STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 98-1572

) LA DOMINICA RESTAURANT, INC., ) d/b/a LA DOMINICA RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on June 25, 1998, in Miami, Florida.

APPEARANCES

For Petitioner: George W. Lewis, Esquire

Department of Business and Professional Regulation

Division of Alcoholic Beverages and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: No appearance at hearing

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Action and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On February 16, 1998, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Department), filed a two-count Administrative Action against Respondent, the holder of an alcoholic beverage license authorizing the sale of alcoholic beverages (beer and wine only) for consumption on the licensed premises. Count I charged that:

On 12/04/97 you, LA DOMINICA RESTAURANT

INC. d/b/a LA DOMINICA RESTAURANT, through your agent, employee, or servant, JUANA ANGELES, President and JOSE MIGUEL RODRIGUEZ,

Treasurer/Secretary possessed or permitted to be possessed at or in your licensed premises, alcoholic beverages not authorized by law to be sold by you, contrary to section 562.02 Florida Statutes.

Count II charged that:

On 11/19/97 you LA DOMINICA RESTAURANT INC.

d/b/a LA DOMINICA RESTAURANT through your agent, employee, or servant, sold an alcoholic beverage which was not permitted to be sold by your license, to wit: rum, to officer J. Chades, who was working in an undercover capacity, contrary to section 562.12, Florida Statutes.

Respondent filed a request for hearing whereby it contested the material facts alleged in the Administrative Action and requested a formal hearing. Consequently, on March 30, 1998, the Department forwarded the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing Respondent had requested.

At hearing, Petitioner called Joel Chades, a police officer employed by the Town of Medley, Florida; Merle Boyer, a police

sergeant employed by the Town of Medley, Florida; and John Cobban, a special agent employed by the Department. Petitioner's Exhibits 1, 2, 3A and 3B, were received into evidence. Neither Respondent nor anyone on its behalf appeared at hearing and, consequently, no evidence was offered on its behalf.1

The transcript of hearing was not ordered. Therefore, at the conclusion of the hearing, it was announced on the record that the parties were accorded ten days from the date of hearing to file proposed recommended orders. Petitioner elected to file such a proposal and it has been duly considered.

FINDINGS OF FACT

1. At all times material hereto, Respondent, La Dominica Restaurant, Inc., held beverage license number 23-21657, series 2COP, authorizing the sale of alcoholic beverages (beer and wine only) for consumption on the premises known as

   La Dominica Restaurant, located at 11710 Northwest South River Drive, Medley, Dade County, Florida (hereinafter "the licensed premises").

2. On November 19, 1997, Joel Chades, a police officer with the Town of Medley, and Mr. Guasch, a code enforcement officer with the Town of Medley, operating undercover, visited the licensed premises in connection with their investigation of complaints that Respondent was selling alcoholic beverages not permitted by their license.

3. Officers Chades and Guasch entered the premises at or

   about 5:56 p.m., and seated themselves at one of the small tables

   provided for customers. When approached by a waitress, Officer Chades ordered a beer and a coke, with rum on the side.

4. The waitress proceeded behind the counter, and was observed to pour a liquid from a plastic container into a styrofoam cup. She proceeded to the cooler for a beer and coke, and returned to the table where she delivered the drink order. The styrofoam cup was shown to contain rum, an alcoholic beverage not authorized to be sold on the licensed premises.

5. On December 4, 1997, Officers Chades and Guasch returned to the licensed premises to continue their investigation and, when approached by a waitress, ordered two Corona beers and a rum and coke. The waitress proceeded to the back of the counter, and was observed to begin to pour what was, presumably, rum into a cup; however, at about that time a patron entered the premises, apparently recognized Officer Chades as a police officer, and, after he spoke with the owner (Juana Angeles) at the counter, the waitress stopped pouring and returned to the table to inquire whether they wished to order food. The officers declined and, despite their request, they were not served the rum and coke.

6. Officer Chades observed a lot of activity behind the counter as employees began moving various objects. Consequently, realizing he had been identified, Officer Chades called for his back-up and shortly thereafter Sergeant Merle Boyer of the Medley Police Department and Special Agent John Cobban of the Division of Alcoholic Beverages and Tobacco entered the licensed premises.

