STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3774

) AJITKUMAR L. NAIK, d/b/a/ CIRCLE ) A FOOD MART, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Melbourne, Florida on October 8 and December 2, 1992, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Miguel Oxamendi, Esquire

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

For the Respondent: William R. Clifton, Esquire

1273 S. Florida Avenue Rockledge, Florida 32955

STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Respondent's 2APS alcoholic beverage license No. 15-02229, should be disciplined because of the matters set out in the Notice to Show Cause issued by the Department on November 13, 1991.

PRELIMINARY MATTERS

By Notice to Show Cause dated November 13, 1992, the Department indicated its intendtion to disciplined the Respondent's alcoholic beverage license because had had b een charged with intent to commit sexual battery and false imprisonment in October, 1991. On November 27, 1991, the Respondent submitted a request for hearing, and by letter dated June 23, 1992, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. By Notice of Hearing dated July 29, 1992, entered after the parties' responses to the Initial Orders issued herein, Hearing Officer Joyous D. Parrish set the

matter for hearing in Melbourne on October 9, 1992, at which time the hearing was convened by the undersigned to whom the file had been transferred in the interim.

At the initial hearing, Petitioner presented the testimony of Michael J. Fath, sub-office supervisor of the Department's Rockledge office; Bonita Sue Adkins, alleged victim of Respondent's misconduct; and Carl D. Hollenbeck, a criminal investigator with the Rockledge Police Department. Respondent testified in his own behalf and presented the testimony of Keith Taylor, a security officer and acquaintance of Ms. Adkins.

At the close of the Respondent's case, counsel for Petitioner requested a continuance to develop rebuttal testimony from Ms. Adkins and others either through deposition or at a subsequent hearing. Petitioner was given 15 days to determine if depositions would be submitted or additional hearing would be required, and thereafter, counsel requested additional hearing time. By Order dated November 25, 1992, the undersigned set the matter for further hearing at which Petitioner presented additional testimony by Ms. Adkins, the testimony of Ginger M. Austin, formerly a friend of Ms. Adkins, and that of Wayne A. Dotson, Jr., Ms. Adkins' living partner.

At the close of this session, Counsel for Respondent requested time to present additional testimony on the issue of Ms. Adkins' credibility. The parties were granted until December 16, 1992 to take and submit the depositions of the proffered witnesses. No further hearing was scheduled. The depositions mentioned by Respondent's counsel were not submitted.

No transcript was provided. Counsel for the Department submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Respondent, Ajitkumar L. Naik, operated the Circle A Food Mart in Rockledge, Florida under a 2APS Cigarette permit No. 15-02229. The Department of Business Regulation, through its Division of Alcoholic Beverages and Tobacco, was the state agency responsible for issuing such permits and regulating the conduct of tobacco sales under them.

   
   

2. Bonita Sue Adkins, born on October 23, 1973, was, at the time of the alleged offenses, a student at Rockledge High School. She had known the Respondent for about 2 years and patronized his store frequently. On those occasions she spoke with him as a friend about her life in general and he was very nice. She trusted him.

   
   

3. Sometime prior to October 24, 1991, however, she claims, the nature of his approach began to change. He began to get more personal with her, suggesting she satisfy herself sexually. When she would speak with him about her relationship with her boyfriend, or when her stomach hurt as a result of her menstrual period, he would allegedly tell her how he could make her feel better sexually and would, periodically, talk with her about having sex with him even though she claims she never led him on or gave him any reason to believe she was interested in him that way. Ms. Adkins describes herself as an open and demonstrative individual and admits to having hugged Respondent once or twice but never to having kissed him.

