Findings Of Fact Bay Street, Inc., trading as Howard's G" String, is located at 102 E. Bay Street, Jacksonville, Florida. This facility has been licensed by Petitioner at all times relevant to these proceedings, (Beverage License No. 269l9, Series 4-COP) Case No. 81-1825 contains ten counts, five of which were voluntarily dismissed by Petitioner. The remaining counts involve alleged lewd and lascivious acts and an alleged offer to commit prostitution. These charges were based on an undercover investigation by the Jacksonville Sheriff's Office in May, June, August and September, 1980. The testimony of Officer Beacham established that on May 8, 1980, the dancer Karen Wood rubbed a male patron's groin with her buttocks and the dancer Rosetta Smith allowed a male patron to rub her groin area. This conduct took place while the dancers were performing for individual customers. In both cases, their breasts were bare and in close proximity to the patrons' faces. The testimony of Officer Bennett established that on June 26, 1980, the dancer Catherine E. Maryon permitted a male patron to fondle her groin area and to fondle her nude breasts. This conduct continued over a period of about five minutes while Maryon was performing for the patron. The testimony of Officer Hall established that on August 30, 1980, the dancer Darlene Veldon Hughes allowed a male patron to massage her genital area and the insides of her legs while she was performing for him. She wore a bikini brief, but was otherwise nude during this procedure. The testimony of Officer Perret established that on September 2, 1980, the dancer Trudy A. Blincoe offered to engage in sexual intercourse with him for $100. This was established by the nature of their discussion and her statement that she would give "no oral sex, just straight sex." Petitioner conducted a separate investigation of Respondent in February, 1981, through its beverage officers who visited the licensed premises in undercover capacities. This investigation culminated in the 29 charges contained in Case No. 81-1824. The testimony of Beverage Officer Johnson established that the dancer Belinda asked him to buy her a drink on February 11, 1981. The drink was delivered by the bartender-waitress, Kathy, who received the money for the drink. Kathy also approached Johnson and the dancer Laura on that date, and asked if Laura wanted another drink. Laura then asked Johnson for a drink, which he purchased from Kathy. Johnson's testimony further established that the dancer Ursala Kadlecik asked him to purchase a drink for her on February 27, 1981. The testimony of Beverage Officer Arguelles established that on February 18, 1981, the dancer Barbie asked him to buy drinks for her on two occasions. Arguelles purchased the drinks as requested. The testimony of Beverage Officer Lachman established that on February 11, 1981, the dancers Susan and Elizabeth each asked him to buy drinks for them, and on February 14 and 27, 1981, Susan again asked Lachman to buy drinks for her. On February 18, 1981, the dancers Karen, Angie and April each asked Lachman to buy drinks for them. He purchased the drinks as requested on each of these occasions. The testimony of Beverage Officer Balaguer established that on February 12, 1981, the dancer Belinda asked him to buy her a drink and on February 18, 1981, the dancer Laura asked him to buy her a drink. He purchased the drinks as requested. The testimony of Beverage Officer Sams established that on February 25, 1981, the dancer Belinda asked him to buy her a drink. She repeated the request and Sams purchased the drink. The testimony of Beverage Officer Johnson established that on February 12, 1981, the dancer Marty approached him and performed her dance at his table. During this procedure, she rubbed his hand against her groin and also held it against her nude breast. The testimony of Beverage Officer Lachman established that the dancer Susan performed dances at his table on February 25 and 27, 1981. On each occasion she rubbed her nude breasts against his face. The testimony of Beverage Officer Johnson established that on February 5, 1981, the dancer Susan suggested a "date" to him. She stated that the price was $75 for the night and $25 as a penalty for her to leave the bar. She also stated that they would go to a motel and she would do "anything he wanted." Johnson's testimony further established that on February 11, 1981, the dancer Lisa suggested that she and Johnson go to a "party" at a motel. She stated that the price for this would be $30 for the bar plus either $50 for one- half hour, $100 for an hour or $200 for the whole-night. She also said Johnson could do "anything" so long as he did not "get rough." The testimony of Beverage Officer Arguelles established that on February 28, 1981, the dancer Lucy Brightwell offered to "go out" with him. She stated that the charge for this service was $100, which included $25 to leave the bar. She told Arguelles that he could do anything he wanted except "the back door." She also motioned to her vaginal area and stated, "straight fuck." The testimony of Beverage Officer Lachman established that on February 27, 1981, he discussed leaving the bar with the dancer Ramona Strickland. The discussion involved three dancers leaving with the three undercover beverage officers (Lachman, Sams and Rowe) . Strickland stated that the price would include $25 for each dancer to leave the bar and a total charge of $248. Lachman later paid the bartender-waitress, Kathy, $88 for the three dancers to leave the bar. The testimony of Beverage Officer Sams established that he discussed going to a hotel room with the dancer Belinda on February 27, 1981. She stated that the charge for this would be $25 to leave the bar and $50 per one-half hour for each dancer. The testimony of Beverage Officer Rowe established that on February 25, 1981, he discussed "going out" with the dancers Laura and Belinda. He asked Laura if he would "get his money s worth," and she said that he would and that she was "good in bed." Rowe continued the discussion on February 27, 1981, when he asked Laura if the "deal was still on." She stated that it was and asked him if he had made room arrangements. Laura also stated that she did not want "to fuck" in the same room with others. Rowe also discussed the transaction with the bartender-waitress, Kathy, who told him to meet the dancers at the side door and to have them back in 30 minutes. Although no records were produced to establish that the dancers identified herein were employed by Respondent, the fact of employment was evident from the control exercised over them by the bartender-waitress, their costumes, their periodic dances on stage and their movements from one customer to another while performing individual dances and collecting fees for this service. Testimony in this regard was given by all Petitioner's witnesses and was not rebutted by Respondent. It was not shown that the identification of some dancers by their first names or nicknames only created any ambiguity in the charges or prejudice to Respondent.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner find Respondent guilty as charged in Counts l through 7, 9 through 17, 19, 21 through 24 and 26 through 29, Case No. 81-1824, and Count 9, Case No. 81-1825. It is further RECOMMENDED that Petitioner dismiss all other charges against Respondent. It is further RECOMMENDED that Petitioner suspend Respondent's alcoholic beverage license no. 26-919 for a period of 45 days. DONE and ENTERED this 26th day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1982.
