STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1308

)

JOSE JULIO ALVES, )

d/b/a ROYAL GARDEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on June 27, 1991, in Melbourne, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Robin L. Suarez

Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: George B. Turner

65 East Nasa Boulevard, Suite 106 Melbourne, Florida 32901

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violation alleged in the amended notice to show cause dated November 27, 1990, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on November 27, 1990, when the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Department), filed an amended notice to show cause against the Respondent, Jose Julio Alves. That amended notice alleged that Respondent had purchased alcoholic beverages, Vintage Port 1985, Borges Oporto, from an unlicensed vendor contrary to Section 561.14(3), Florida Statutes. On December 18, 1990, Respondent filed a request for hearing which disputed that the port had been purchased from an unlicensed vendor. Additionally, Respondent asserted that the wine had been legally imported and that all taxes had been paid on it. The case was forwarded to the Division of Administrative Hearings for formal proceedings on February 26, 1991.

At the hearing, the Department presented the testimony of Michael Fath, sergeant with the Division of Alcoholic Beverages and Tobacco and supervisor of the Brevard County office; Kenneth Rigsby, the beverage agent who investigated this case; and the Respondent. The Department's exhibits numbered 1 through 3 were admitted into evidence. The Department requested and official recognition has been taken of the following provisions: Sections 562.02, 561.14, and 561.01(9), Florida Statutes. The Respondent testified in his own behalf and offered the testimony of Lonnie Gilmore Peacock, chef at the Royal Garden restaurant.

A transcript of the proceedings has not been filed. After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

At the time of filing its proposed recommended order the Department filed a motion to amend the pleadings to conform to the evidence presented. More specifically, the Department sought to amend the amended notice to show cause to include the following additional charge:

2. On or about August 8, 1990, you Jose Julio Alves, your agent, servant, or employee to wit: Jose Julio Alves, did maintain on your licensed premises, wine not permitted to be

sold under your license number 15-01801, 2-COP, contrary to Section 562.02, Florida Statutes (1989).

The foregoing effort to amend the pleadings is merely a restatement of the existing charge against Respondent. That is, that he maintained on his licensed premises alcoholic beverages which had not been purchased from a licensed vendor. Had he obtained the wine from a licensed vendor, Respondent would have been permitted to have the beverages on the premises.

Consequently, the request to further amend the notice to show cause is hereby denied.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Respondent, Jose Julio Alves, owns or holds an alcoholic beverage license for a business known as Royal Garden which is a restaurant located at 1257 U.S. 1 South, Rockledge, Florida 32955. The license for the premises, #15-01801 2-COP, was obtained in 1989.

   
   

2. Respondent is originally from Portugal, but he has resided in Brevard County for several years. Respondent speaks and understands English and has successfully handled the business operation of the Royal Garden since 1989.

   
   

3. In April of 1989, Respondent executed a form entitled "APPLICATION FOR AND CERTIFICATION OF A PERMIT TO IMPORT ALCOHOLIC BEVERAGES INTO FLORIDA". That form represented that the alcoholic beverages to be imported had been legally purchased outside the

   U.S.A. by Respondent personally, and that the shipment to his Florida residence was for his personal consumption. Along with that application Respondent submitted the appropriate excise tax amount to cover 24 cases of red port wine. The subject wine bore the name "Vintage Port" 1985. Accordingly, pursuant to Section

   561.11 and 562.15, Florida Statutes, together with Rule 7A-2.10, Florida Administrative Code, the Department granted Respondent permission to bring the beverages into the State of Florida and acknowledged that the excise taxes on the beverages had been paid.

   
   

4. On or about August 8, 1990, Agent Rigsby conducted an inspection of the Royal Garden restaurant and was accompanied by the Respondent. During that inspection, Agent Rigsby found and seized 11 bottles of Vintage Port 1985 wine which were located within the restaurant's walk-in cooler. Additionally, Agent Rigsby seized two empty bottles bearing the same labels from a shelf outside the restaurant's office. Since the bottles did not

   bear indications that taxes had been paid, the Department charged Respondent with having possession of alcoholic beverages for which the taxes had not been paid and for purchasing same from an unlicensed vendor.