4. On October 9, 1991, as a result of a dispute with her boyfriend during the school day, Ms. Adkins was upset and felt the need to talk with someone. She left school before it was over, something she did often, and went to Respondent's store where she told him of her problems and asked him for a cigarette even though she knew she was too young to legally possess them. She claims she had gotten them from him in the past after she told him she was over

   18 without showing him the identification he had asked for. Respondent denies this, however. On this particular day, Ms. Adkins claims, Respondent again said he could satisfy her sexually, purportedly indicating he would "eat her" and "make her come." She states he told her that if she would just be with him for sex for a couple of hours alone, he'd give her anything in the store she wanted. On all these occasions, when Respondent would speak to her with sexual innuendo, she did nothing about it, accepting it as "guy" talk. Only when he touched her did she get upset.

   
   

5. On this occasion, Ms. Adkins states, she was wearing stretch jeans and a loose top over an undergarment and panties. Customers came in and out of the store while they were talking, and Respondent remained behind the counter with her on the outside. When the store emptied, however, Respondent allegedly told her to get the drink she had asked for and as she was facing the fountain, she claims, he came behind her and put his hand up under her shirt. She told him to stop and tried to get away. He was holding her tightly, however, she claims, and touched her breast under the undergarment for several minutes while she resisted and tried to get away.

   
   

6. According to Ms. Adkins, Respondent finally let go of her breast and tried to put his hand down the front of her pants, but could not get far enough down to touch her genitalia. All during this time, she claims, she was trying to get him to stop and to let her go. She thought he was trying to have sex with her which she did not want. During the several minutes of struggle, during which he supposedly tried to kiss her and she consistently resisted his advances and asked him to let her go, she did not scream or call out because she felt there was no one there to hear her to help her. She does not know who was or might have been in the area, however.

   
   

7. Ms. Adkins ultimately got away from the Respondent and, leaving the store, took a taxi which he had called for her to her home. Not only did Respondent call the cab, for which Ms. Adkins waited, but he also gave her the money to pay for it and a pack of cigarettes. This is patently unbelievable. It stretches credulity to expect anyone to believe that after being assaulted sexually, Ms. Adkins would wait around her attacker's store for a cab he allegedly called for her.

   
   

8. Respondent purportedly told Ms. Adkins to say nothing about what happened between them to anyone. She did not report the matter to anyone including her parents or the police until 2 or 3 days later because, she claims, she did not know what to do. She claims she felt Respondent had violated her trust and she was afraid to tell her parents. Her best friend's mother worked for the police department but she didn't tell her, either. It was only when her boyfriend, Mr. Dotson, to whom she told the story several days later, told her to tell her mother about it did she make her complaint.

   
   

9. Ms. Adkins' reputation for truth and veracity in the community is not good. She was arrested for burglary when she was 16 years old and for several other minor offenses which were not prosecuted.

10. On October 15, 1991, Officer Hollenbeck was advised by his dispatcher, the mother of Ms. Adkins' close girlfriend, that Ms. Adkins had told her she had been assaulted. That same day he contacted Ms. Adkins' mother to ask if they wanted to file a complaint. The following day, Ms. Adkins and her mother came to Hollenbeck's office where Ms. Adkins made a statement accusing Respondent of assault. Several days later, on October 21, 1991, Officer Hollenbeck contacted Respondent and asked him to come to the police station where he told Respondent of the allegations Ms. Adkins had made against him. In a sworn statement made at the time, Respondent admitted Ms. Adkins had come to his store on the day alleged and that they had talked, but he unequivocally denied any assault.

    
    

11. Respondent indicated to Officer Hollenbeck he had had trouble in the past with Mr. Dotson and his mother who spread untrue rumors that he had sold beer and cigarettes to minors. He indicated that when Ms. Adkins was in his store, two other patrons were there. When Hollenbeck checked this with those patrons, both recalled having been there and one recalled seeing a blonde female. Neither saw anything unusual going on. When Hollenbeck asked to see the tape from the security camera in the store, Respondent indicated it had automatically been erased and used over a relatively short time after real time. The system is a continuous reel type on which, if not preserved for a specific item, the tape is used over and over.