The Issue At issue is whether respondent committed the offenses alleged in the administrative action and, if so, what disciplinary action should be taken.
Findings Of Fact At all times pertinent hereto, respondent, 623 Washington Avenue Corporation d/b/a Jessie's, held alcoholic beverage license number 23-00438, series 4-COP. On or about July 21, 1995, respondent, through its agents and employees Ryan Fisher and Brett Vapnek, did purchase alcoholic beverages for the purpose of resale at the licensed premises from other than a licensed distributor or manufacturer. On or about August 8, 1995, respondent, through its agent and employee Steven Edisis, failed to maintain records of all monthly purchases of alcoholic beverages and to produce such records for inspection within 10 days of written request therefore.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered imposing a $1,000 civil penalty against respondent for the violation of Section 561.14(3), Florida Statutes, and which revokes respondent's license for the violation of Section 561.21(l)(j), Florida Statues. DONE AND ENTERED this 14th day of May 1996 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May 1996. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Sy Chadroff, Esquire 2700 Southwest 37th Avenue Miami, Florida 33133-2728 Maj. Jorge Herrera Augusta Building, Suite 100 8685 Northwest 53rd Terrace Miami, Florida 33166 John J. Harris, 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
The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of the violation alleged in the Notice To Show Cause issued October 20, 1989 by the Director of the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation and filed herein.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this case, OB's Restaurant and Lounge, Inc. held a Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) license for the premises known as OB's Restaurant and Lounge (OB's), alcoholic beverage license number 74-2421 SRX, Series 4-COP, located at 913 Highway 17, Pierson, Volusia County, Florida. Christine Shuter O'Brien, president of OB's Restaurant and Lounge, Inc. owns 100 per cent of the stock in the corporation. Ms. O'Brien has owned and operated OB's since July 1989. Camiel Long, born July 3, 1969, who was 20 years of age on October, 1989, works with law enforcement investigators of District 12 of the Division, Daytona Beach, Florida, as an Investigation Aide in determining whether licensed establishments are selling alcoholic beverage within their licensed premises to persons under the age of 21 years. On Saturday, October 7, 1989, Long met with Investigator Ron Sullivan for the purpose of Sullivan explaining the procedure used to effect underage investigation. At this time, Sullivan explained to Long that he would enter a licensed premises first and Long was to follow a few minutes later. Upon entry of the licensed premises Long was to approach the appropriate point of sale and ask to purchase an alcoholic beverage. Long was instructed to carry his own personal Florida Driver's license and to present the driver's license upon request. Long's Florida driver's license depicted him as having a mustache. The photographs taken on October 7, 1989 depicts Long as being clean shaven, without a mustache. One of the targeted licensed premises for October 7, 1989 was OB's because of a complaint received from the local police department. At approximately 9:45 p.m. on October 7, 1989, Sullivan and Long arrived at OB's parking lot and Sullivan then entered OB's, with Long following in approximately five minutes. Kevin Cox was in charge of checking identification (ID) at the door of OB's to keep out underage persons, and was in fact checking ID's at the door of OB's on Saturday night, October 7, 1989. On Saturday night, October 7, 1989, at the time Long entered OB's and purchased the beer, the bar was quite busy, some customers were playing pool and a band was playing, as was normal on Friday and Saturday night On Saturday night, October 7, 1989 there were several signs over the entrance to the bar at OB's indicating that proper identification was required and that it would be checked When Long entered OB's, Cox was checking several other persons' ID cards, and did not stop Long to check his ID as he "skirted" around him because he appeared to be about the same age as those persons Cox was checking who were in the 24-25 year-old bracket according to their ID cards. After entering OB's, Long found a seat at the bar, sat down, and ordered a Budweiser beer from Christine Shuter O'Brien who was tending bar at that time, along with Lorraine Ware. Ms. O'Brien opened a long-neck 12 ounce bottle of Budweiser beer, an alcoholic beverage, and served the beer to Long who paid Ms. O'Brien for the beer. Ms. O'Brien did not question Long's age or require any type of ID from him before selling and serving him the beer. Upon receiving the beer and his change, Long turned and handed the beer to Sullivan, and Long left the premises. Sullivan identified himself to Ms. O'Brien and advised her that he had observed her sell an alcoholic beverage to a person under the age of 21 years. Sullivan then requested that they move to area where they could speak. After moving to another area, Sullivan presented O'Brien with a Notice to Appear, in lieu of arrest. Ms. O'Brien has had no previous Beverage Law violation in any establishment that she has owned, including one in DeLand and one in Illinois. Ms. O'Brien's policy concerning the serving of alcoholic beverages is that if someone appears to be of age (21 years or older), then it is not necessary to request an ID to confirm their age. Both Kevin Cox and Lorraine Ware was aware of this policy, as well as other employees. Lorraine Ware, through experience and having taken a course taught by the Division concerning serving underage persons, is aware that it is her responsibility to avoid serving an underage person alcoholic beverage. Ware has also received instruction from Ms. O'Brien not to sell alcoholic beverages to an underage person. Long's appearance on Saturday night, October 7, 1989 and on the day of the hearing (February 13, 1990), four months later, was very similar, except for his clothing, and would cause an ordinary prudent person to question whether he was 21 years of age or older. Long's appearance should have caused both Cox and Ms. O'Brien to require him to confirm his age by some type of identification. O'Brien's failure to require confirmation of Long's age before selling him the beer on Saturday night, October 7, 1989 showed a lack of due diligence on her part, notwithstanding her presumption that Cox had checked Long's ID at the door, or the fact that she had several signs posted concerning the checking of ID's.