STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1011

) DW/BABALOOS, INC., d/b/a ) AFTER MIDNIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Ft. Myers, Florida, on September 5, 1996.

APPEARANCES

For Petitioner: Miguel Oxamendi, Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of selling alcoholic beverages not permitted by Respondent's license.

PRELIMINARY STATEMENT

By Administrative Action dated December 26, 1995, Petitioner alleged that Respondent, from October 24 through December 18, 1995, sold alcoholic beverages not permitted by its license.

By Request for Hearing filed January 23, 1996, Respondent requested a hearing.

At the hearing, Petitioner called two witnesses and offered into evidence no exhibits. The parties did not order a transcript.

FINDINGS OF FACT

1. Respondent holds license number 46-02076, series 14-BC. This license authorizes Respondent to operate as a bottle club, under Sections 561.01(15) and 561.14(6). Respondent's licensed premises is located at 8595 College Parkway, Number B12, Ft. Myers.

   
   

2. On October 29, 1996, at about 2:00 am, two of Petitioner's agents entered the licensed premises after paying a $2 cover charge. Neither agent had any alcoholic beverages in his possession. However, two of Respondent's employees assured them that they did not need to bring alcoholic beverages. One of these employees was the manager and the other was the barmaid. One agent ordered a Budweiser beer (Bud) and a shot of Jim Beam whiskey. The other agent ordered a Bud. The first agent later ordered another Jim Beam, but was told they were out of Jim Beam. The agent then ordered an Early Times whiskey.

   
   

3. Respondent's barmaid took these orders and filled them with stock kept apart from other patrons. This person collected $3 for each of the drinks.

   
   

4. On November 3, 1995, at about 2:00 am, the same agents returned to the licensed premises, again without any alcoholic beverages in their possession. They entered the premises after paying a $2 cover charge.

   
   

5. Again, the agents placed orders with the barmaid employed by Respondent to work behind the bar. In response to a question from one of the agents as to what kinds of beers they had for sale, the barmaid recited several brand names. Each agent ordered an Ice House beer and paid $3.

   
   

6. One of the agents next ordered an Early Times whiskey. The other agent ordered a Jim Beam whiskey. The barmaid informed the agent ordering the Jim Beam that they did not have any and suggested three other brands of whiskey. The agent ordered the Canadian Club. The employee served the drinks to each agent, who paid $3 for each drink.

   
   

7. On November 9, 1995, at 3:15 am, the agents returned to the licensed premises. They paid a $1 cover charge and entered the premises without an alcoholic beverage in their possession.

   
   

8. One agent ordered an Ice House beer and the other ordered a Jack Daniels. The barmaid was not there, but the employee who had formerly served as the manager worked as a bartender during this visit. The bartender served the agent an Ice House beer, for which he paid $3. The bartender told the other agent that they did not have any Jack Daniels, so the agent ordered a Canadian Club whiskey. The employee served the agent a drink of Canadian Club, for which he paid $3.

   
   

9. Each of the above-described drinks ordered and consumed by the agents and served by the two employees of Respondent were alcoholic beverages.

   
   

10. During the six hours that the agents were in the licensed premises, they saw only two persons enter the premises with an alcoholic beverage, but saw many patrons served with alcoholic beverages.

    
    

11. The license fee for a bottle club is $500. The license fee for an alcoholic beverage license is $1820.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

13. Section 561.01(15) defines a "bottle club" as a commercial establishment where patrons

    
    

    consume alcoholic beverages which are brought onto the premises and not sold or supplied to the patrons by the establishment, whether the patrons bring in and maintain custody of their own alcoholic beverages or surrender custody to the establishment for dispensing on the premises . . ..

    
    

14. Respondent's license does not permit it to sell alcoholic beverages. Section 562.12(1) prohibits the sale of alcoholic beverages without a license or outside the scope of a license.

    
    

15. Section 561.29(1)(a) authorizes the Division to revoke or suspend a license for a violation by the licensee or its agents or employees, "on the licensed premises . . ., of any of the laws of this state . . . in regard to the hours of sale, service, or consumption of alcoholic beverages "

    
    

16. Rule 61A-2.022(11), Florida Administrative Code, provides that the recommended penalty guideline for a violation of Section 562.12 is a civil penalty of the greater of $500 or the amount equal to the correct license fee. Respondent paid $500 for its bottle-club license. The fee for the license it needed is $1820, and the difference is $1320.

RECOMMENDATION

It is

RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of a violation of Section 561.12 and imposing an administrative fine of $1320.

ENTERED on October 9, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this October 9, 1996.

COPIES FURNISHED:

Miguel Oxamendi, Senior Attorney Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Nicholas Lukacovic

2902 Southwest 30th Street Cape Coral, Florida 33914

Nicholas Lukacovic Diamond Investigations

1314 Cape Coral Parkway, Suite 203 Cape Coral, Florida 33904

Nicholas Lukacovic

1714 Southeast 47th Street Cape Coral, Florida 33904

John J. Harris, Director Department of Business and

Professional Regulation Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-001011

Orders for Case No: 96-001011