    
    

12. Respondent admits Ms. Adkins came into his store on the day in question complaining of a stomach ache and seeking a free soft drink to which he agreed. At that time, other patrons and the beer distributor were there and she remained until all had left. When he asked her what was wrong, she stated she had had a fight with her boyfriend, had left school early, and needed to "chill out" until she could go home. At the time, Respondent was waiting for his wife to bring him his lunch and go pick up their daughter at school. Respondent and Ms. Adkins talked, but he denies she gave him any details regarding her fight with her boyfriend. He claims he told her to talk with her friend, Ginger, about that.

    
    

13. Respondent also denied giving Ms. Adkins either money or cigarettes, and he specifically denies any sexually oriented conversations with her nor did he proposition her sexually. He admits he might have called her "pretty girl" as a part of the friendly approach he takes with all his customers. When she came into his store that day it was near the lunch hour and this is a busy time for him.

    
    

14. According to Mr. Naik, Ms. Adkins is a liar and an individual who will make any untrue allegation about people to get even with them if she believes they have offended her. He believes she has made these instant allegations about him because he refused to sell her boyfriend, Mr. Dotson, cigarettes. She threatened to report him to the police for possession of marijuana, an allegation he claims to be untrue.

    
    

15. Mr. Dotson, age 17 at the time of the hearing, currently lives with Ms. Adkins but denies having any serious relationship with her now. He was told by Mr. Taylor, who testified to Ms. Adkins bad character for the Respondent, that Ms. Adkins was not well liked by her peers, but he had not found this to be true. He also denies ever having told Mr. Taylor that Ms. Adkins was a liar or had a bad reputation for truth and veracity. He claims he has purchased cigarettes in Respondent's store in the past but never from Respondent personally. This is consistent with Respondent's denials. Taken together, from the testimony of Ms. Adkins and Mr. Dotson, and observation of their demeanor

    while on the stand, it is hard to credit either with much believability and the testimony of neither is particularly credible.

    
    

16. Ginger Austin, formerly Ms. Adkins' best girlfriend, has patronized Respondent's store frequently for about a year. At first, she claims, he was polite and courteous to the girls, but with time, he began to speak suggestively toward Ms. Adkins. She relates that on one occasion he suggested to Ms. Adkins that she get rid of her boyfriend and get a real man, and she also recalls having heard him tell Adkins that if she would "screw" him she could have anything in the store. However, neither young woman reacted to these comments and both continued to patronize the store even after the alleged assault. She claims this was because there were no other stores around, but the evidence clearly shows there were other stores in the area, though not on the direct route between school and home as was Respondent's store. Nonetheless, neither seemed to consider Respondent a threat or to take him seriously.

    
    

17. Ms. Austin claims she is no longer friends with Ms. Adkins and has not discussed her testimony with her. She also denies having discussed Adkins' reputation with Taylor. Here, as with Adkins and Dotson, the witness' testimony is not persuasive.

    
    

18. Respondent pleaded guilty to a lesser misdemeanor offense than that originally charged, the exact nature of which was not disclosed, even though he continued to protest his innocence because he is an alien. Had he been convicted of the original felony charge, he claims, even though he did not commit it, he would have had to leave the country That was the sole reason for his plea, he asserts. This is not unreasonable.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

20. The Department seeks to discipline the Respondent's permit on the basis that, it alleges, on October 24, 1991, he both committed an aggravated assault on Ms. Adkins with an intent to commit sexual battery and falsely imprisoned her, both in violation of Section 561.29, Florida Statutes. This provision authorizes the Department to discipline a beverage license upon a showing that the licensee violated any laws of the state, and if established, either offense of October 24, 1991, would be a violation of a criminal statute of this state.

    
    

21. To succeed in its disciplinary action, the Department must establish, by clear and convincing evidence, that the Respondent committed the offenses alleged. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Careful evaluation of the evidence presented at this hearing shows this has not been done.

