Findings Of Fact At all times pertinent to the issues herein, alcoholic beverage license No. 26-01841, Series No. 2-APS, was issued to Respondents, Frank D. and Estella S. Ryers, for their establishment known as the Big B Restaurant, located at 5570 Avenue B, Jacksonville, Florida. A 2-APS license permits the package sale only of beer and wine. It does not permit the consumption on the premises of beer, wine, or liquor. On March 27, 1983, Investigator Wendell M. Reeves conducted an undercover operation directed against the Big B Restaurant predicated upon reports received by Petitioner that Respondents were conducting sales of alcoholic beverages not permitted by the license at the licensed premises. In furtherance of that operation, Reeves utilized another beverage agent, Van Young, in an undercover capacity to make a controlled buy of an improperly sold substance from the licensees. Prior to sending Young into the licensed premises, Reeves searched Young to ensure that he, Young, had no alcoholic beverage or money in his possession. Satisfying himself that that was the case, he gave Young $15 in U.S. currency and sent him into the licensed premises to make the buy. Young entered the Big B Restaurant at 1:00 p.m. and came out 17 minutes later. When he came out of the licensed premises, Young came over to where Reeves was waiting and turned over to him a sealed 200 ml bottle of Fleishman's Gin. Young told Reeves that he had purchased the gin in the licensed premises from a black male whose description matched that of Respondent Frank D. Byers which is contained on Respondent's application for license. Respondent Frank Byers denies making the sale. On balance, however, there is little doubt it was Respondent who made the sale, especially in light of the fact that this same licensee was issued a letter of warning by the Division of Alcoholic Beverages and Tobacco in October 1981 for possession on the premises of an alcoholic beverage not permitted to be sold under the license. Young also stated that he purchased a second bottle which he consumed on the premises with another black male. However, this evidence was in the form of Reeves' report of what was told him by Young. As such, it is clearly hearsay and can be used only to corroborate or explain other admissible evidence. Therefore, as to the allegation regarding the consumption of the gin on the premises, since it is the only evidence of that offense, it cannot be used to support a finding of fact on that allegation. It may, however, be used to explain how Young got the bottle with which he was seen by Reeves to come out of the licensed premises. Several days later, on March 30, 1983, Reeves again entered the licensed premises, where he told Respondent Estella Byers he was there to inspect the site. She opened the cooler for him and he inspected the beer inside and the cigarettes. While he was doing that, however, he noticed her take a cloth towel and drape it over something behind the bar. He went over to it, removed the towel, and found that it covered a bottle of Schenley's gin. Mrs. Byers immediately said she thought it was her husband's, Respondent Frank Byers, but another individual present at the time, Sharon Thomas, said she had taken it from her brother, who was drunk, and had put it there. Again, as to Ms. Thomas' comments, they, too, are hearsay and can only serve here to explain or corroborate other admissible evidence. In any case, after Ms. Thomas made her comment, she was immediately contradicted by Respondent Estella Byers, who again indicated she thought the bottle was her husband's. In any case, at the hearing, Respondent Estella Byers contended she did not know it was there. On balance, Mr. Reeves' testimony that she covered it with a towel while he was inspecting and the evidence of the prior warning for an identical offense tend to indicate she did know it was there and that it was unlawful for it to be there. There is, however, no evidence to establish sufficiently the reason for its being there.
The Issue The issues presented are those set forth in a notice to show cause filed by Petitioner against Respondents in Case No. AY-74-87-0201. In particular, it is alleged that on March 16, 1988, October 21, 1988 and February 24, 1989, that the Respondents or their agents, servants or employees sold alcoholic beverages to minors in violation of Sections 561.29, Florida Statutes and 562.11(1)(a), Florida Statutes.
