasons alleged in the notice to show cause dated January 23, 1989, as amended effective November 29, 1989?

PRELIMINARY STATEMENT

By notice to show cause, petitioner alleged that "[o]n December 23, 1988 and January 4, 1989, . . . [respondent or its] corporate President, DON DI NOFRIO, unlawfully set up, promoted, or conducted a Super Bowl football pool for money or other thing of value, in violation of F.S. 849.01 and F.S.

561.29(1)(a)"; and that "[o]n or about January 4, 1989, . . . [respondent] did purchase or acquire alcoholic beverages, Lady Velvet Liqueurs, from a vendor, contrary to section 561.14(3) F.S."; and that on the same date respondent or its "President, DON DI NOFRIO, possessed or permitted someone to possess at or in [its] licensed premises, alcoholic beverages not authorized by law to be sold by [respondent], contrary to section 562.02 F.S." As amended, the notice to show

cause alleges that the conduct of the football pool also violated Section 849.09(1)(a), Florida Statutes.

On receipt of respondent's request for hearing, Petitioner's Exhibit NO. 3, petitioner referred the matter to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989).

FINDINGS OF FACT

1. Respondent holds a 2 COP license, No. 74-01941, for Manatee's, a bar in Orange City, authorizing the sale of beer and wine, but not "spirituous liquors," for consumption on the premises.

   
   

2. At about one o'clock on the afternoon of December 23, 1988, in response to a complaint, Joseph Ogonowski, a law enforcement officer in petitioner's employ for some 29 years, entered Manatee's, in plain clothes.

   
   

   Super Bowl Pool

   
   

3. Conducting himself "like a patron, he struck up a conversation with Barbara, who asked him if he wanted to split the cost of a $10.00 chance in a football pool. When he answered affirmatively, a man behind the bar named Bob produced a cardboard chart. Petitioner's Exhibit No.2.

   
   

4. On the obverse, under the legend "SUPER BOWL XXIII SUN JAN 22, 1989,"

   100 squares were numbered in sequence. The reverse contained two columns of lines, also numbered from one to 100. Names appeared in some squares and on some lines.

   
   

5. After Barbara and Mr. Ogonowski decided on the number 11, their names were entered both in the square numbered 11 and on line 11, on the back of the chart where Mr. Ogonowski, as instructed, also wrote down his telephone number.

   
   

6. John "Pete" Peterson offered to share another chance with Mr. Ogonowski (if he contributed five dollars to its purchase), and in this way the latter acquired a half-interest in a second chance. After Pete picked 6 and Mr. Ogonowski picked 7, their names went into square and on line 76.

   
   

7. In the course of assuring him that he need not be present at Manatee's for the Super Bowl buffet in order to win the pool, Denise, a bar maid, pointed out a woman (whose name nobody who testified could recall) who had entered the establishment after he had. Mr. Ogonowski saw her unremembered name deleted from an erasable chart (after, he was told, she received winnings from an earlier football pool.)

   
   

8. More than one person informed Mr. Ogonowski that the free Super Bowl buffet at Manatee's had been a good one in past years. The plan was to add the scores of both teams playing in the Super Bowl, as soon as the game finished. If the total corresponded to a square with somebody's name(s) in it, the winner(s), so determined, were to receive all bets pooled.

   
   

9. On January 4, 1989, Mr. Ogonowski returned with a fellow beverage officer, Ron Sullivan. Announcing that they were beverage agents, they seized the cardboard chart and an envelope marked "Super Bowl Pool," despite Mr. Di Nofrio's efforts to prevent their access to the drawer containing the envelope. The envelope had $90.00 inside, although names filled 24 squares on the chart, found later behind a cash register.

10. On January 10, 1989, a handwritten note reached petitioner's Daytona Beach offices. Mailed after the search and seizure at Manatee's, the note reads:

    
    

    Joe

    Barbara ask me to send this buffet ticket to you.

    Don

    
    

    Petitioner's Exhibit No. 6. Enclosed was a business card ("good for 1 FREE drink") on which somebody had written by hand:

    
    

    SUN JAN 22ND 076

    SUPER BOWL BUFFET PARTY JOE OGONOWSKI

    
    

    Id. At hearing, Mr. Di Nofrio contended that Mr. Ogonowski's ten dollars had paid for a buffet ticket, and had nothing to do with any football pool.

    
    

11. Mr. Di Nofrio claimed that each square on the chart represented a buffet ticket. But this did not explain why some patrons had their names in six different squares, or why some squares contained two names. In any event, he testified that a person who paid $10.00 would be eligible, even without attending the buffet, to win one of two $50.00 cash prizes or a $25.00 bar tab in a drawing.

    
    

    Distilled Spirits

    
    

12. In searching Manatee's on January 4, 1989, the beverage officers found an array of Lady Velvet liqueurs, including Lady Velvet Apricot Brandy, Lady Velvet Apricot Schnapps, Lady Velvet Banana Schnapps, Lady Velvet Blackberry Brandy, Lady Velvet Coffee and Brandy, and Lady Velvet Dark Creme de Menthe. Di Nofrio told the officers that he had acquired these liqueurs, at Walgreen's, a retail store; and indicated that he kept them at the bar for resale.