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the mitigating circumstances surrounding the sale, it is, therefore, RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of a violation of Section 562.011(1)(a), Florida Statutes, and for such violation assess a civil penalty of $500.00. DONE AND ENTERED this 21st day of March, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6962 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-2. Adopted in Findings of Fact 1 and 3, respectively. Adopted in Findings of Fact 4 and 5. Adopted in Findings of Fact 6 and 7. 5.-9 Adopted in Findings of Fact 8, 12, 13, 14 and 12, respectively. 10. Adopted in Findings of Fact 2, 15. 11.-15. Adopted in Findings of Fact 16, 8, 18, 9 and 18, respectively. 16 Rejected as not being supported by substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-3. Covered in Preliminary Statement. Covered in beginning paragraphs. Covered in Preliminary Statement and in Findings of Fact 5. Adopted in Findings of Fact 5, as modified. Adopted in Findings of Fact 4 and 5, as modified. Adopted in Findings of Fact 7, 12 and 14, as modified, except for the last sentence which was rejected because O'Brien was not arrested but given Notice To Appear in lieu of an arrest. 9.-14. Rejected as being more of a restatement of testimony than proposed findings of fact, but if stated as proposed findings of fact then adopted in Findings of Fact 8, 9, 10, 12 and 17. COPIES FURNISHED: Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399- Joseph A. Scarlett, Esquire 208 West Howry Avenue Deland, Florida 32720
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact: The Respondent, Jamestown In The Grove Apartments Club, Inc., d/b/a Suzanne's In The Grove, (hereinafter referred to as "Suzanne's") holds alcoholic beverage license number 23-1193, license series 11-C. Respondent has held the subject license since December of 1971. For a number of years the Respondent operated at its present location in much smaller premises. Several years ago the buildings where Respondent was located were demolished and a highrise condominium building was erected on the site. Respondent obtained space in the new building and embarked upon a plan to create a larger and fancier facility then it had previously operated. The new improved facility began operations in May of 1983 under the present name of Suzanne's In The Grove. The new improved facility is, in the words of one of the witnesses, "... a high fashion, beautiful people-type disco nightclub in Coconut Grove." The property and furnishings for the new improved facility required an investment in excess of two million dollars. During the planning stages for the new improved facility which opened in May of 1983, Suzanne's retained the services of a consultant who was an expert in the planning and operation of limited membership clubs. The consultant worked with the management of Suzanne's in designing the layout of the premises and in instituting operational procedures designed to maximize the ability of management to control access into the premises. The concepts employed by the consultant were modeled on the procedures used at limited access private clubs on military bases. The premises were specifically designed to facilitate the limitation of access to members and their guests. To that end, the premises had a small doorway, had a desk for checking membership just inside the doorway, and had a narrow stairway that led from the reception desk to the main area of the club. Suzanne's also issued plastic membership cards embossed with the member's name in raised letters. The operations procedures included provisions for a doorman, at least one receptionist at the desk, and at least one employee at the top of the stairs. Often they had more than one employee at the desk and at the top of the stairs. Due to unexpected extremely large crowds of patrons when Suzanne's first opened, they also contracted for additional security personnel to assist their regular employees with access control. As part of the preparation for the opening of Suzanne's the management of the club formulated a set of written policies for employees. Included in these written policies were specific prohibitions against any conduct which would constitute a violation of the alcoholic beverage laws. Each employee was given a copy of these written policies and was required to read the policies and then sign a statement agreeing to comply with the policies and acknowledging that he or she would be fired for any violation of the policies. These policies included a specific prohibition against admitting anyone who was not a member or a bona fide guest of a member. Between the opening of Suzanne's and the dates of the violations charged in this case, Suzanne's had fired employees for admitting people who were not members. Prior to opening in May of 1983, Suzanne's also instituted a policy of requiring periodic polygraph examinations of all employees. The consultant helped them formulate the questions to be asked during the polygraph examinations. The polygraph examinations specifically covered questions as to whether the employee was aware of the members-only regulations, whether the employee had ever distributed a membership card without collecting a membership fee and turning the fee over to the club, and whether the employee had ever let anyone into the club who was not a member or a bona fide guest of a member. If the results of the polygraph examination indicated that an employee was being deceptive about whether he or she had admitted non-members to the club, the employee was terminated. The consultant also assisted the management of Suzanne's in the selection of key employees and participated in the interviews of those employees. From the date of opening through August 28, 1983, Suzanne's sold 3,025 memberships at $50.00 each. Since August 28, 1983, Suzanne's has taken in an additional $198,000.00 in membership fees. Because of the large amount of revenue generated by the sale of memberships, Suzanne's has always been very interested in strict enforcement of the members-only policy. It is in Suzanne's best economic interests to maintain strict enforcement because without such enforcement there would be no reason for anyone to buy a membership and Suzanne's would in all likelihood lose substantial membership revenues. Suzanne's entire marketing concept would have been ruined if people could get in easily without having a membership card. When Suzanne's first opened in May of 1983, all employees were required to attend a meeting at which an attorney specializing in alcoholic beverage law told them about the requirements of the liquor laws in general and about the special provisions of the liquor laws relating to 11-C licenses. All of the employees were specifically told that the sale of alcoholic beverages was