STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

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

)

Petitioner, )

)

vs. ) Case No. 98-1569

)

BOTTOMS UP BAR, INC., )

d/b/a BOTTOMS UP BAR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge Mary Clark, held a formal hearing in the above-styled case on August 18, 1998, in Melbourne (Viera), Florida; and on September 15, 1998, by telephone conference.

APPEARANCES

For Petitioner: Thomas D. Winokur, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Joe Teague Caruso, Esquire

800 East Merritt Boulevard

Merritt Island, Florida 32954-1271 STATEMENT OF THE ISSUE

The Administrative Complaint, as amended, in this case alleges that Respondent engaged in or permitted gambling activity on the licensed premises in violation of Sections 849.14 and 561.29(1)(a), Florida Statutes. The issue for resolution is whether that violation occurred and, if so, what discipline is appropriate.

PRELIMINARY STATEMENT

After the Respondent disputed the issues of fact within the Administrative Complaint, the case was referred to the Division of Administrative Hearings and was scheduled for hearing as described above.

At the hearing Petitioner presented the testimony of agent Sam Brewer and (rebuttal) Michael Fath. Petitioner's Exhibits, numbered 1 through 3, were received in evidence. Respondent presented the testimony of Ann Raftery, Robert Bench, and Lynette Tummolo.

The transcript was filed on October 2 and 6, 1998.

Petitioner filed a Proposed Recommended Order; Respondent submitted its statement of the facts and a memorandum of law. These and the evidence of record have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the agency responsible for issuing licenses permitting the sale of alcoholic beverages in Florida

   and is responsible for enforcing the beverage laws, Chapters 561-568, Florida Statutes.

2. Respondent is a Florida corporation holding alcoholic beverage license number 15-00185, series 4COP, which authorizes it to sell alcoholic beverages at retail at the licensed premises, Bottoms Up Bar, located at 8400 US-1, South, Micco, in Brevard County, Florida.

3. Lynette Tummolo is the president of Bottoms Up Bar, Inc.

   
   

4. Ms. Tummolo's first bar was a restaurant and liquor bar in Palm Bay, Florida: Duke's Place. She and Robert Bench owned the bar as 50/50 partners.

5. Duke's Place was moved to a new location after a hurricane and in August 1996, Ms. Tummolo and Mr. Bench sold their license to David Oliver.

6. In March 1997, Ms. Tummolo started another business, a beer and wine bar, which opened in Micco, Florida. The Articles of Incorporation dated February 19, 1997, and filed with the Secretary of State for Bottoms Up Bar, Inc., list the incorporator as Lynette Tummolo, and the members of the board of directors as Lynette Tummolo and Robert Bench. The most recent annual report, dated March 23, 1998, and filed with the Secretary of State, reflects that Lynette Tummolo and Robert Bench are both directors of the corporation.

7. In June 1997, after David Oliver defaulted on his payments for the license, Lynette Tummolo purchased back the liquor license and had it transferred to Bottoms Up Bar, Inc.

8. Ms. Tummolo applied to the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT) and had approved, a transfer of the liquor license and change of location to Bottoms Up Bar in Micco. The application submitted by Ms. Tummolo lists herself as president and 60% stockholder, Robert Bench as secretary and 40% stockholder, herself as treasurer, and Robert Bench as director.

9. A personal questionnaire form for Robert Bench is attached to Ms. Tummolo's application. This form states that Mr. Bench is the director/manager of Bottoms Up Bar and that he was investing no funds in the business.

10. At the hearing in this proceeding, Ms. Tummolo stated that Robert Bench was not an owner or officer of the corporation Bottoms Up Bar, Inc., but the only reason she put him on the application form was that a staff person from DABT told her that she had to put officers of the corporation and had to show a percentage of stock.

11. Ms. Tummolo's testimony is inconsistent with her sworn affidavit at the end of the form. The testimony is also inconsistent with any established policy of DABT.

12. Ann (Annie) Raftery works as manager of Captain Hiram's, a restaurant and lounge in Sebastian, Florida, near

    Micco. She regularly patronizes Bottoms Up Bar and is a friend of Robert Bench. She also sometimes helps clean up at Bottoms Up Bar after closing.

13. In January 1998, Ms. Raftery decided on her own to start a football pool for the Super Bowl. She drew the grid and collected $20 for each square on the grid representing a wager. Individuals placing a wager wrote their names or some identification on the square they selected. Ms. Raftery carried the grid sheet around with her on a plastic clip-board.

14. On the Friday night before Super Bowl Sunday 1998, Annie Raftery arrived at Bottoms Up Bar around 10:30 p.m. She handed the football pool sheet on the plastic clip-board, for safekeeping, to Robert Bench, who was working as bartender. He stashed it behind the bar for her.

15. On that same Friday, January 23, 1998, in response to a complaint, Sergeant Sam Brewer (at that time, a DABT special agent) commenced an undercover investigation of Bottoms Up Bar. Late that evening he and other agents entered the bar, mingled with the crowd, played darts, and socialized. At one point, Special Agent Brewer asked an individual whether she knew of any pools for the upcoming Super Bowl football game. She responded that he would have to talk to "the boss" and pointed out Robert Bench behind the bar.