   
   

5. According to Respondent, all taxes due and payable on the wine described in paragraphs 3 and 4 had been properly paid at the time of its importation into Florida.

   
   

6. Respondent acknowledged that the wine was not purchased from a licensed vendor since he admitted that the port seized on the Royal Garden premises was from the cases he had imported for personal consumption. Why and how the wine made its way from Respondent's residence to Respondent's restaurant is less than clear. According to Respondent, the wine was stored in the restaurant's walk-in cooler and was only used for cooking or as a complimentary drink to friends or special customers. Respondent maintains that the wine was never sold to customers.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   
   

8. Section 561.14(3), Florida Statutes, provides, in pertinent part:

   
   

   Vendors licensed to sell alcoholic beverages at retail only. No vendor shall purchase or acquire in any manner for the purpose of resale any alcoholic beverages from any person not licensed as a vendor, manufacturer, bottler, or distributor under the Beverage Law. 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. No vendor shall be a member of more than one cooperative or pool buying group at any time. No vendor shall import, or engage in the importation of, any alcoholic beverages from places beyond the limits of the state.

9. Section 561.01(9), Florida Statutes, defines "sale" and "sell" as follows:

   
   

   "Sale" and "sell" mean any transfer of an alcoholic beverage for a consideration, any gift of an alcoholic beverage in connection with, or as a part of, a transfer of property other than an alcoholic beverage for a consideration, or the serving of an alcoholic beverage by a club licensed under the Beverage Law.

   
   

10. In this case the Department has established by clear and convincing evidence, and the Respondent has admitted, that he gave alcoholic beverages (more specifically the Vintage Port 1985) to his friends and special customers on the licensed premises. Moreover, the Department has shown that such beverages were not obtained from a licensed vendor but were imported by the Respondent allegedly for his personal consumption. The subject wine, however, was not consumed by Respondent personally at his residence. To the contrary, the Department has shown that the Respondent violated Section 561.14, Florida Statutes, since he acquired the alcoholic beverages for one purpose but used it incidental to his restaurant operation. Under the license law, the gift of an alcoholic beverage in connection with the restaurant operation and sale of food is impermissible.

Obviously, such "gifts" are to encourage the goodwill of the restaurant patron. Were the beverage laws so easily circumvented, one might readily expect to see "complimentary" wines at unlicensed establishments. In this case the licensed establishment served alcoholic beverages which had not been purchased for resale. Respondent did not obtain the Vintage Port 1985 from a licensed vendor; consequently, it should not have been on the licensed premises.

RECOMMENDATION

Based on the foregoing, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order finding the Respondent guilty of violating Section 561.14(3), Florida Statutes, and imposing an administrative fine in the amount of $500.00, in accordance with Section 561.29(3), Florida Statutes.

RECOMMENDED this 29th day of July, 1991, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1991.

COPIES FURNISHED:

Robin L. Suarez

Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

George B. Turner

65 E. Nasa Boulevard, Suite 106 Melbourne, Florida 32901

Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Donald Conn General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

APPENDIX

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraphs 1 and 2 are accepted.

2. Paragraph 3 is rejected as irrelevant.

3. Paragraphs 4 and 5 are accepted.

4. Paragraph 6 is rejected as hearsay or irrelevant.

5. Paragraph 7 is rejected as hearsay or irrelevant.

6. Paragraph 8 is accepted.

7. With the deletion of the word "luxury" paragraph 9 is accepted.

8. Paragraphs 10 and 11 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. With regard to paragraph 1 it is accepted that Agent Rigsby conducted an investigation of the Royal Garden in August, 1990. Otherwise, the paragraph is rejected as irrelevant.

2. Paragraph 2 is rejected as irrelevant.

3. Paragraphs 3 through 5 are accepted.

4. Paragraph 6 is rejected as contrary to the Respondent's admissions. The Respondent admitted he gave the wine to his special customers/friends as a complimentary drink and that such gifts sometimes occurred incidental to their meals at the restaurant.

5. Paragraph 7 is rejected as hearsay, argument, or irrelevant.

6. Paragraph 8 is rejected as irrelevant.

7. Paragraphs 9 and 10 are rejected as irrelevant.

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: 91-001308

Orders for Case No: 91-001308