restricted to members and their guests. The consultant employed by Suzanne's recommended an emphasis on access control at the door rather than a system of point of sale control because Suzanne's did not have an in-house credit or charge system, which is the best system to use for a point of sale control system. An in-house credit system was prohibitively expensive where membership dues were only $50.00 per person. A typical Dade County club with an in-house credit system has an annual membership fee of $460.00 in addition to an initial fee of $1,000.00 to join. Since the dates of the violations charged in this case Suzanne's has maintained its access control procedure at the door and has added a point of sale control system as well. The point of sale control includes imprinting the membership card on all sales slips. On August 28, 1983, two investigators of the Division of Alcoholic Beverages and Tobacco went to Suzanne's at about 2:20 a.m. They told the doorman ("Robert") that they were not members but that they wanted to go in and look around. The doorman let them in, but told them that if anyone asked they should say they came in with a member. Once inside the premises, each of the DABT investigators ordered and were served an alcoholic beverage. None of the bartenders or barmaids asked if they were members. On September 7, 1983, the same two investigators returned to Suzanne's at approximately 11:40 p.m. They walked past the doorman and other employees and entered the premises. No one tried to determine if they were members. Both investigators ordered and were served an alcoholic beverage. On September 10, 1983, two DABT investigators (one who had been on both prior occasions and one who had not been there before) went to Suzanne's. A line of approximately 300 people were waiting outside to enter Suzanne's. To avoid waiting in the line, the two investigators went near the front of the line and waited until the one who had been there before could get the attention of Robert, the doorman. When he got Robert's attention, he asked Robert if Robert could do them a favor about the line and gave Robert $5.00. Robert took the money and admitted the two investigators without asking whether they were members. One of the investigators was able to order and be served an alcoholic beverage. It was so crowded inside that the other investigator was not able to place an order for an alcoholic beverage. On September 21, 1983, the two DABT investigators who had visited Suzanne's on the first occasions described above returned to the premises. Again they were able to enter without being asked about their membership status and both ordered and were served an alcoholic beverage. None of the DABT investigators who went to Suzanne's on the four occasions described above were members of the Suzanne's, nor were they bona fide guests of anyone who was a member. On each occasion when they were served alcoholic beverages, they paid the regular price for the beverages, approximately $3.50 each. On all four of the occasions described above when the DABT investigators entered Suzanne's and purchased alcoholic beverages, the club was very crowded. The extent of the crowds on those nights is reflected by the gross receipts for those four nights which were, respectively, $10,099.35, $5,125.60, $9,973.25, and $5,034.15. On all four of the occasions described above when DABT investigators entered Suzanne's, there were several employees of Suzanne's both in the area of the reception desk at the bottom of the stairs as well as at the top of the stairs attempting to control access to the premises and maintain control over the crowds. During 1983 Suzanne's was obtaining security services from Dade Federal Security. The security company would provide plainclothes guards to assist Suzanne's employees check membership, to help maintain order, and to help control the line outside when it was especially crowded. Sometime during 1983 the management at Suzanne's complained to Dade Federal Security that they suspected that some of the guards provided by Dade Federal Security had been taking money to admit non-members into the premises. Dade Federal Security confronted its employees with this complaint and one of the employees confessed to having taken money to admit non-members to Suzanne's. The employee was fired. The foregoing findings of fact contain the substance of the vast majority of the findings proposed by both parties. Proposed findings which are not incorporated in the foregoing findings are specifically rejected as irrelevant, as contrary to the greater weight of the evidence, or as unsupported by persuasive competent substantial evidence.
Recommendation On the basis of all of the foregoing, I recommend that the Director of the Division of Alcoholic Beverages and Tobacco enter a Final Order in this case dismissing all charges against the licensee. DONE AND ORDERED this 3rd day of July, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1985. COPIES FURNISHED: Howard Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sy Chadroff, Esquire 2700 Southwest 37th Avenue Miami, Florida 33133
The Issue The issue in this case is whether the Petitioner's application for an alcoholic beverage license should be approved or whether it should be disapproved for the reason set forth in the letter of disapproval dated April 13, 1990.
Findings Of Fact Based upon the testimony of the witness and the evidence admitted into evidence, the following findings of fact are made: The Department is the state agency authorized to process applications for alcoholic beverage licenses. On January 10, 1990, the Petitioner, Mary L. Hooks, submitted an application to the Department for a series 1-APS alcoholic beverage license. Petitioner sought the license for a business known as Mary's Bait & Tackle which is located at 110 Conners Highway, Canal Point, Palm Beach County, Florida. According to records submitted to the Department, Petitioner's mailing address was P.O. Box 604, Canal Point, Florida, 33438. In response to questions posed on the alcoholic beverage application form, Petitioner disclosed that she was convicted of a felony, the delivery of marijuana, on January 22, 1986. That charge and conviction stemmed from activities which had purportedly occurred in Palm Beach County, Florida. Petitioner's civil rights were restored by executive order entered December 2, 1988. On April 13, 1990, the Department notified the Petitioner that her application for license no. 60-5357, 1-APS had been disapproved. That notice provided the following reason and authority for the disapproval: Authority 561.15(1)(2) and 112.011, Florida Statutes Reason(s) Applicant, Mary L. Hooks, has been convicted of a felony within the last past fifteen years and is not believed to be of good moral character. While Mrs. Hooks has a Restoration of Civil Rights, the crime for which she was convicted directly relates to the alcoholic beverage laws and, for this reason, the application is being denied. Petitioner timely filed a challenge to the notice of disapproval, but did not appear for the formal hearing. No evidence was presented on her behalf.