STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6016

)

ELIAS ZARATE-RIZO, d/b/a )

JALISCO'S CORNER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Bunnell, Florida, before the Division of Administrative Hearings, by its duly designated hearing officer, David M. Maloney, on April 20, 1994.

APPEARANCES

For Petitioner: Miguel Oxamendi, Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Elias Zarate-Rizo, Pro Se

Respondent did not appear at the hearing.

PRELIMINARY STATEMENT

By letter dated October 19, 1993, the Department transmitted this case to the Division of Administrative Hearings requesting assignment of a hearing officer to conduct a formal hearing under Section 120.57, Florida Statutes.

Enclosed with the letter was a Notice to Show Cause issued to respondent on August 18, 1993, and the respondent's request for a hearing dated September 9, 1993.

The Notice to Show Cause charges respondent with violating provisions of the law governing alcoholic beverages generally, Chapters 561 and 562, Florida Statutes, in two counts: 1. violating a Crescent City Ordinance governing hours of sale, service or consumption of alcoholic beverages, contrary to Section 561.29, Florida Statutes; and, 2. failing to admit a Crescent City police officer, thereby preventing him from executing the power vested in him by law, contrary to Section 562.41(3), Florida Statues.

Petitioner's motions to amend the Notice to Show Cause to cite Section 562.41(4), Florida Statutes in the second count, and to list respondent's address as 103-105 North Summit Street, Crescent City, Putnam County, Florida, were granted at hearing. Petitioner then presented the testimony of two witnesses: Lt. Don O'Steen of the Division and Lt. Mark I. McIntyre of the Crescent City Police Department. The petitioner was granted leave to offer into evidence two late-filed exhibits provided they were filed simultaneously or before the filing of a proposed recommended order. The exhibits, a copy of the Division's penalty guidelines and a copy of Crescent City Ordinance 12-30, were accepted into evidence.

Respondent, being absent, did not present any evidence. Petitioner's Proposed Recommended Order was served on May 2, 1994. Rulings on proposed findings of fact are contained in the appendix to this order. Respondent did not submit any post- hearing filing.

FINDINGS OF FACT

1. Respondent Elias Zarate-Rizo has held license no. 64- 000448, a series 2-COP license issued by the Division of Alcoholic Beverages and Tobacco in the Department of Business and Professional Regulation, continuously since April 27, 1993. At all times relevant to this proceeding, respondent has been the holder of the license.

   
   

2. The licensed premises is located at 103-105 North Summit Street, Crescent City, Putnam County, Florida. Divided primarily into a restaurant and a pool hall, the business is known as Jalisco's Corner.

   
   

3. Lieutenant Mark I. McIntyre is second-in-command under the Chief of Police for the Crescent City Police Department and has been the police department's patrol supervisor since 1989. While on patrol during the early morning hours of July 16, 1993, Lieutenant McIntyre noticed lights on in Jalisco's Corner. He parked his car at approximately 2:30 a.m. to observe the licensed premises because under a local ordinance it is not permitted to serve alcoholic beverages or even to be open for business after 2 o'clock in the morning.

   
   

4. From 50 feet away, through a large plate glass window providing an unobstructed view of the well-lighted pool hall, the lieutenant counted 14 people present, some of whom appeared to be drinking: respondent, Juan Franco, known to him to be an employee of Jalisco's Corner, and 12 customers. Respondent was leaning up against the bar drinking a Miller Lite beer.

   
   

5. The beer on the premises is stored in ice coolers in the restaurant. Lt. McIntyre saw Franco walk from the pool hall into the restaurant and return shortly with a tray of what appeared to be six beer bottles. Franco placed the tray down and opened the bottles.

   
   

6. Lt. McIntyre exited the patrol car and moved to the double doors of the pool hall only to find them chain-locked. Through the plate glass window, the officer motioned to respondent, who, with the Miller Lite in hand, admitted him onto the premises.

7. Informed that he was serving alcoholic beverages after hours, Zarate- Rizo answered that Juan Franco did not work for him, therefore, he bore no responsibility for Franco's actions. When confronted with the officer's knowledge that Franco was, indeed, an employee, as evidenced by the order pad sticking from his back pocket, respondent admitted serving alcoholic beverages after hours, expressed regret and said it would never happen again.

