STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

) SKYLINE CATERERS CORPORATION, ) d/b/a CRACKER BARREL, )

)

Respondent. )

______ )

Case No. 01-1117

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly-appointed Administrative Law Judge,

Fred L. Buckine, held a formal hearing in this case on June 19, 2001, at Sarasota, Florida.

APPEARANCES

For Petitioner: Michael Martinez, Esquire

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulations,

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-1007 For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Timothy John O'Dea, on behalf of Respondent, Skyline Caterers Corporation, d/b/a Cracker Barrel, willingly and knowingly falsely swore to having no criminal charges filed against him within the past 15 years on his Alcoholic Beverage and Tobacco license application on September 1, 1999.

PRELIMINARY STATEMENT

On March 21, 2001, the Agency (DABT) referred the Petition for Administrative Action and Respondent's Request for Hearing to the Division of Administrative Hearings to conduct a Section 120.57(1) hearing. By the petition, DABT is attempting to revoke, suspend, or otherwise discipline Respondent's license.

On March 29, 2001, Petitioner filed a Unilateral Response to Initial Order. On March 30, 2001, an Order of Pre-Hearing Instructions and a Notice of Hearing, with the hearing scheduled for May 16, 2001, were issued.

On May 5, 2001, Petitioner filed its Prehearing Stipulation. On May 11, 2001, Respondent, by letter to the undersigned, requested a continuance to retain counsel. On May 14, 2001, an Order Granting Continuance was issued, rescheduling the final hearing for June 19, 2001, at 9:00 a.m.,

Judicial Center, Courtroom 7, at Sarasota, Florida. It is noted that all orders and notices of hearing issued in this case were furnished to and received by: Michael Martinez, Esquire, for

Petitioner; Captain Allen F. Nash, for the Department; and James C. Rowe, Esquire, for Respondent. On July 3, 2001, Timothy John O'Dea faxed a letter to the undersigned maintaining, first, that James Rowe did not represent him. Second, he alledged that he did not receive the order granting his requested continuance and rescheduling the final hearing. Finally, he requested that the hearing be reopened for his participation. Attorney Rowe's letter of July 3, 2001, maintained that he did not represent O'Dea and that he had not entered a Notice of Appearance on his behalf. Mr. Rowe expressed belief that O'Dea had notice of the final hearing.

This confusion between Respondent and Attorney Rowe results solely from O'Dea's failure to act. Accordingly, O'Dea's late- written request to reopen the hearing is, herewith, denied.

The final hearing was delayed for 30 minutes to wait for the arrival of Respondent. At 9:30 a.m., the hearing proceeded without the participation of Respondent who failed to appear.

Petitioner presented the testimony of Suzanne Castro, Special Agent, DABT, and offered five exhibits (1-5) each of which was accepted in evidence. Petitioner's counsel's request for Official Recognition of Rule 61A-2.022, Florida Administrative Code, was granted.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional Regulations, Division of Alcoholic Beverages and Tobacco, is the Agency charged with the responsibility of administrating and enforcing the beverage laws of the State. Chapters 559-568 Florida Statutes.

2. At all times material to this proceeding, Respondent, Skyline Caters Corporation, d/b/a Cracker Barrel, Timothy John O'Dea, President, operated a licensed restaurant-catering business located at 7984 North Tamiami Trail, Sarasota, Florida 34243.

3. At all times material to this proceeding, Respondent applied for and was holding Beverage License Number 51-00228, Series 2APS, package sales only of beer and wine (and other alcoholic beverages under 6 percent alcohol by volume) and

   51-02385 tobacco.

   
   

4. On or about September 1, 1999, Timothy John O'Dea, on behalf of Respondent, completed a License/Permit application, Form ABT 4000-001L. On page four of the application, under oath or affirmation, Mr. O'Dea answered "NO" to the question have you had any criminal charges filed against you within the past

   15 years.

   
   

5. Special Agent Suzanne Castro, testimony proved that the criminal charges portion of the Alcoholic Beverage License

   Application, that asks whether Respondent has any criminal charges filed against him, is used in determining applicant's initial eligibility for the requested license.

6. According to Special Agent Castro, reliance upon the sworn information provided by Respondent was the basis upon which the Agency issued to Timothy John O'Dea the herein- referred to license.

7. In completing the approval process, DABT's routine and subsequent investigation revealed that Timothy John O'Dea had been arrested and charged with thief of services by the Passaic, New Jersey, Police Department on January 18, 1995. The Bergen, New Jersey, Police Department, on August 3, 1995, arrested Respondent a second time on the charge of thief of services.

   The dispositions of the arrests are unknown. Presently, there are two outstanding New Jersey arrest warrants for Timothy John O'Dea.

8. Timothy John O'Dea, willingly and knowingly, falsely swore, under oath or affirmation, of having no criminal charges filed against him within the 15 years prior to September 1, 1999.

   CONCLUSIONS OF LAW

   
   

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

10. Section 559.791, Florida Statutes, provides that:

    
    

    Any license issued by the Department of Business and Professional Regulation which is issued or renewed in response to an application upon which the person signing under oath or affirmation has falsely sworn to a material statement, including, but not limited to, the names and addresses of the owners or managers of the licensee or applicant, shall be subject to denial of the application or suspension of revocation of the license, and the person falsely swearing shall be subject to any other penalties provided by law.

    
    

11. Timothy John O'Dea falsely swore that he had not been charged with a criminal offense within the 15 years prior to his completion of the license application. At the time of completing his license application, O'Dea knew he had been arrested on two separate occasions in New Jersey and he knew those arrests had not been disposed of by the court. O'Dea knew or should have known there were warrants outstanding for his arrest. Accordingly, Timothy John O'Dea's license shall be subject to denial, suspension, or revocation.

12. Rule 61A-2.002, Florida Administrative Code, Penalty Guidelines, calls for a revocation of the license of a Respondent for a first occurrence of a violation of

    Section 559.791, Florida Statutes. Timothy John O'Dea's first violation of this statute requires a revocation of the license issued to him by DABT.

13. The Department is statutorily empowered to suspend or revoke an alcoholic beverage license, such as the one held by Respondent, Skyline Caterers Corporation, d/b/a Cracker Barrel, based upon any of the grounds enumerated in

    Section 561.29(1)(a) and (g), Florida Statutes, which in pertinent part provides:

    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 its agents, officers, servants, or employees, on the license premises, or elsewhere while in the scope of employment, of any the laws of this state. . . .

          
          

          * * *

          
          

          (g) A determination that any person required to be qualified by the division as condition for the issuance of the license is not qualified.

          
          

14. The DABT has shown by clear and convincing evidence that Timothy John O'Dea, on behalf of Respondent, Skyline Caterers Corporation, d/b/a Cracker Barrel, personally violated Section 559.791, Florida Statutes, when he knowingly and willingly falsified his prior arrest record on his license application.

15. Based on the above, DABT shall revoke the license issued to Timothy John O'Dea.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, and review of the penalty guidelines in Rule 61A.2-022, Florida Administrative Code, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order revoking license numbered 51-00228, Series 2APS, issued to Timothy John O'Dea.

DONE AND ENTERED this 24th day of July 2001, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2001.

COPIES FURNISHED:

Michael Martinez, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-1007

Lt. David Merrill Department of Business and

Professional Regulation 1748 Independence Boulevard Building E, Suite 4 Sarasota, Florida 34234

Timothy John O'Dea Cracker Barrell

7984 North Tamiami Trail Sarasota, Florida 34243

Richard Turner, Director Division of Alcoholic Beverages

and Tobacco

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-001117

Orders for Case No: 01-001117