STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 97-1691

) SUNNY SOUTH LODGE NO. 671 IBPOE, ) d/b/a SUNNY SOUTH LODGE NO. 671 ) IBPOE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 25, 1997, at West Palm Beach, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James D. Martin, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Sammie L. Joseph

President and Exalted Ruler Sunny South Lodge No. 671 Post Office Box 1425

Delray Beach, Florida 33444

STATEMENT OF THE ISSUES

Whether Respondent violated Section 562.12(1), Florida Statutes, by selling alcoholic beverages in a manner not

permitted by its license and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Respondent is an Elks Club that holds an alcoholic beverage club license, which authorizes it to sell alcoholic beverages to club members and to nonresident guests. No other sales are permitted under that license.

On January 29, 1997, Petitioner filed a two-count Administrative Action against Respondent that alleged certain facts pertaining to sales of alcoholic beverages on December 20, 1996, and on January 10, 1997. Based on those facts, Petitioner alleged that Respondent made unauthorized sales of alcoholic beverages, thereby violating the provisions of Section 562.12(1), Florida Statutes. Respondent thereafter timely requested a formal hearing to challenge the alleged violations; the matter was referred to the Division of Administrative Hearings; and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of Special Agent Johnnie Wilson and of Captain Debbie Beck. Both of these witnesses are employees of the Petitioner. In addition, Petitioner presented one composite exhibit, which was accepted into evidence. Respondent presented the testimony of Sammie L. Joseph, Willie Lang, and Clarence Patrick. All three witnesses are members of the Respondent. At the time of the formal hearing, Mr. Joseph served the club as its President and Exalted

Ruler. Respondent presented no exhibits. Respondent did not dispute the underlying facts of this proceeding, but appeared to ask that its license not be revoked.

No transcript of the proceedings has been filed. The Petitioner filed a proposed recommended order, which has been duly considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. The Respondent, Sunny South Lodge, No. 671, holds license number 60-000784, series 11-C, authorizing it to sell alcoholic beverages on the premises of Sunny South Lodge No. 671, located at 23 Southwest 9th Avenue, Delray Beach County, Florida (the licensed premises). At the time of the formal hearing, Sammie L. Joseph was the President and Exalted Ruler of Sunny South Lodge No. 671.

2. Based on a complaint from the Delray Beach Police Department, Petitioner initiated an investigation on November 8, 1996, to determine whether Respondent was selling alcoholic beverages in a manner not permitted by its license.

3. On December 20, 1996, Johnnie Wilson, a Special Agent employed by Petitioner, went to the licensed premises to investigate alcoholic beverage sales to nonmembers. Agent Wilson entered the premises and paid a $3.00 entrance fee. When he paid this fee, someone stamped his hand with a mark that was not

   legible. The stamp was to identify patrons who had paid the cover charge. Agent Wilson was not a member of the club or a guest of any member of the club. At no time did Agent Wilson represent himself as being a member of the club or as being the guest of a member. Agent Wilson purchased from a bartender inside the premises two alcoholic beverage drinks, each containing Tanqueray gin. Agent Wilson paid $4.00 for each drink. No one, including the bartenders inside the premises, asked Agent Wilson whether he was a member of the club or the guest of a member.

4. On January 10, 1997, Special Agent Wilson returned to the licensed premises as part of his investigation. Agent Wilson entered the premises, paid a $2.00 entrance fee, and signed a fictitious name in a spiral notebook. Agent Wilson was not a member of the club or a guest of any member of the club. At no time did Agent Wilson represent himself as being a member of the club or as being the guest of a member. Agent Wilson purchased from a bartender inside the premises two alcoholic beverage drinks, each containing Tanqueray gin. Agent Wilson paid $4.00 for each drink. No one, including the bartenders inside the premises, asked Agent Wilson whether he was a member of the club or the guest of a member.