   
   

8. Lieutenant McIntyre proceeded to close down Jalisco's Corner for the evening. In the process of doing so, he came into firsthand contact with the six bottles he had seen Franco serving. They were still cold to the touch, foaming, and in the officer's opinion, were beer.

   
   

9. Twelve days later, July 28, 1993, Lieutenant McIntyre, on patrol again, was driving by Jalisco's Corner at 2:11 a.m. As he approached he saw a red Ford pickup truck backing out of the parking lot. An Hispanic-looking male, later identified as Felix Carbajal, was pointing a handgun at the truck and making motions as if he were firing the gun. Respondent, together with his wife and baby, were in the parking lot. The officer advised dispatch of the situation and that he would attempt to intervene.

   
   

10. With his own gun drawn, Lieutenant McIntyre approached Carbajal and ordered him to drop the weapon. Carbajal did not comply. He continued to point his firearm at the truck and its driver. Again, Lieutenant McIntyre ordered Carbajal to drop the gun. By now, a crowd had gathered. Carbajal turned, faced Lieutenant McIntyre, and pointed the gun at him. Staring down the barrel of the gun, the lieutenant clearly recognized it as an automatic or semiautomatic weapon of approximately 9 mm calibre with an extended magazine clip.

    
    

11. Despite any impulse to protect himself, Lieutenant McIntyre rejected the idea of shooting Carbajal for fear of injuring children in the crowd. He continued to address Carbajal until Carbajal placed the gun on the ground. As he gave further instruction to Carbajal, a child ran from the crowd, picked up the gun and ran into Jalisco's Corner.

    
    

12. Throughout the confrontation with Carbajal, respondent was in the parking lot with his wife and another child. Shortly after the first child ran into the restaurant with the gun used by Carbajal, respondent, with several others, followed the child into the restaurant, closed the door and locked it.

    
    

13. Backup officers arrived. As Lieutenant McIntyre placed Carbajal under arrest, Officer West attempted entrance into Jalisco's Corner through a back door. The back door was also locked. Watching the door, Officer West saw a person stepped out. When Officer West made his presence known, the person reentered and re-locked the door.

    
    

14. More backup officers arrived. Telephone calls were placed by the officers into the restaurant for the purpose of getting the occupants out and gaining admission of law enforcement personnel. Each time a phone call was made, Lieutenant McIntyre observed respondent through the plate glass window answering the phone. The officers told respondent he and the others should come out with hands up. Neither respondent nor the others did so, nor did respondent allow the officers entry.

    
    

15. By now, seven law enforcement vehicles were present outside the licensed premises. The Chief of Police, SWAT team members, and deputy sheriffs all had responded. Of the seven vehicles, at least five had their blue lights flashing.

16. A half-dozen or so phone calls were attempted. Respondent was informed that if the occupants of Jalisco's Corner did not come out the SWAT team was coming in. But, the officers wanted to avoid a forced entry because of the presence of children, at least the baby and the child who had seized the firearm. After 20 to 30 minutes of negotiation and with the SWAT team prepared to enter, the occupants emerged from the building.

    
    

17. As a Spanish-speaking officer questioned respondent, the child who had taken the weapon was questioned, too. They did not reveal the whereabouts of the weapon. Search dogs were brought in to the building but the firearm taken by the child into the licensed premises was never found by the authorities.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. Section 561.29(1), Florida Statutes, reads, in pertinent part:

    
    

    1. 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:

       1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages . . .

          
          

          Florida Statutes (1993). Emphasis added.

          
          

20. Section 1 of Crescent City Ordinance 12-30 (Enacted as Ordinance No. 9004 and published as 12-30) reads:

    
    

    No establishment dealing in alcoholic beverages, its owner(s), operator(s), manager(s), agent(s), employee(s) or contractor(s) shall sell or permit to be consumed, be open for business, or permit any person (except on-duty employees of the establishment) to enter or remain within said establishment dealing in alcoholic beverages between the hour of 2:00 o'clock a.m. of each Sunday and the hour of 7:00 o'clock on the following Monday; and between the hours of 2:00 o'clock a.m. and 7:00 o'clock a.m.

    Monday through Saturday in each week.