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco entered a final order denying Petitioner's application for a series 1-APS license. DONE AND ENTERED this 24th day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1990. APPENDIX TO CASE NO. 90-2916 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1, 2, 3, 5, and 6 are accepted. Paragraph 4 is rejected as not supported by the record or hearsay. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. COPIES FURNISHED: D. Lance Langston Assistant General Counsel Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Mary L. Hooks P.O. Box 605 Canal Point, FL 33438 Cpt. Debbie L. Gray Elisha Newton Dimick Building 111 Georgia Ave., Room 207 West Palm Beach, FL 33401 Leonard Ivey, Director Dept. of Business Regulation Div. of Alcoholic Beverages & Tobacco The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1007
Findings Of Fact The Tanga Lounge, operated by Respondent Rodde Inc., is located at 6333 West Columbus Avenue, Tampa, Florida. This facility has been licensed by Petitioner at all times relevant to these proceedings. Respondent's records show Mr. Joe Redner as the sole stockholder and corporate officer of Rodde, Inc., which is the holder of alcoholic beverage license No. 39-738. Case No. 81-2566 contains three counts of begging or soliciting for alcoholic beverages by employees of Respondent on August 6, 1980. Testimony by former Beverage Officer White established that the solicitations of three drinks by two employees were made as charged in the Notice to Show Cause. White purchased the drinks as requested by these employees, who received a "ticket" for each of the drinks purchased for them by White. Case No. 81-2567 contains 44 counts of begging or soliciting drinks by various employees of Respondent and 44 counts charging that Respondent conspired with these employees for the purpose of soliciting drinks. These charges are primarily based on the investigations of Beverage Officers Gary Hodge and Michael Freese. The period of their investigation was October 17, 1980 through May 15, 1981. Count 52 was based on a solicitation of Detective Phil Mickel of the Tampa Police Department, who was in the licensed premises in an undercover capacity on November 6, 1980. At the request of dancer-employee Cathy Andrews, Mickel purchased a "double" for her and observed that she received two tickets from the waitress. 5 Former Tampa Police Department Detective Nick Haynes was in the licensed premises on November 6, 1980, and was approached by the dancer-employee, Cheryl Jonas, who requested that Haynes purchase a drink for her. He did so. This transaction occurred as charged in Count No. 51. Beverage Officer Freese individually and in conjunction with Beverage Officer Hodge, accounted for 38 solicitation charges (Counts 53-57, 59-63, 66, 68-88, and 163-167) . The solicitations charged in Counts 53, 55, 71-80, 83, - 84, 88, 163, 166 and 167 occurred as alleged and involved direct requests for the purchase of drinks ("Will you buy me a drink," or words of similar import) . Freese observed employees receive tickets for these drinks from the bartender or waitress in most instances. The solicitations charged in Counts 54, 56, 57, 59-63,66, 68-70, 81, 82, 164 and 165 were not supported by evidence of direct requests for the beverage purchases by employees of Respondent. At a meeting held about December 17, 1980, Beverage Officers Freese and Hodge were instructed by their supervisor to require that dancers request drinks before ordering. This procedure was adopted to avoid situations where the beverage officer was not asked to buy a drink, but eventually received the bill for the dancer's drink. In implementing the instructions, Freese used these or similar words: "If you want a drink, ask for it.", This statement possibly misled the dancers to believe that Freese was inviting them to order whenever they wanted drinks. The date when Freese first used this statement was not established, but it was subsequent to the mid-December meeting. It was noted that Freese was not solicited during the first two months of the investigation. Therefore, all or substantially all of the solicitation charges involving Freese took Place after he first issued the "invitation." Beverage Officer Hodge individually testified as to solicitation Counts 58, 64, 65 and 67. Counts 58, 65 and 67 did not involve a direct request for beverage purchase. Count 64 occurred as alleged and was based on a direct request for beverage Purchase ("Why don't you buy me one now?"). This request was made during the early morning of January 13, 1981. Although this was after the December meeting which Hodge attended, it was not shown that he made any statement which could have been interpreted as an "invitation" by any employee of Respondent. The fact that customers regularly Purchased drinks for the dancers was well known to the management as evidenced by the tickets issued to employees for drinks purchased in their behalf. These tickets were redeemable by the dancers for one dollar each. Thus, employees were rewarded and implicitly permitted to solicit drinks. Respondent's announced policy was, however, to reprimand or discharge any employee who was caught begging or soliciting drinks. This policy was attested to by bartenders; former employees and dancers. Although it cannot be found that Respondent actively encouraged its employees to solicit drinks, it did encourage socializing with customers to a degree which would elicit offers to purchase drinks for them. Respondent has since discontinued the practice of issuing tickets or other employee incentives to obtain customer purchased drinks. Counts 127 through 161 involve drug charges. Purchases were made by Beverage Officer Freese and Hedge, individually and together. Their testimony and that of Florida Department of Law Enforcement Crime Lab personnel established that controlled substances were purchased from dancer-employees of Respondent on the licensed premises as charged in Counts 127 through 137, 156 and 158. The transactions which-were established to have been carried out involved cocaine, methaqualone and cannabis deliveries by dancer-employees Margie Wade, Janie Marsie, Lori Basch and Lisa Scibilia on February 21, 24, 27; March 2, 9, 13, 17, 23; May 13, 15, 1981. It should be noted that Counts 136 and 137 actually involved one transaction where Hodge and Freese split the delivery. Count 161 concerned a transaction outside the