STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 96-4731

) BILLY BOY'S OF PINELLAS, INC., )

d/b/a BIG SHOTS, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 30, 1997, a formal administrative hearing was held in this case in St. Petersburg, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Miguel Oxamendi

Assistant General Counsel Department of Business and

Professional Regulation Division of Alcoholic Beverages

and Tobacco Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: No Appearance1

STATEMENT OF THE ISSUES

The issue in this case is whether the Petitioner should fine the Respondent up to $1,000 for alleged violation of Section 561.14(3), Fla. Stat. (1995).

PRELIMINARY STATEMENT

On August 26, 1996, the Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the DABT), filed an Administrative Action, DABT Case No. CL 62 960018, alleging that the Respondent, Billy Boy’s of Pinellas, Inc., d/b/a Big Shots, violated Section 561.14(3), Fla. Stat. (1995), by purchasing alcoholic beverages for resale from another retailer not licensed as a manufacturer, bottler or distributor. The Respondent disputed the charges and requested formal administrative proceedings.

On October 3, 1996, the DABT referred the matter to the Division of Administrative Hearings (DOAH), where it was given DOAH Case No. 96-4731 and scheduled for final hearing on January 30, 1996, in St. Petersburg.

The Respondent’s owner, William Kovic, did not appear for the final hearing. The Respondent’s former manager, Keith Gardner, who signed the Respondent’s request for formal administrative proceedings as manager, and the Respondent’s current manager, Cindy Rogers, appeared and stated that Kovic was ill and would not be in attendance but that he had asked them to

appear to testify in Respondent’s behalf. They also requested permission to represent the Respondent at the hearing, but the DABT objected, and the request was denied as not being in compliance with the requirements of F.A.C. Rule 60Q-2.008.

The DABT called three witnesses and had Petitioner’s Exhibits 1 and 2 admitted in evidence. Gardner and Rogers were permitted to testify in the Respondent’s behalf.

Neither party ordered the preparation of a transcript of the final hearing. They were given ten days in which to file proposed recommended orders. Only the DABT filed a proposed recommended order.

FINDINGS OF FACT

1. The Respondent, Billy Boy’s of Pinellas, Inc., d/b/a Big Shots, holds a temporary Series 4-COP license, license number 62- 00601, for licensed premises at 3934 49th Street North, St. Petersburg, Florida.

2. The previous licensee for the premises transferred the license to the Respondent, effective July 3, 1996.

3. The sole owner and corporate officer of the Respondent is William Kovic.

4. Within a week after assuming ownership and control of the licensed premises, the Respondent’s head bartender told him that several items of bar supplies and inventory needed to be replenished, including Budweiser beer in cans. Kovic told his bartender that he was going to the nearby Publix and would buy

   the needed items there. He took money out of the bar cash register to pay for the purchases.

5. Kovic returned with the Publix purchases a short time later and gave them to his bartender for her use. Included among the Publix purchases were four 12-packs of Budweiser beer in cans. The bartender placed some of the Budweiser beer in the bar’s stock of inventory for resale and resold it in the course of bar business. The rest of the beer was stored in the cooler.

6. Two days later, the bartender told Kovic that some of his customers were requesting particular brands of beer that were not available at the bar. Included among these were Icehouse, Red Dog and Michelob Lite. She told Kovic that these customers likely would take their business elsewhere if the bar could not sell their preferred brands. Once again, Kovic said he would go to Publix to get them and took money out of the bar cash register to pay for them. A short time later, Kovic returned to the bar with a case each of Icehouse, Red Dog and Michelob Lite. As before, the bartender placed some of the beer in the bar’s stock of inventory for resale and resold it in the course of bar business. The rest of the beer was stored in the cooler.

7. The Respondent maintained receipts for these beer purchases among his other receipts evidencing purchases of alcoholic beverages for resale at the bar.

8. Publix is a licensed retail vendor of beer. It is not licensed as a manufacturer, bottler or distributor. Nor is Publix involved in any pool buying group with the Respondent.