Findings Of Fact At all times which pertain to this Notice to Show Cause/Administrative Complaint, Respondents were doing business at 238-240 Atlantic Avenue, Daytona Beach, Volusia County, Florida under the business name Speidi Shack and pursuant to a beverage license issued by Petitioner. That license number was and continues to be number 74-01802, Series 2-COP. On March 16, 1988, and again on October 21, 1988, Michael Vanorder, whose birthday is March 27, 1969, purchased a Light beer from employees of the Respondents in the licensed premises. On February 24, 1989, Tina May purchased a Light beer from an employee of the Respondents in the licensed premises. Her date of birth is August 4, 1968. The Light beers that were purchased by those two individuals are alcoholic beverages. In the incident of March 16, 1988, Vanorder entered the licensed premises as an underage operative of the Petitioner. The purpose of underage operatives is to assist the Petitioner in investigations to ascertain whether suspected alcoholic beverage license holders will sell alcoholic beverages to minors. Vanorder was provided money from the Petitioner to purchase the alcoholic beverage if the licensees, their agents or employees would sell. Betty Warner and Tanya Pandarakis, who are Alcoholic Beverage Agents for Petitioner were in the bar and watched as Vanorder was asked by the bartender what Vanorder wanted. Vanorder indicated that he wanted a Light beer. Mark Barker, the bartender, brought a Light beer to Vanorder and accepted payment for that beer. In this purchase, Vanorder was not asked to produce any identification nor was he asked how old he was. Vanorder was under instructions from Petitioner's agents to validly respond to any questions about his age and to provide accurate identification in support of his remarks. The beer that he was given had been opened by the bartender. These events occurred around 8:35 p.m. The beer that was purchased was then given from Vanorder to Warner. Barker was then arrested by Warner and another Alcoholic Beverage Agent, Fred Dunbar, for selling alcoholic beverages to a minor. The arrest occurred when Dunbar entered the licensed premises following the sale and identified himself as an Alcoholic Beverage Agent. Prior to leaving the premises on that occasion, Respondent John M. Macker was told of the arrest and why an investigation had been made in the first place about suspected sales to minors in the licensed premises. Macker came the next day to meet with Dunbar at the invitation of Dunbar. Macker was told that a complaint file would remain open and that underage operatives would continue to be sent into the licensed premises to see if Macker had corrected the problem of selling to underage patrons. Respondent Macker promised that he would have closer supervision and would give training to his employees about proper identification techniques for sales of alcoholic beverages in the licensed premises. An official notice was given to the Respondents, a copy of which may be found as Petitioner's Exhibit No. 3 which was admitted into evidence. That notice is dated March 17, 1988 and is issued from Dunbar and is acknowledged as having been received by Respondent Macker. It identifies the facts of the sale to a minor and the arrest of Mark Barker and warns Respondents that if the violation occurs again, that Respondents could be charged with the violation of March 16, 1988 and any future violations. Throughout this warning phase associated with the sale of March 16, 1988 Respondent Macker was cooperative in his attitude. As forecast, Petitioner sent Vanorder back into the licensed premises on October 21, 1988 to see if Respondents, their agents, servants or employees would sell him alcoholic beverages. Beverage Agent John Szabo, Agent Dunbar, Lt. Powell and Vanorder went to the licensed premises on that evening. Their activities at the licensed premises commenced around 8:55 p.m. At this time, there were around 10-20 patrons in the bar. Szabo went in first and sat down at the bar and ordered a beer. Vanorder came in some 2-3 minutes later and sat down at the bar. A white female bartender who was identified later as Beth Ann Marsden approached Vanorder and asked him what she could get for him. He asked for a Bud Light. The bartender went to the cooler and came back with an open can of Bud Light and said that the cost of that beer would be $1.25. Vanorder paid her and she gave him back change. Vanorder then went outside the licensed premises and gave the beer to Dunbar. During the course of this purchase, Vanorder was not asked his age or asked for any form of identification which would demonstrate his age. As before, Vanorder was prepared to show a valid identification and give his correct age. After Dunbar was given the beer, he came into the licensed premises and he and Szabo confronted the bartender with the fact that she had sold beer to an underaged patron. They asked if the owner was on the premises and she said that he was not. The bartender was then charged with selling to a minor. She was given a Notice of Appearance for October 25, 1988 which constituted of a letter of final warning to the licensee. A third phase of the investigation occurred on February 24, 1989 when Tina May, an underaged operative for the Petitioner assisted in the investigation of sales to minors. Around 10:50 p.m., Officer Szabo, Beverage Officer Sullivan