licensed premises and this count, as well as Count 158, involved an employee of another establishment. Petitioner's Exhibit 43 and the supporting testimony concerned a transaction for which there was no charge. Counts 138 through 151, 154 and 159-161 alleged conspiracies to deliver controlled substances corresponding to other counts which alleged actual deliveries. There was testimony on the involvement of third person (not shown to be associated with the Respondent) only as to Counts 134, 146, and 147, which essentially covered a single transaction. No other evidence of conspiracy was presented. On one occasion, Redner was in the Tanga Lounge and within about 15 feet of the beverage officer and the dancer when the delivery took place. However, there was no evidence that Redner was involved or that he had any knowledge of the transaction. Testimony by a former employee that Redner participated in drug use was lacking in credibility and was not corroborated. Counts 3 through 30 and 33 through 50 are charges of lewd dancing by employees of Respondent on the licensed premises. The charges cover 46 dances on 12 separate dates between October, 1980, and February, 1981, performed by 11 different dancer-employees. The acts complained of in these counts were witnessed and attested to by Beverage Officers Hodge and Freese and Tampa Police Department Detective Mickel. The alleged lewd conduct included exposing of the breasts, vagina and anus by dancers during their on-stage performances. Typically, the dancers received dollar tips which customers placed in their bikini bottoms. Some dancers allowed customers to reach inside the bikinis in order to touch their pubic areas. On several occasions the dancers squatted and picked up the dollar bills with their exposed genital areas. On December 11, dancer Cathy Andrews rubbed her vagina, then rubbed the genital area of Beverage Officer Freese, who was observing the dance. Mr. Redner was present during much of the alleged lewd conduct. Although Redner testified that "flashing" was acceptable, the exposure of sexual organs as attested to was not limited to brief "flashes," but was prolonged. Further, Respondent's contention that dancers receiving tips tried to avoid contact by customers is not credible. Rather, the testimony of the officers established that dancers frequently encouraged customers to place their hands against the dancers pubic areas when offering tips. Respondent's, lounge is advertised as an adult entertainment facility and is generally known to include nude dancing. There was no competent evidence as to community standards for this type of conduct in the Tampa area, nor was there any evidence that these acts shocked or offended anyone present other than the investigating officers. Detective Mickel conceded that about five other bars he has visited offer this type of entertainment. Counts 31 and 32 concern an offer of prostitution by one of the dancer-employees to the beverage officers. Their testimony established that the offer was made as charged. This was, however, a single incident and there was no evidence that such offers were recurring or that Respondent had knowledge of this transaction. Counts 1 and 2 of Case No. 81-2567 allege that Robert Rodriguez holds an undisclosed interest in the licensed premises. Such interest, if any, was not reflected in the license transfer application submitted on April 23, 1976. Rather, Joseph Redner and Joe DeFriese were identified as the sole stockholders with no direct or indirect interest held by any other person. Rodriguez previously owned an interest in Deep South Plantation Foods, Inc., whose alcoholic beverage license was revoked by Petitioner. Redner was at one time employed by Rodriguez as manager of Deep South Petitioner asserts that Rodriguez became ineligible to hold an interest in an alcoholic beverage license as a result of the revocation, pursuant to Section 561.15, Florida Statutes, and that he and Redner therefore concealed Rodriguez's subsequent interest in the Tanga Lounge. Respondent contends that Rodriguez is the manager of the Tanga Lounge, but holds no direct or indirect interest therein. Rodde, Inc., was organized on April 19, 1976, and a $2,000 down payment deposit on the contract for purchase of the Tanga Lounge and liquor license was made on April 20, 1976, pursuant to contract signed by DeFriese and the prior owners on that date. This $2,000 check was issued by Robert Rodriguez against his own account. Petitioner produced this cancelled check (Petitioner's Exhibit 4) and numerous other documents which establish that Rodriguez participated in all aspects of Rodde, Inc., management and financial operations since its inception. Rodriguez has unrestricted authority to withdraw funds from corporate accounts and has signed or cosigned for loans and credit purchases. Rodriguez also utilized a Rodde, Inc., credit card to pay personal expenses on a vacation to Las Vegas in 1979. There was no evidence of reimbursement or other accounting to the corporation for these expenditures. The testimony of the Rodde, Inc., employees did not corroborate Redner's testimony that Rodriguez is manager of the Tanga Lounge. Rather, these employees believed Rodriguez was somehow associated with the business, but regarded Redner as the manager and their only supervisor. Rodriguez issued two checks for $1,408.05 on December 1, 1979, one payable to himself and the other to Redner (Petitioner's Exhibit 32) . These checks each carried the notation "bonus $1500", with a further notation apparently accounting for $91.95 in withholding tax. In view of Rodriguez's duties and functions within the corporation, this "bonus" can only be considered a participation in profits. Redner's credit rating and financial management skills are poor. Therefore, Respondent contends that a manager with strength in these areas was needed to ensure business success. However, Rodriguez's unlimited authority in dealing with corporate funds, the investment or loan of his personal funds, his participation in business profits and the absence of any apparent supervisory duties are inconsistent with the employee theory held out by Respondent.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent be found guilty of the charges contained in Counts 1, 2 and 3 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2566. It is further RECOMMENDED that Respondent be found guilty of the charges contained in Counts 1, 2, 31, 32, 51, 52, 64, 127-137, 156, and 158 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2567. It is further RECOMMENDED that all other charges be dismissed. It is further RECOMMENDED that Respondent's Alcoholic Beverage License No. 39-738 be revoked. DONE and ENTERED this 9th day of July, 1982 at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1982.
