vs. ) Case No. 98-1214
FERRELL A. MELTON, )
AND NORA J. MELTON )
Respondents. )
Pursuant to notice, a formal hearing was held in this case on July 10, 1998, by videoconference between Tallahassee and Tampa, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Thomas D. Winokur
and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
For Respondent: Nora J. Melton, pro se
Whether Respondent sold alcoholic beverages in violation of a municipal ordinance concerning the hours of sale of such beverages and, if so, what penalty should be imposed.
By Administrative Action signed on December 12, 1997, Petitioner charged Respondent with selling alcoholic beverages in violation of a City of Tampa City Code provision concerning the hours of sale. Respondent disputed the allegations and requested a formal hearing. The matter was forwarded to the Division of Administrative Hearings on March 10, 1998, for assignment of an administrative law judge to conduct the hearing.
At the outset of the hearing, Petitioner noted that it was withdrawing Count 2 of the Administrative Action. With regard to Count 1 of the Administrative Action, Petitioner requested that the count be amended to correct a scrivener's error. The request was granted and Count 1 of the Administrative Action was amended to change the statutory reference, Section 562.19 (1)(a), Florida Statutes, to Section 561.29(1)(a), Florida Statutes.
At hearing, Petitioner presented the testimony of two witnesses: Patricia Thompson, Special Agent, Division of Alcoholic Beverages and Tobacco, Department of Business and Professional Regulation; and Officer Anthony Pullara, Tampa Police Department. Petitioner offered and had Exhibits 1 through
3 and Exhibit 5 admitted into evidence. At Petitioner's request, the undersigned also took official recognition of these exhibits. Respondent, Nora Melton, testified on her own behalf and offered no exhibits into evidence.
A transcript of the proceeding was filed on July 20, 1998.
Petitioner timely filed a Proposed Recommended Order. Respondent did not file proposed findings of fact or conclusions of law.
Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with regulating the sale of alcoholic beverages and tobacco in Florida.
Respondent, Ferrell A. Melton and Nora J. Melton, d/b/a Prince Grocery (Respondent), is the holder of Alcoholic Beverage License No. 30-00004, Series 2APS. This license authorizes the Respondent to sell alcoholic beverages on the premises of Prince Grocery, located at 705 West Columbus Drive, Tampa, Florida (licensed premises). Prince Grocery is a neighborhood store.
The City of Tampa Code, Article I, Section 3-3, prohibits places within its city limits and licensed by the State of Florida to sell alcoholic beverages after 3:00 a.m. and before 1:00 p.m. on Sunday.
On September 21, 1997, Officer Anthony Pullara of the Tampa Police Department was dispatched to Respondent's licensed premises at approximately 3:00 a.m. Officer Pullara was dispatched to investigate complaints that Respondent was selling alcoholic beverages after hours.
When Officer Pullara began the investigation of Respondent, he did not immediately go on the licensed premises, but rather positioned himself directly across the street from and
facing the licensed premises. This location placed Officer Pullara about 200 feet from the licensed premises and gave him a clear view of the outside of the store and the parking lot. To aid his vision from this distance and to get a view of what was occurring inside the licensed premises, Officer Pullara used binoculars.
On Sunday, September 21, 1997, between 3:00 a.m. and 3:55 a.m., Officer Pullara observed several persons enter the licensed premises. In each instance, the person would go to the front door of the premises and then knock on the door. Respondent, Nora Melton, who was inside the premises, would unlock the door and allow the person to come inside. After a short time inside, the patron would leave the premises carrying a brown paper bag that appeared to contain something. Officer Pullara could not see the contents of the bags. However, from the size and shape of the bags, the bags appeared to contain objects about the size of either bottles of beer or a quart of beer. Although Officer Pullara never verified the contents of any of the bags, he suspected that the bags contained beer.
At approximately 3:55 a.m. on Sunday, September 21, 1997, George Munoz went to the front door of the licensed premises and appeared to knock on the door. Thereafter, George Munoz entered the premises. From Officer Pullara's vantage point, he observed Respondent and Munoz in the licensed premises appearing to engage in a friendly conversation. Officer Pullara also observed Respondent gather some bags from the front register
area and then escort Munoz to the rear of the store. For the brief time Respondent and Munoz were in the rear of the store, they were out of Officer Pullara's view. When they returned to the front area of the licensed premises to the area where the cash register was located, Officer Pullara observed Munoz give something to Respondent. It then appeared to Officer Pullara that Respondent escorted Munoz to the front door and unlocked it so that he could leave. Munoz then exited the licensed premises carrying a brown paper bag. From Officer Pullara's observation's, the transaction with Munoz appeared to be similar to the transactions that Officer Pullara had observed between Respondent and other individuals who had come to the licensed premises between 3:00 a.m. and 3:55 a.m. on this same day.
As Munoz was leaving the licensed premises, Respondent came to the front door and she and Munoz continued to engage in a conversation. Due to his position, Officer could not hear what the Respondent and Munoz were saying to each other, but it appeared to him to be a friendly conversation.