and Tina May went to the licensed premises. Szabo went in the bar first. One customer was in the bar. Szabo asked for a beer and was asked for his identification and showed his license and was served a beer. Before Tina May entered the license premises, she had been instructed to dress in normal attire and to carry her drivers license and to tell the truth about her age and to give the correct identification. Once inside the licensed premises, May sat where she could be seen by Officer Szabo. The other patron left the bar. Around 11:00 p.m., May was approached by Beth Ann Marsden who asked May what she wanted. May replied that she wanted a Bud Light. The bartender asked for identification and a driver's license was produced which showed May to be underage. Marsden was seen to count on her fingers when shown the identification. She opened up a Bud Light beer for May and gave it to her and said that the price of the beer was $1.25. May gave her $5.00 and received change. She then gave the beer to Szabo. Szabo then told the bartender that he was a Beverage Officer. Marsden recognized Szabo from the prior incident with Vanorder on October 21, 1988. Marsden told Szabo that May was 21 years old. Szabo got the driver's license from May and showed it to the bartender who admitted that she had made a mistake and that she didn't look at the month of the birth. She had only looked at the year, 1968. Out of this incident, an Official Notice was prepared, a copy of which may be found as Petitioner's Exhibit No. 4 admitted into evidence. It sets out the violations of March 16, 1988, October 21, 1988 and February 24, 1989 and the intention of the Petitioner to file administrative charges against the Respondents for sales to minors. Since the Respondents were not there, the list was left with a Rosemarie Savini. That notice was served on November 2, 1989. Before the time of the final hearing in this case, the sole ownership of the licensed premises had been left with John M. Macker. Linda F. Williams no longer is involved with the license in question. Respondent Macker's principle business is that of a commercial fisherman. During the pendency of this investigation, he was gone a lot from his licensed premises because of his other work and relied on his employees to act appropriately concerning sales to minors. In the period 1985 until January, 1989, he had not experienced problems with this. He had posted notices around the bar about sales to minors and had instructed his employees about being careful not to sell to minors. He has calendars from beer distributors which assist in ascertaining the age of minors. March 16, 1988 was Barker's first day on the job, as was October 21, 1988 the first day on the job for Beth Ann Marsden. His instructions to his employees was to check identification if people did not look at least in their fifties or older than Respondent. Since these events, Respondent has taken more detailed steps and placed other signs to avoid sales to minors. He doesn't wish these problems to occur again and regrets that they happened on this occasion. On the other hand, he did not ask for help from the Petitioner after the October 21, 1988 incident as was offered. Following the third sale, he has moved into the licensed premises to maintain better control of the circumstance. No other incidents were reported to have occurred beyond that adjustment concerning sales to minors.
Recommendation Having considered the facts, and the conclusions of law reached, it is, RECOMMENDED that a Final Order be entered which fines the Respondents in the amount of $500 for these violations. DONE and ORDERED this 19th day of October, 1989, in Tallahassee, Florida. CHARLES C. ADAMS 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 19th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2457 Those facts as suggested by the Petitioner are subordinate to facts found in this Recommended Order. COPIES FURNISHED: Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John B. Fretwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John M. Macker 238-240 North Atlantic Avenue Daytona Beach, Florida 32018
The Issue Whether the Application for Alcoholic Beverage License dated March 9, 1988, filed by Ocie C. Allen, Jr., should be approved by the Respondent?
Findings Of Fact Ocie C. Allen, Jr., d/b/a OCA, filed an Application for Alcoholic Beverage License dated March 9, 1988 (hereinafter referred to as the "Application"), with the Division. In the Application, Mr. Allen indicated under "Type of Application" that the Application type was "Other - ownership change because of contract and change of location." Mr. Allen listed himself as the "Applicant" and signed the Application as the "Applicant." The "Current License Number" listed in the Application to be transferred to Mr. Allen is 62-03498, current series 4 COP. The holder of this license was Terri Howell. At the end of the Application there is an "Affidavit of Seller(s)" to be executed by the licensee from whom the license is to be transferred. This affidavit has not been completed in the Application. The purchase price for the business was listed as $86,250.00. By letter dated March 16, 1988, the Division returned the Application to Mr. Allen and informed him that it was being returned for the following reasons: (1.) Need copy of loan in the amount of $86,250.00. (2.) If there are other agreements concerning this