   Upon inspection, one 1.75 liter bottle of Smirnoff Vodka, an alcoholic beverage not authorized to be sold on the licensed premises, was seized from the kitchen area. Immediately outside the back door several other bottles were found, including Johnnie Walker Scotch and Jose Cuervo Tequila, which contained alcoholic beverages not authorized for sale on the licensed premises.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

8. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

9. Pertinent to this case, Section 561.29(1), Florida Statutes, provides that the Division of Alcoholic Beverages and Tobacco 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 that, inter alia, the licensee or his or its agents, officers, servants, or employees, on the licensed premises or elsewhere in the scope of employment violated any of the laws of this state or of the United States. Moreover, Subsection 561.29(3), Florida Statutes, provides that the Division of Alcoholic Beverages and Tobacco 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 for violations arising out of a single transaction.

   
   

10. Pertinent to this case, Section 562.12(1), Florida Statutes, proscribes the following conduct:

    . . . it is unlawful for a licensee to sell alcoholic beverages except as permitted by her or his license, or to sell such beverages in any manner except that permitted by her or his license; and any licensee or other person

    . . . 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.

    Here, by selling rum for consumption on the premises, a practice not permitted under Respondent's 2COP license, Respondent has been shown to have violated the provisions of Subsection 562.12(1), Florida Statutes, and therefore, Subsection 561.29(1)(a), Florida Statutes, as alleged in Count II of the Administrative Action.

11. Also pertinent to this case, Section 562.02, Florida Statutes, proscribes the following conduct:

    . . . it is unlawful for a licensee under the

    Beverage Law or his or her agent to have in his or her possession, or permit anyone else to have in his or her possession, at or in the place of business of such licensee, alcoholic beverages not authorized bylaw to be sold by such licensee.

    
    

    Here, by possessing vodka, scotch whiskey, and tequila on the licensed premises, alcoholic beverages not authorized by law to be sold by the licensee, Respondent has been shown to have violated Section 562.02, Florida Statutes, and, therefore, Subsection 561.29(1)(a), Florida Statutes, as alleged in Count I of the Administrative Action.

12. Having reached the foregoing conclusion, it remains to resolve the appropriate penalty that should be imposed. Pertinent to this issue, Rule 61A-2.022(11), Florida Administrative Code, provides, for a first violation of

    Section 562.12(1), Florida Statutes, a $500 civil penalty; and for a first violation of Section 562.02, Florida Statutes, a

    $1,000 civil penalty. Also pertinent to this issue,

    
    

    Rule 61A-2.022(7), Florida Administrative Code, provides that:

    
    

    All civil penalties may be substituted with license or permit suspensions using the ratio of 1 day for each $50; for example, a licensee could offer a 5-day license suspension instead of a $250 civil

    penalty. . . .

    
    

13. Here, the total penalty of $1,500 as provided by the Department's penalty guideline is appropriate, subject to Respondent's option to substitute a suspension, as provided in Rule 61A-2.022(7), Florida Administrative Code.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding Respondent guilty of the charges set forth in the Administrative Action and imposing a civil penalty in the total sum of $1,500 for such violations, subject to Respondent's option to substitute a period of suspension in lieu of all or a portion of the civil penalty.

DONE AND ENTERED this 17th day of July, 1998, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 17th day of July, 1998.

ENDNOTE

1/ Sometime following the conclusion of the hearing, and the discharge of Petitioner's witnesses, Juana Angeles, Respondent's corporate president, appeared at the hearing location. At the time, although offered an opportunity, she declined to address the charges absent the presence of counsel. Consequently, she was accorded ten days from that date to secure counsel and file a written motion showing good cause why the record should be reopened. As of the date of this order, no such motion has been filed, and the record is therefore deemed closed.

COPIES FURNISHED:

George G. Lewis, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Juana Angeles, President

La Dominica Restaurant, Inc. 11710 Northwest South River Drive Suite 108

Medley, Florida 33178

Major Jorge R. Herrera Augusta Building, Suite 100 8685 Northwest 53rd Terrace

Miami, Florida 33166

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

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: 98-001572

Orders for Case No: 98-001572