After Munoz left the licensed premises, he went toward the car from which he had earlier exited. However, prior to getting into the vehicle Munoz pulled down the brown bag and a plastic bag contained therein, revealing two quarts bottles bearing the name "Schlitz Malt Liquor." In describing this event, Officer Pullara testified that "[Munoz] held them up in the air in front of his face, as if showing the other occupant of the vehicle that he had in fact purchased the beer."
Officer Pullara then drove his police car into the parking lot of the licensed premises and observed Munoz get into his vehicle with the two quarts of Schlitz Malt Liquor. After Munoz pulled out of the parking lot, Officer Pullara stopped him. Officer Pullara then confiscated the two quarts of malt liquor.
After he confiscated the malt liquor from Munoz, Officer Pullara returned to the licensed premises and arrested Respondent Nora Melton for after-hour sale of alcoholic beverages. Respondent was charged with the after-hour sale of alcoholic beverages and resisting an officer. Munoz did not testify at trial and Respondent Nora Melton was subsequently acquitted of the charge related to after-hour sale of alcoholic beverages. As a result of the events of September 21, 1997, Respondent was convicted of resisting arrest although adjudication was withheld on this charge.
There is no dispute that, on September 21, 1997, Munoz got two quarts of Schlitz Malt Liquor from the licensed premises. However, Respondent's version of how Munoz came in possession of the malt liquor is at odds with that of Officer Pullara.
According to Respondent, a female customer who had been in the licensed premises earlier telephoned Respondent and indicated that Respondent had forgotten to give the customer the cigarettes which she had purchased. Respondent knew this customer. However, when the customer called, Respondent did not recall whether she had given the customer the cigarettes. Nonetheless, Respondent gave the customer the benefit of the
doubt and told her that if she came "right now . . . I'll give them to you."
After the telephone conversation, the customer arrived at the licensed premises to retrieve the cigarettes. Respondent went to the front door and unlocked it to let the customer in, but did not relock the front door once the customer was inside. After Respondent gave the customer the cigarettes, the customer decided to purchase lottery tickets, which were located on the front counter area of the licensed premises. During the course of these transactions, Respondent and the customer engaged in a casual conversation in the front counter area of the licensed premises.
While Respondent and the customer were engaged in conversation, Munoz, who appeared to be drunk, entered the premises through the unlocked front door and then reached around the customer for a bag. Respondent had known Munoz for several years and warned the customer that Munoz was a "dangerous person." As Munoz proceeded to the back of the store where the beer was located, Respondent told him that he could not purchase any beer because it was after 3:00 a.m. Munoz told Respondent, "Wait and see what I do." Munoz continued to the back of the store, moved a barricade that was in front of the beer, and removed two quarts of malt liquor. When Munoz returned to the front of the licensed premises, Respondent ordered him to give her the beer because he was not going to "[take] it outside." Respondent came from behind the counter where she had been
standing, got between the customer and Munoz, and tried to grab the beer from Munoz. Munoz refused to give Respondent the beer and began "turning around and swinging the beer at [Respondent]."
While Respondent was attempting to take the beer from Munoz, she thought of using a bat to break the beer bottles but decided against doing that for fear that he would hurt her. Respondent's concern for her own safety was based on her knowledge or belief that on an earlier occasion Munoz had broken his girlfriend's arm and "knocked her eye out."
Respondent told Munoz that if he left the premises with the beer, she would "charge" him with shoplifting. Despite Respondent's threats and attempts to grab the malt liquor from Munoz, he left the licensed premises with the two quarts of malt liquor. While in the parking lot, Munoz removed or lowered the bag and displayed the two quarts of Schlitz Malt Liquor, by waving it in front of his face.
At the time of the investigation which is the subject of these proceedings, Respondent had known Munoz for many years. Although Munoz had been a customer of the licensed premises, Respondent has had problems with him. About six years ago, Munoz gave Respondent a "bad check" which he never paid. Respondent believes that her problems with Munoz are due to his anger toward her because she always asks him about paying the check.
On Monday morning, at about 11:00 a.m., September 22, 1997, Respondent went to the police department to file an incident report regarding Munoz taking the malt liquor from the
licensed premises. Immediately after filing that incident report, Respondent went to the Internal Affairs Office and filed a complaint against Officer Pullara. The basis of Respondent's complaint against Officer Pullara was that he had mistreated her when he arrested her on September 21, 1997.
Petitioner filed the subject Administrative Action against Respondent based on a complaint and report from the Tampa Police Department regarding an alleged violation of a City of Tampa Code provision relating to the hours that alcoholic beverages may be sold.
At all times relevant to this proceeding, Respondent Nora Melton stayed at the licensed premises. She began staying there because of the increased number of burglaries occurring on the licensed premises. Respondent usually locked the front door to the premises at about 10:00 p.m., but the business did not close at this time. If someone who Respondent knew came to the front door of the licensed premises after 10:00 p.m., she would open it and let that person come inside to make a purchase.
Since the September 21, 1997, incident, however, the shutters to the licensed premises are put down no later than 2:30 a.m. and no customers are allowed into the premises.