    
    

22. There is no doubt that Respondent knew Ms. Adkins from her frequent visits to his store and that he knew Mr. Dotson and Ms. Austin as well. All three young people ran in the same crowd, it appears. It is also clear that Mr. Naik was less than circumspect in his conversations with Ms. Adkins and used such appellations as "pretty girl" toward her. Though this is less than prudent, especially considering the nature of the individuals to whom the comments were made, it does not fall within the bounds of misconduct.

23. There is also no doubt that Mr. Naik pleaded guilty to a lesser offense, a misdemeanor, as a result of this arrest which arose out of Ms. Adkins' less than fresh complaint. However, his explanation of his reason for pleading guilty, which has no relationship to the issues in this case, is credible. To stand trial, as a foreigner, in a matter such as alleged by Ms. Adkins, before a jury as would likely be impaneled in that case in Brevard County, was a risk he could not afford to assume, especially since his ability to remain in this country was at stake. Therefore, his plea of guilty to the misdemeanor is not probative of his guilt of the matters alleged in the Notice to Show Cause filed in this case.

    
    

24. Mr. Naik has denied the allegations of misconduct by Ms. Adkins. It would be helpful if the security tape were available to show what actually happened at the time in question, but it is not. It's absence cannot be considered as indicative of any misconduct on Respondent's part. Therefore, in light of Respondent's unequivocal denial of the allegations made against him by Ms. Adkins, and in the absence of any evidence of note tending to indicate any lack of probity on his part, the ultimate question relates to the credibility of the complainant, Ms. Adkins. In that regard there is substantial evidence regarding her credibility as a witness.

    
    

25. She has been arrested several times for criminal violations though it is admitted at least one of those arrests was not practically justified. She has a history of disregard for authority as evidenced by her repeated skipping school and her willingness to solicit tobacco products from Respondent when she knew it was unlawful for him to provide them. She did not report the alleged attack to anyone, including her parents, for some time thereafter even though her then best friend's mother was the dispatcher for the police department. Finally, the testimony of Mr. Taylor regarding her reputation for truth and veracity in the community certainly raises a serious question as to her credibility, even if the evidence is not clear on either side of the balance.

    
    

26. Petitioner attempts to bolster the testimony of Ms. Adkins through that of Ms. Austin who, while not present at the time in question, claims to have heard suggestive remarks made by the Respondent. It has already been found that the testimony of Ms. Adkins, Ms. Austin and Mr. Dodson is not worthy of belief, and this says nothing for that of Mr. Taylor. The issue, however, is whether the Petitioner's evidence of the Respondent's guilt is clear and convincing and there is no question that it is not.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

Recommended that the Notice to Show Cause issued by the Department in this case alleging misconduct by the Respondent regarding Ms. Adkins on or about October 24, 1991, be dismissed.

RECOMMENDED this 8th day of January, 1993, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 8th day of January, 1993.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3774

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. & 2. Accepted and incorporated herein.

1. Rejected as not based on credible evidence.

2. Testimony is accurate but not believed.

3. First three sentences accepted. Balance rejected as not based on credible evidence.

4. - 8. Rejected as not based on credible evidence.

9. - 11. Rejected as not based on credible evidence.

1. Not a Findings of Fact but a comment on the evidence.

2. Rejected as not based on credible evidence.

3. Accepted as to her actions but not as proof of Respondent's misconduct.

4. Accepted.

5. Not a Finding of Fact but a comment on the evidence.

6. Not an appropriate Finding of Fact relating to the evidence.

FOR THE RESPONDENT: NONE SUBMITTED.

COPIES FURNISHED:

Miguel Oxamendi, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

William R. Clifton, Esquire 1273 South Florida Avenue Rockledge, Florida 32955

Janet B. Ferris Secretary

Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

Donald D. Conn General Counsel

Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

Richard W. Scully Director

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1000

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 92-003774

Orders for Case No: 92-003774