The Issue This case concerns the issue of whether Respondents' beverage license should be suspended or revoked or otherwise disciplined for sale of alcoholic beverages to a minor. At the formal hearing, the Petitioner called as witnesses Ervin A. Hooper, Patricia Perkins, Christine Ellis, Paul C. Davis, and John Sokol. Petitioner offered and had admitted into evidence one exhibit. Respondent Richard N. Jiosne testified on behalf of Respondents and Respondents also called John Hanks as a witness. Respondents offered and had admitted two exhibits. Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with the findings and conclusions in this order, they were rejected as being not supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact At all times relevant to these proceedings, the Respondents Richard N. and Ann N. Jiosne were the holders of beverage license No. 39-186, Series 2APS. The license is issued to a drive-through beverage establishment located in Brandon, Florida, and known as the Beverage Castle. The licensed premise is a drive-through facility which sells beer, along with other grocery items and sundries. The Beverage Castle is operated by Mr. and Mrs. Jiosne, along with their son and an employee named John Hanks. Late in the afternoon or early evening of July 22, 1983, Patricia Perkins and Christine Ellis drove into the Beverage Castle for the purpose of buying beer. They drove in and stopped and a young boy that appeared to be between 12 and 14 years old came to the car and asked what they wanted. The driver, Patricia Perkins, told him that they wanted a six pack of Michelob beer and he immediately went to a cooler and removed a six pack of Michelob beer and handed it to an older gentleman. The older gentleman then handed the beer to Patricia Perkins and collected her money for the beer. At no time was Patricia Perkins asked for identification. She had not purchased beer at this establishment previously. The young boy was Ritchie Jiosne, the son of Mr. and Mrs. Jiosne, the owners. The older gentleman was John Hanks, the evening manager of the Beverage Castle. On July 22, 1983, Patricia Perkins was 16 years old and her date of birth is December 30, 1966. The passenger in the automobile, Christine Ellis, at the time of the purchase was 17 years old and her date of birth is December 28, 1965. Prior to Patricia Perkins and Christine Ellis entering the Beverage Castle, a deputy of the Hillsborough County Sheriff's Department had had the licensed premises under surveillance. He had observed several cars drive through with individuals who appeared to be young purchasing beer without being required to show identification. The officer also observed the purchase made by Patricia Perkins and Christine Ellis and observed no identification being shown by Patricia Perkins to either of the individuals working at the Beverage Castle that evening. The owners have a policy against selling alcoholic beverages to minors. There is a sign posted next to the register which states: LOOK WE ABSOLUTELY DO NOT, WILL NOT, AND REFUSE TO SERVE ANYONE!, WHO IS ASKED AND DOES NOT HAVE PROPER I.D. HAVE YOUR CARD READY. The employees have been instructed to not serve alcoholic beverages to minors and to check identification. The Beverage Castle has a reputation within the high school students of Brandon, Florida, as a place where minors can buy beer. A prior violation was brought against the Respondents' license within the past year for sale of alcoholic beverages to a minor. That case resulted in recommended dismissal by the Hearing Officer and the Director of the Division of alcoholic Beverages and Tobacco adopted that recommendation and dismissed the case.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered finding the Respondents guilty of the charge as set forth above and imposing a civil penalty of $150.00. DONE and ORDERED this 8th day of June 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 8th day of June 1984. COPIES FURNISHED: Louisa Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. Patrick McElroy, Esquire Suite 200 - Rutland Bank Building 1499 Gulf to Bay Boulevard Clearwater, Florida 33515 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Exhibit 1, a certified copy of the county court record of Gadsden County, Florida, shows that on August 4, 1972 Petitioner was charged with unlawfully selling beer without license, posted bond of $250, and on the date set for trial, did not appear and the bond was ordered forfeited. Exhibit 2, a certified copy of the commitment order by the circuit court of Gadsden County shows that on November 26, 1973 Willie Chandler was sentenced to the county jail for nine months on an adjudication of guilty of receiving stolen property. Exhibit 3, a certified copy of the county court of Gadsden County minutes book, shows that Willie Jasper Chandler was, on 8-16-71, found guilty of unlawfully selling beer "between the hours of 12:00 midnight Saturday and 7:00 A.M. Monday". Testifying in his own behalf Petitioner acknowledged guilt of selling beer on Sunday as charged in Exhibit 3. He acknowledged that he served time as shown by Exhibit 2, but that he was framed. With respect to the charge shown in Exhibit 1, Petitioner contends that he was asleep and never authorized his step daughter to sell any of the beer at the filling station he had just bought which, according to Chandler, constituted the basis for the charge.
The Issue Whether the Division of Alcoholic Beverages and Tobacco (DABT) should take disciplinary action against respondent or its DABT license for the reasons alleged in the notice to show cause?
Findings Of Fact At all pertinent times, respondent 201 West, Inc. d/b/a Central City/Congo Craig's Safari, has held a quota license, No. 11-00259 4COP, authorizing it to sell alcoholic beverages at 201 West University Avenue, Gainesville, Florida. On August 23, 1991, Craig Cinque, respondent's sole shareholder and officer, executed on respondent's behalf a consent agreement which petitioner accepted and filed on September 6, 1991, resolving administrative proceedings then pending. The consent agreement provides: "The second and third floors now known as 'Congo Craig's' shall not admit customers under 21 years of age for a period of two years " Underaged Patrons Apprehended At eleven o'clock on a crowded Saturday night, September 7, 1991, five DABT officers entered Congo Craig's to check patrons' ages. DABT and other witnesses agreed that the bar had enough staff demanding proof from patrons of their ages as they entered, and that the lighting was adequate for this purpose. The DABT officers checked a number of already admitted patrons' "ID's" themselves, and found a false one that a 20-year-old woman, Amy L. Bruns, whom they saw drinking draft beer, had used to gain admission. The Maryland driver's license described a woman of its bearer's height and weight, but depicted a blonde, not the brunette the officers accosted. Petitioner's Exhibit No. 3. The next time DABT officers, again a contingent of five, discovered an under age patron at Congo Craig's was on October 12, 1991, another Saturday night when DABT and other witnesses agreed that the bar had enough staff checking patrons' ages as they entered, and that the lighting was adequate. Kim M. Chiappara, then 20 years and eight months old, was sharing a pitcher of draft beer with her older sister and others when she was interrogated by the DABT officers that night. A search of her person turned up no false identification. She was not asked whether she had used any, or borrowed her sister's identification, to get by the bouncers. The next Friday night DABT officers apprehended Dari A. Layne, who was born on October 27, 1972, at Congo Craig's shortly before midnight, as she was consuming a mixed drink. The "very good" counterfeit Pennsylvania driver's license she produced when asked for identification has her photograph, but lacks a holographic state stamp on the obverse and has a photocopied reverse, albeit duly laminated. After midnight on the same foray, DABT officers