21. Section 562.47, Florida Statutes, reads in part:

    
    

    1. Proof that the beverage in question was contained in a container labeled as "beer," "ale," "malt liquor," "malt beverage," "wine," or "distilled spirits" or with other similar name; and which bears the manufacturer's insignia, name, or trademark is prima facie evidence that such beverage is an alcoholic beverage as defined in s. 561.01.

    2. Any person or persons who by experience in the past in the handling or use of intoxicating liquors, or who by taste, smell, or the drinking of such liquors has knowledge as to the intoxicating nature thereof, may testify as to his opinion whether such beverage or liquor is or is not intoxicating, and a verdict based upon such testimony shall be valid.

       
       

       Florida Statutes (1993).

       
       

22. Lt. McIntyre witnessed the Respondent's employee, Juan Franco, serve beer to persons after the hour of 2:00 o'clock a.m. on the morning of July 16, 1993. Lt. McIntyre had sufficient knowledge and experience to judge from a distance that the employee was serving beer after hours. Lt. McIntyre also confirmed that the bottles served were alcoholic beverages by inspecting the still-cold and foaming bottles of beer. The Respondent also admitted that the after hours serving had occurred, although he denied that he was aware of the illegality.

    
    

23. Section 562.41(4), Florida Statutes, reads:

    
    

    1. Any person who shall forcibly obstruct or hinder the director, any division employee, any sheriff, any deputy sheriff, or any police officer in the execution of any power or authority vested in him by law, or who shall forcibly rescue or cause to be rescued any property if the same shall have been seized by such officer, or shall attempt or endeavor to do so, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

       
       

       Florida Statutes (1993).

       
       

24. Section 562.41(5), further adds:

    
    

    1. Licensees, by the acceptance of their license, agree that their places of business shall always be subject to be inspected and searched without search warrants by the authorized employees of the division and also by sheriffs, deputy sheriffs, and police

    officers during business hours or at any other time such premises are occupied by the licensee or other persons.

    
    

    Florida Statutes (1993).

    
    

25. Clear and convincing evidence was presented that Crescent City Police Officer Lt. McIntyre was hindered by the Respondent in the execution of his legal duty. By refusing entry into the licensed premises to Lt. McIntyre and other Crescent City police officers, Respondent aided in the obstruction of a criminal investigation. The Respondent was present throughout the confrontation outside the restaurant between Lt. McIntyre and Carbajal and witnessed the child pick up a firearm and enter the premises. After following the child into the premises, Respondent also knew the door had been closed and locked.

    Respondent's failure to respond to the police requests to exit the premises further contributed to the construction of Lt. McIntyre's investigation. It is not an unreasonable inference that Respondent's actions were intended to hinder the law enforcement officers by denying them access to the firearm.

    
    

26. Section 562.14, Florida Statutes, renders a violation of hours of sale restrictions a second degree misdemeanor. Rule 61A-2.022, Florida Administrative Code, contains the Division's penalty guidelines. The penalty guideline for a misdemeanor not specifically listed in the rule is a $250.00 civil penalty. The guidelines do not contain a specific penalty for violations of hours of sale restrictions. The penalty guideline for violations of Section 562.41(4), Florida Statutes, is a civil penalty and a 30 day license suspension.

    
    

27. Petitioner presented clear and convincing proof that the Respondent, Elias Zarate-Rizo, violated the laws of this state by serving alcoholic beverages after hours under a Crescent City ordinance and by preventing a law enforcement officer from executing the power and authority vested in him by law.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered ordering Respondent to pay a civil penalty in the amount of $1,250.00, ($250.00 for the hours of sale violation and $1000.00 for violation of Section 562.41(4)), and that alcoholic beverage license No., 64-00448, series 2-COP, be suspended for a period of time of 30 days.

DONE and ORDERED this 2nd day of June, 1994, in Tallahassee, Leon County, Florida.

DAVID M. MALONEY

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 2nd day of June, 1994.

APPENDIX

Petitioner's findings of fact Nos. 1-16 have been adopted, in substance, insofar as material.

Respondent submitted no proposed findings of fact.

COPIES FURNISHED:

Miguel Oxamendi

Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

John J. Harris Acting Director DABT

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Elias Zarate-Rizo Pro Se

105 North Summit Street Crescent City, Florida 32112

Jack McRay

Acting General Counsel Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 93-006016

Orders for Case No: 93-006016