    
    

13. Also present on the premises was an unopened bottle of McGuire's Cream Liqueur. Mr. Di Nofrio claimed this had been a present for a bar maid, but he was not sure which. Unlike the labels on the Lady Velvet products, which did not identify them as distilled spirits, the label on this bottle stated, "Made with 100% imported blended scotch whiskey."

    
    

14. Walgreen liquor stores are licensed as "vendors" but not as "distributors" of alcoholic beverages. The distributor who sells Lady Velvet liqueurs to Walgreen stores sells this brand to no other vendor. Although Lady Velvet liqueurs contain less alcohol by volume than certain non- distilled beverages legally sold under licenses like respondent's, these liqueurs are distilled or "spirituous" liquor.

    
    

    CONCLUSIONS OF LAW

    
    

15. Because respondent's Division of Alcoholic Beverages and Tobacco referred petitioner's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b), Florida Statutes (1989), the "division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989).

16. Section 561.29(1), Florida Statutes (1989), authorizes the Division of Alcoholic Beverages and Tobacco to revoke or suspend a beverage license upon a showing of

    
    

    [v)iolation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, . . . of any of the laws of this state or permitting another on the licensed

    premises to violate any of the laws of this state whether or not the licensee or his or its

    agents, officers, servants, or employees have been convicted in any criminal court . .

    
    

    Section 561.29(1)(a), Florida Statutes (1989). Here petitioner contends that respondent's employees and others on the licensed premises violated Section 849.09(1)(a), Florida Statutes (1989), which makes it unlawful for any person to "set up, promote, or conduct any lottery for money or for anything of value." Petitioner also contends that respondent has violated Section 849.01, Florida Statutes (1989), which provides:

    
    

    Whoever by himself, his servant, clerk or agent, or in any other manner has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling or in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever, whether heretofore prohibited or not, shall be guilty of a felony of the third degree

    . . .

    
    

    Petitioner alleges that respondent violated Section 562.02, Florida Statutes (1989), which forbids

    
    

    a licensee under the Beverage Law or his agent to have in his possession, or permit anyone else to have in his possession, at or in the place of business of such licensee, alcoholic beverages not authorized by law to be sold by such license.

    
    

    And that respondent ran afoul of Section 561.14(3), Florida Statutes (1989), which specifies that "purchases of alcoholic beverages by vendors from vendors shall be strictly limited to purchases between members of a pool buying group for which the initial purchase of the alcoholic beverages was ordered by a pool buying agent as a single transaction."

    
    

17. License revocation proceedings have been said to be "`penal' in nature." State ex rel. Vininq vs. Florida Real Estate Commission, 281 So.2d 487,

    491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987). See Addinqton vs. Texas, 441U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163

    (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966).

    
    

18. Petitioner argues that it need prove its case by a preponderance of the evidence only, contending that government has a lesser burden when it seeks to put a tavernkeeper out of business than when it seeks to revoke a professional or occupational license like those issued to barber shops or termite exterminating companies. But the cases do not support this view. See Anheuser- Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). Assuring suitable teachers for children is no less important than regulating liquor sales, yet teachers are immune from disciplinary action in the absence of a clear and convincing showing of appropriate grounds. Ferris vs. Turlington,

    510 So.2d 292 (Fla. 1987). Like other licensing agencies, petitioner has the burden to make a clear and convincing showing that a violation has occurred, as a predicate for disciplinary action against a licensee.

    
    

19. Petitioner has met its burden here. The evidence showed convincingly that respondent's agents, from its president down, were involved in a football pool or lottery on Manatee's premises. It was also clear that spirituous liquors acquired, not from a distributor, but from a vendor, independently of any pool buying agent, were for sale under the purported authority of respondent's 2 COP license.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner suspend respondent's license for thirty (30) days. DONE and ENTERED this 7th day of March, 1990, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1990.

APPENDIX

Petitioner's proposed findings of fact Nos. 1 through 9, 12 and 13 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed findings of fact Nos. 10 and 14, the witness so testified.

With respect to petitioner's proposed finding of fact NO. 11, only hearsay tended to prove her a winner.

Respondent's proposed findings of fact Nos. 1, 2, 3, 7, 8, 9 13 and 14 have been adopted, in substance, insofar as material.

With respect to respondent's proposed findings of fact Nos. 4, 5, 6, 10,

11 and 12, the evidence showed that the money was paid for chances in a football pool, rather than for buffet tickets.

Respondent's proposed findings of fact Nos. 15, 16, 18 and 20 have been rejected as unsupported by the weight of the evidence.

With respect to respondent's proposed findings of fact Nos. 17 and 19, only respondent's testimony would support these findings, and his testimony proved incredible in many other matters.

COPIES FURNISHED:

Leonard Ivey, Director Department of Business Regulation

725 South Bronough Street Tallahassee, FL 32399-1000

Joseph A. Sole, General Counsel Deparment of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000

Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000

John B. Fretwell, Esquire Department of Business Regulation

725 South Bronough Street Tallahassee, FL 32399-1007

Dondis Enterprises, Inc.

510 Cleo Lane Deltona, FL 32738

Lt. J. D. Powell, District Supervisor Division of Alcoholic Beverages and Tobacco

815 North Nova Road Daytona Beach, FL 32015

Docket for Case No: 89-001504

Orders for Case No: 89-001504