5. Respondent holds an alcoholic beverage club license issued pursuant to Section 565.02(4), Florida Statutes, which authorizes the club to sell alcoholic beverages only to members

   and nonresident guests.

   
   

6. Respondent has had three prior administrative actions filed against its alcoholic beverage license for violation of Section 562.12(1), Florida Statutes, in 1994, 1995, and 1996. All three prior administrative actions were settled through the payment of a civil penalty.

7. The Division has standard penalty guidelines for violations of the alcoholic beverage law which are set forth in Rule 61A-2.022, Florida Administrative Code. The Division's standard penalty for a fourth occurrence violation of Section 562.12(1), Florida Statutes, is revocation of licensure.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

9. Section 562.12(1), Florida Statutes (1995), provides as follows:

   It is unlawful for any person to sell alcoholic beverages without a license, and it is unlawful for any licensee to sell alcoholic beverages except as permitted by his license, or to sell such beverages in any manner except that permitted by his license; and any licensee or other person who keeps or possesses alcoholic beverages not permitted to be sold by his license, or not permitted to be sold without a license, with intent to sell or dispose of same unlawfully, or who keeps and maintains a place where alcoholic beverages are sold unlawfully, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

10. Section 565.02(4), Florida Statutes, provides in pertinent part:

    Persons associated together as a chartered or incorporated club, . . . shall before serving or distributing to its members or non-resident guests the beverages defined

    herein, . . . pay an annual state license tax of $400. . . . The payment of such club license tax shall authorize the service and distribution to members and nonresident guests of the club only, . . . and any officer, member, or employee of any licensed club who sells or distributes or serves any such beverages to any other person other than a member or nonresident guest of such club for money or other value shall be deemed guilty of selling such beverages without a license and shall be punished as provided by law.

11. Rule 61A-3.019, Florida Administrative Code, provides in part:

    All clubs licensed under the beverage law must adhere to the following regulations:

    1. Alcoholic beverages may be served only to bona fide club members or to their guests. The payment for such service and distribution must be made only by bona fide club members.

       
       

12. Section 561.29(1), Florida Statutes, provides, in pertinent part, as follows:

    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, officials, 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.

13. Rule 61A-2.022, Florida Administrative Code, sets forth the penalty guidelines for the Division of Alcoholic Beverages and Tobacco. The standard penalty for a fourth violation of Section 562.12, Florida Statutes, is revocation of licensure.

14. Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 562.12(1), Florida Statutes, as alleged in the Administrative Action. In making the recommendation that follows, the undersigned has considered that Respondent has repeatedly made illegal sales under its license. The undersigned has also carefully considered the testimony of the three witnesses who testified on behalf of the Respondent, and has concluded that their testimony is insufficient to mitigate the pertinent disciplinary guidelines.1

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's alcoholic beverage license number 60-00784, series 11-C, be revoked.

DONE AND ENTERED this 23rd day of October, 1997, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1997

ENDNOTE

1/ Mr. Joseph testified that he is now in control of the Respondent and will institute controls to prevent future violations. Mr. Joseph also testified that the Respondent's liquor license is used to generate funds that are used to benefit the community. Mr. Joseph argued that the loss of the liquor license will have a devastating impact on the Respondent and on the community. While Respondent's contributions to the community are to be commended, those contributions do not excuse or mitigate these repeated violations of the beverage laws.

Mr. Lang testified that he was of the opinion that the entire investigation was instigated by a neighboring bar. It was not clear why that alleged fact should mitigate the penalty.

Mr. Patrick testified that Respondent was being discriminated against based on race. Mr. Patrick's observations were insufficient to establish his allegations of racial discrimination.

COPIES FURNISHED:

James D. Martin, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Mr. Sammie L. Joseph Sunny South Lodge No. 671 Post Office Box 1425

Delray Beach, Florida 33444

Captain Debbie Beck District Supervisor

400 North Congress Avenue, No. 150 West Palm Beach, Florida 33401

Richard Boyd, Director

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-001691

Orders for Case No: 97-001691