16. Agent Brewer then sat at the bar and started talking to Mr. Bench. During the course of the conversation, Mr. Bench

    reached next to the cash register behind the bar and handed a plastic clip-board with the football pool sheet to a female patron sitting at the bar. This individual looked at it and handed it to another woman, later identified as Annie Raftery. Annie Raftery then gave the clip-board to Lynette Tummolo.

17. Agent Brewer asked Robert Bench about the pool and Bench replied that it belonged to Captain Hiram's. Mr. Bench then got Ms. Raftery and directed her to Agent Brewer.

18. Agent Brewer conversed with Ms. Raftery about the pool. She had the clip-board again and explained how to place a wager. Agent Brewer selected a square and put the name, Steve B., on the grid and paid Ms. Raftery $20. She told him she would be at Captain Hiram's or Bottoms Up Bar on Sunday, and he left, as it was closing time.

19. Agent Brewer returned on Sunday, around half-time of the Super Bowl. He approached Mr. Bench at the bar and asked where he could see the football pool sheet to check his numbers. Mr. Bench replied that they had copies, but Ms. Raftery had the original and pointed her out at the end of the bar.

20. Ms. Raftery showed Agent Brewer the pool sheet and he confirmed that it was the one he had marked earlier. He then made a covert telephone call to the other agents waiting outside. They, and assisting officers of the sheriff's office, arrested Mr. Bench and Ms. Raftery. They retrieved $1,200 from

    Ms. Raftery's car and $440 from her home. The remainder of the

    $2,000 she collected had already been paid out for the first quarter of the game.

21. Ms. Tummolo is at Bottoms Up Bar every night, seven nights a week. She remembers Friday, January 23, 1998, was particularly busy. At the hearing she described a plastic clip- board kept at the bar with a sheet on which the bartenders must record the liquor they remove from the back stockroom.

    Ms. Tummolo insists that if she had been seen with a clip-board, it would have been the liquor record and not a football pool.

    Agent Brewer saw Ms. Tummolo with the football pool, however, the night he placed his wager.

22. Bottoms Up Bar does not participate in the Responsible Vendors Program. Ms. Tummolo meets regularly with her bartenders and, at least since the Super Bowl Sunday event, she reminds them that gambling in any form is not tolerated.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

24. Section 561.29, Florida Statutes, provides in pertinent part:

    Revocation and suspension of license; power to subpoena. -

    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:

       (a) 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 Section 561.20, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or the United States. A conviction of the licensee or his or her or its agents, officers, servants, or employees in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by Chapter 92 or the rules of evidence.

       * * *

       (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

       $1,000.00 for violations arising out of a single transaction.

       Section 849.14, Florida Statutes, provides:

       
       

       Unlawful to bet on result of trial or contest of skill, etc. - Whoever stakes, bets or wagers any money or other thing of value upon the result of any trial or contest of skill, speed or power or endurance of human or beast, or whoever receives in any manner whatsoever any money or other thing of value stakes, bet or wagered, or offered for the purpose of being staked, bet or wagered, by or for any other person upon any such result, or whoever knowingly becomes the custodian or depositary of any money or other thing of value so staked, bet or wagered upon any such result or whoever aids, or assists, or abets in any manner in any of such acts all of which are hereby forbidden, shall be guilty of a misdemeanor of the second degree,

       punishable as provided in Section 775.082 or Section 775.083.

25. Petitioner must prove by clear and convincing evidence that the alleged violations occurred. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

26. While a licensee is not the absolute insurer of the actions of its patrons, it is accountable if it was aware of violations by its patrons and failed to take steps to stop the violations. Freeze v. Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco,

    556 So. 2d 1204 (Fla. 5th DCA 1990). This test is similar to, but not the same as, the "due diligence" test applied in Surf Attractions, Inc. v. Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco,

    480 So. 2d 1354 (Fla. 1st DCA 1985), when the licensee or its agents or employees commit the violation.

27. In this case the agency proved that the uncontroverted owner of Bottoms Up Bar, Lynette Tummolo, had at least fleeting knowledge that a football pool was circulating in her facility. An officer/director/employee of the licensee, Robert Bench, knew of, and actually assisted in, the wagering activities conducted primarily by Ms. Raftery. The agency met its necessary burden of proving the alleged violation.

28. Penalty guidelines adopted by the agency in

Rule 61A-2.022, Florida Administrative Code, establish a penalty of $250, and forfeiture of all illegal gross income from

violations of Chapter 849, Florida Statutes. Since the agency recovered the undistributed proceeds from Mr. Raftery, the appropriate penalty is $250.

RECOMMENDATION

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

RECOMMENDED:

That the agency enter its Final Order finding Respondent guilty of violating Sections 561.29(1)(a), Florida Statutes, and 849.14, Florida Statutes, and assessing a penalty of $250.00.

DONE AND ENTERED this 19th day of November, 1998, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1998.

COPIES FURNISHED:

Thomas D. Winokur, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Joe Teague Caruso, Esquire 800 East Merritt Boulevard

Merritt Island, Florida 32954-1271

Richard Boyd, Director Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

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: 98-001569

Orders for Case No: 98-001569