discovered Kim C. Stampler, three months and a week shy of her 21st birthday, holding a clear plastic cup containing a purple liquid. She denied having false identification, but a DABT officer's search turned some up. Also in the early hours of October 19, 1991, DABT officers arrested Christopher Wisniewski, an apparently intoxicated 16-year-old, whose father, also apparently intoxicated, only reluctantly admitted their relationship. Christopher, who was not asked what or whose identification, if any, he had used to get in, had a valid Florida driver's license on his person. Bar Tender Arrested The personnel that respondent assigned to check patrons identification as they entered did not take their stations until five o'clock evenings, an hour after opening. Aware of this, the DABT dispatched Randy Gordon (a stout, older- looking 19-year-old, who has succeeded two out of three times in efforts of this kind at some ten other establishments) to Congo Craig's. He readily gained admission between four and half past on the afternoon of November 8, 1991, without being asked for identification. The first customer of the evening, Randy asked Eric Frauman (who had agreed at the last minute to fill in for another bartender, and who ordinarily worked evenings when the bouncers, not the bartenders, are responsible for checking customers' identification) for a hamburger and a beer. Although he had been told to "card" everybody, Mr. Frauman neglected to ask young Mr. Gordon for identification. The second customer that evening was Ernest Wilson, the special DABT agent responsible for paying five dollars an hour for Mr. Gordon's services. Mr. Wilson took the beer, and Mr. Gordon, who paid for both, got the hamburger, which he described as very good. Mr. Frauman, a graduate student hoping to work as an educational counselor, was arrested and eventually prosecuted criminally. Precautions Taken Respondent is qualified as a responsible vendor, and was so certified during the time DABT made such certifications. All of the 18 employees respondent relies on for "security," those checking patrons' ages at night as well as the daytime bartenders and servers, are current with regard to the courses, tests and update meetings the responsible vendor program requires. Respondent's managers are current on requirements for managers. At weekly meetings of the managers, underage drinking was a regular topic. A book depicting driver's licenses in various jurisdictions is kept on the premises, and respondent's employees who testified seemed knowledgeable on the subject. Employees responsible for checking patrons' ages are told to require, at least of anybody who looks younger than 45, a driver's license, military identification or a passport. Several repeat customers testified that they had invariably been "carded." Although Congo Craig's can lawfully accommodate no more than 925 persons at any one time, the crowd "turns over" as the night wears on. From 35,000 to 45,000 patrons were on the premises between September 7, 1991, and November 18, 1991. During this period, DABT officers made several visits on which they failed to find a single patron under the age of 21. According to Kim Ehrich, who once worked at Congo Craig's, but now works elsewhere, Congo Craig's is probably the "strictest" bar in Gainesville, and does a more thorough job checking identification than the three other bars where she has worked in Gainesville. Willful Breach A week or so before the party at Congo Craig's on October 3, 1991, Charlotte Olsen, then social chairperson for the Phi Sigma Sigma sorority, told somebody at Congo Craig's that some of the party-goers would be under 21 years of age. She offered the sorority's wrist bands to demarcate those old enough to drink legally, but Congo Craig's used its own instead. Mr. Cinque was aware that underaged persons were expected to attend the party scheduled for the second and third floors, and decided to allow it, despite the consent agreement, in order to preserve "good will." About half of the 50 to 60 people at the party were under 21 years of age. He added staff, he testified, in an effort to stymie drinking by underaged attendees. This effort proved dramatically unsuccessful. Past Problems DABT established (in aggravation of penalty only) that respondent has a long history of problems of the kind proven in this case, dating to when respondent's father owned the establishment. When Mr. Cinque worked as a manager, before he became the owner, DABT issued some ten orders to show cause alleging beverage law violations, most of which respondent admitted. Since the younger Mr. Cinque assumed ownership, DABT has filed eight additional orders to show cause, the first seven of which were consolidated and disposed of by the consent agreement accepted by DABT on September 6, 1991.
Recommendation It is, accordingly, RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco suspend respondent's license for ten (10) days. DONE and ENTERED this 10th day of December, 1992, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact Nos. 1-21, 24, 25, 28, 29, 31, 34- 46, 50, 53-56 and 58 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 22 and 23, it is not that easy to make out the eye color of the woman depicted on the license. With respect to petitioner's proposed finding of fact No. 26, Ms. Chiappara did not testify at hearing; it is not clear what sworn statement is meant. With respect to petitioner's proposed finding of fact No. 27, the evidence suggested that she used the counterfeit license to gain entry. With respect to petitioner's proposed findings of fact Nos. 30 and 33, the method of entry was not proven, but there was speculation. With respect to petitioner's proposed finding of fact No. 32, she was drinking a purple beverage. With respect to petitioner's proposed finding of fact No. 47, she so testified. Petitioner's proposed findings of fact Nos. 48, 49 and 59 are properly proposed conclusions of law. Petitioner's proposed findings of fact No. 51 and 52 have been rejected as not established by the weight of the evidence. With respect to petitioner's proposed finding of fact No. 57, the number of allegations is immaterial. Respondent's proposed findings of fact Nos. 1-10 and 14-17 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, Mr. Frauman did not usually work the day shift. With respect to respondent's proposed finding of fact No. 12, time constraints do not account for the failure to honor the consent order. Respondent's proposed finding of fact No. 13 is properly a proposed conclusion of law. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, Florida 32399-1007 Sy Chadroff, Esquire 2700 S. W. 37th Avenue Miami, Florida 33133-2728 Donald D. Conn General Counsel The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Early Mitchell t/a Mitchell's Fish Market holds 1-COP beverage license which authorizes the sale of beer only for consumption on the premises. At the time scheduled for the commencement of the hearing Mitchell was not present and the hearing commenced. Exhibit 1 shows that the notice of the hearing was served upon Mitchell on May 10, 1977. Shortly thereafter Mitchell arrived and the hearing proceeded. On October 5, 1976 a beverage agent accompanied by an officer from the Tallahassee Police Department inspected Mitchell's Fish Market. Inside they found a partially filled bottle of Smirnoff vodka which was seized, duly marked, and presented in evidence at the hearing. A description of the bottle was substituted for the exhibit and Exhibit 2 was returned to the Beverage Division. On March 9, 1977 another beverage officer, on a routine inspection of Mitchell's Fish Market, discovered behind the counter concealed in an open beer case, one partially filled bottle of Smirnoff vodka. The bottle was seized, marked for identification and retained in the custody of the seizing beverage officer until such time as it was produced in evidence at the hearing. A description of the bottle was entered into the record and Exhibit 3 returned to the Division of Beverage.