The testimony of Respondent was credible and was unrebutted by Petitioner.
Petitioner acknowledged that George Munoz has a long criminal record dating back to July 10, 1979, with his last arrest listed as July 23, 1997, about two months before the
subject incident. The records reviewed at hearing by Agent Thompson reflected only arrests and not the disposition of the arrests. According to the records, Munoz has been arrested for: unlawful use of a weapon; theft; at least three incidents involving the purchase of cocaine; delivery and control of cocaine; disorderly conduct; petty theft; criminal mischief; burglary of a structure; burglary of a dwelling; at least two incidents involving probation violations; escape; domestic assault; domestic battery; at least two incidents of trespass; battery; and trespass of a structure. The record also revealed that a warrant had been recently issued against Munoz for domestic violence, aggravated battery, and driving under the influence.
In an Administrative Action signed on June 2, 1998, Respondent was charged with violating a city ordinance relating to the hours that alcoholic beverages may be sold. The matter was disposed of by an informal hearing and Respondent was fined
$250.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
The Division of Alcoholic Beverages and Tobacco is empowered under Section 561.29, Florida Statutes, to discipline a beverage license when the licensee is found to have committed one or more violations enumerated in that section.
The Petitioner has the burden of establishing, by clear and convincing evidence, that Respondent committed the alleged violations set forth in the Administrative Action. See Department of Banking and Finance vs. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).
In the instant case, the Administrative Action charges Respondent with violating Section 561.29, Florida Statutes, which provides:
The Division is given full power and authority to revoke and 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:
Violation by the licensee or his or her 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 or license requirements of special licenses issued under s. 561.20, or engaging in or permitting disorderly conduct on the licensed premises to violate any of the laws of this state or of the United States.
* * *
(3) The division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, or any rule issued pursuant thereto, not to exceed $1000 for violations arising out of a single transaction.
City of Tampa Code, Article I, Section 3-3 (a), provides:
Sec. 3-3. Hours of sale for consumption on and off premises.
All places within the city licensed by the state to sell alcoholic beverages may be open for business and may sell or serve alcoholic beverages in accordance with the alcoholic in accordance with the alcoholic beverage zoning classification granted to them by the city only during the following hours:
Between the hours of 7:00 a.m. on Monday through Saturday and 3:00 a.m. of the following day;
Between the hours of 3:00 a.m. on Sunday and 1:00 p.m. the following day.
The hours-of-sale ordinance does not provide a specific penalty. However, City of Tampa Code, Section 1-6, provides in pertinent part:
It is unlawful for any person to violate or fail to comply with any provision of the Code and, where no specific penalty is provided therefor, the violation of any provision of this Code shall be punished by a fine not exceeding one thousand dollars ($1000.00) or imprisonment for a term not exceeding six
(6) months or by both such fine and imprisonment. . . .
Such penalties constitute a misdemeanor under Florida Law. Section 775.082, Florida Statutes.
The containers that Munoz took from the licensed premises was an alcoholic beverage within the meaning of Section 561.01, Florida Statutes. Section 562.47(2), Florida Statutes, provides:
Proof that the beverage in question contained in the container labeled as "beer," "ale," "malt liquor," "wine," or "distilled spirits" or 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.
There is no dispute that George Munoz obtained two quarts of malt liquor from the licensed premises at 3:55 a.m., a time during which the purchase of alcohol is not permitted by the City of Tampa Code. However, the critical dispute is whether Respondent Nora Melton sold the alcoholic beverage to George Munoz or whether he stole it. This is the point where the testimony of Officer Pullara and Respondent Nora Ferrell conflicts. Although both witnesses were found to be credible, greater weight is given to the unrebutted testimony of Respondent. Of significance is the fact that Respondent's testimony was unrebutted. Moreover, by virtue of Respondent's being in closer physical proximity to the incident than Officer Pullara, she was better able to know what was going on as well as what was being said. Officer Pullara on the other hand, was across the street, 200 feet away. From this position, Officer Pullara acknowledged that he could not always see what was going on inside the licensed premises, even with binoculars. It was equally clear that Officer Pullara could not hear what Respondent and Munoz were saying to each other.
Considering the record as a whole, including the documented arrest record of Munoz, Respondent's version of events of the September 21, 1998, are not only accepted as true, but are unrebutted by Petitioner.
Based on the foregoing, Petitioner failed to prove by clear and convincing evidence that Respondent sold or served alcoholic beverages at an hour or time proscribed by Tampa City Code, Article I, Section 3-3. Therefore, Petitioner has not established a violation of Section 561.29(1)(a), Florida Statutes.
Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a Final Order
(1) finding that Respondent did not violate Section 561.29(1)(a), Florida Statutes, by selling alcoholic beverages after hours in violation the Tampa City Code; and (2) dismissing the charge in the Administrative Action.
DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998.
Thomas D. Winokur Assistant General Counsel Department of Business
and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Nora J. Melton, pro se 705 West Columbus Drive Tampa, Florida 33602
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.