9. Although Kovic did not testify, his defense to the charge in this case was that he bought the beer in question for use at a private party at his parents’ motel room thrown to celebrate his new bar. His former and current managers testified in support of this defense. Both testified that beer indeed was purchased for a private party and that it was set aside and labeled as such and was not sold at the bar. The former manager testified that it was his error to place the receipts in with the other receipts evidencing purchases of alcoholic beverages for resale at the bar.

10. The testimony and evidence raised questions as to existence and time of the alleged party. But even if the testimony of Kovic’s former and current managers was truthful, neither was a witness to any conversation between Kovic and his former head bartender concerning these beer purchases, and neither could directly dispute the former bartender’s testimony that at least some of the Publix beer purchases were resold at retail.

11. Both Kovic’s former and current managers also testified that the former head bartender, who informed the DABT of these alleged violations, was fired on or about July 15, 1996, was disgruntled, and had a motive to falsely accuse Kovic. However,

they had no direct information from which they could conclude that the former head bartender was lying; they had to take Kovic’s word for it. While it is possible that the former head bartender was lying, it is found to be more likely that Kovic’s defense was fabricated and that his former and current managers testified to help Kovic avoid license discipline.

CONCLUSIONS OF LAW

12. Section 561.29(1)(a) and (e), Fla. Stat. (1995), authorizes the DABT to revoke or suspend an alcoholic beverages license for violation of the statutes and rules pertaining to licensure. Subsection (3) of Section 561.29 also authorizes the imposition of a civil penalty of up to $1,000 per transaction for such violations.

1. Section 561.14(3), Fla. Stat. (1995), requires holders of vendor licenses to purchase alcoholic beverages for resale only from persons licensed as a manufacturer, bottler or distributor. (Under the statute, purchases from another retail vendor not licensed as a manufacturer, bottler or distributor are strictly limited to qualifying purchases between members of a pool buying group, which did not occur in this case.)

2. Under F.A.C. Rule 61A-2.022(11), the routine penalty for a violation of Section 561.14(3), Fla. Stat., is a $1,000 fine for the first occurrence. (Under F.A.C. Rule 61A-2.022(7), a 20-day license suspension is possible in lieu of the fine.)

3. As found, the Respondent was proven guilty of a violating Section 561.14(3), Fla. Stat. (1995). In so finding, the Respondent’s explanation had to be rejected as factually untrue. Under these circumstances, there is no reason to reduce the routine penalty.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the DABT), enter the final order: (1) finding the Respondent guilty of violating Section 561.14(3), Fla. Stat. (1995); and (2) imposing a $1,000 fine.

RECOMMENDED this 19th day of February, 1997, at Tallahassee, Florida.

J. LAWRENCE JOHNSTON

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 19th day of February, 1997.

ENDNOTE

1. Initially, Keith Gardner, then manager of the Respondent, requested the formal administrative hearing in this case. Later, he ceased to be the Respondent’s manager, and the Respondent’s owner, William Kovic, began serving as the Respondent’s

representative. At the hearing, Kovic did not appear. See Preliminary Statement. Gardner appeared but only in his capacity as a witness under subpoena. The Petitioner objected to the request of Gardner and another witness, Cindy Rogers, currently the Respondent’s manager, to act as qualified representatives for the Respondent, and the request was denied. See Preliminary Statement.

COPIES FURNISHED:

Miguel Oxamendi

Assistant General Counsel Department of Business and

Professional Regulation Division of Alcoholic Beverages

and Tobacco Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

Billy Boy’s of Pinellas, Inc. d/b/a Big Shots

c/o William Kovic

3934 49th Street North

St. Petersburg, Florida 33709

Richard Boyd, Director Department of Business and

Professional Regulation Division of Alcoholic Beverages

and Tobacco Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

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 within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

1 Initially, Keith Gardner, then manager of the Respondent, requested the formal administrative hearing in this case. Later, he ceased to be the Respondent’s manager, and the Respondent’s owner, William Kovic, began serving as the Respondent’s representative. At the hearing, Kovic did not appear. See Preliminary Statement. Gardner appeared but only in his capacity as a witness under subpoena. The Petitioner objected to the request of Gardner and another witness, Cindy Rogers, currently the Respondent’s manager, to act as qualified representatives for the Respondent, and the request was denied. See Preliminary Statement.

Docket for Case No: 96-004731

Orders for Case No: 96-004731