change, we will need copies. (Closing Statements) (3.) Need Affidavit of Seller signed by Ms. Howell making sure signature has been notarized on both applications. (4.) If no business name, please use applicants [sic] name also in that blank. Mr. Allen returned the Application to the Division with a letter dated March 21, 1988, and indicated, in part, the following: The Loan of $86,250.00 is 75% of the appraised value for which a 4 COP license was sold in Pinellas County prior to Ms. Howell winning the drawing. This amount is reduced by the amounts she has received from the operation of Spanky's. Thereby the actual amount owed by me to Ms. Howell is $86,250.00 LESS the amount she has received during the operation of Spanky's, approximately, $60,000.00. The Application was not modified by Mr. Allen. In a letter dated March 24, 1988, the Director of the Division requested the following additional information from Mr. Allen: (1.) Need Affidavit of Seller signed by Ms. Howell making sure signature has been notarized on both applications. (2.) Complete (No.5) Type of License Desired: (Series ). By letter dated March 28, 1988, Mr. Allen responded as follows to the Division's request for information: Enclosed is the application for transfer. Ms. Howell signature [sic] on the Independent [sic] Contractor Agreement is the only signature of hers that will be furnished to you. By letter dated April 4, 1988, the Division informed Mr. Allen that Terri Howell, the licensee, needed to sign the Affidavit of Seller. The Division notified Mr. Allen that it intended to deny the Application in a letter dated May 31, 1988. Mr. Allen was provided a Notice of Disapproval of the Application in a letter dated June 29, 1988. The following reasons were given for denial of the Application: Application to transfer the license does not bear the signature of the current licensee and, therefore does not evidence a bonafide [sic] sale of the business pursuant to [Section] 561.32, Florida Statutes. Application incomplete as applicant has failed to provide complete verification of his financial investment. Also, applicant has failed to provide records establishing the annual value of gross sales of alcoholic beverages for the three years immediately preceding the date of the request for transfer. The Division is, therefore, unable to fully investigate the application pursuant to Florida law. By letter dated July 19, 1988, Mr. Allen requested a formal administrative hearing to contest the Division's denial of the Application. Mr. Allen sent a letter to the Division dated October 27, 1988, with an Affidavit requesting permission to pay a transfer fee of $5,000.00 "in lieu of the 4-mill assessment."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case dismissing the case with prejudice. DONE and ENTERED this 17th day of January, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 17th day of January, 1989. COPIES FURNISHED: Ocie C. Allen, Jr. Post Office Box 10616 Tallahassee, Florida 32302 Lt. B. A. Watts, Supervisor Division of Alcoholic Beverages and Tobacco Department of Business Regulation 345 S. Magnolia Drive, Suite C-12 Tallahassee, Florida 32301 Harry Hooper Deputy General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927
The Issue The issue is whether, pursuant to section 561.32(1)(a) and (b), Florida Statutes, Respondent is required to approve the transfer of alcoholic beverage license to Petitioner after its purported purchase of the license at a sheriff's sale.
Findings Of Fact Prior to the events set forth below, La Cidra Corporation (La Cidra) owned the License. As issued by Respondent, the License authorized La Cidra to sell alcoholic beverages at a bar known as L'Boulevard Café Supper Club,2 which was located in leased premises at 3632-34 Northwest 25th Avenue in Miami (Premises). On October 28, 2013, Steven Beltre (Beltre) obtained a final judgment in the Eleventh Judicial Circuit Court in the amount of about $3.4 million against La Cidra, doing business as L'Boulevard Cafe Supperclub. Respondent has adopted a form, DBPR ABT-6022, for persons to record liens against alcoholic beverage licenses. However, at no material time did anyone record with Respondent a lien against the License in connection with the Beltre judgment. The record does not disclose when La Cidra ceased operating the bar. However, on January 21, 2014, Intervenor registered "L'Boulevard Café Supperclub" as a fictitious name, and Intervenor and La Cidra signed an "Application for Transfer of Ownership of an Alcoholic Beverage License" concerning the License. On February 13, 2014, Intervenor purchased from La Cidra all of its assets, including the License. At closing, La Cidra assigned the Premises lease by an assignment that was signed by La Cidra, Intervenor, and the lessor. The assignment acknowledges that Intervenor has paid the lessor a security deposit of $10,000. A closing statement reflects a purchase price of $100,000, which is represented by a $15,000 deposit and $85,000 promissory note. On February 20, Intervenor filed with Respondent the application described in the preceding paragraph, and Respondent, on the same date, issued to Intervenor a temporary license based on the License. Five days after the closing described in the preceding paragraph, on February 18, 2014, the Clerk of the Eleventh Judicial Circuit Court issued a Writ of Execution directing all sheriffs in the state of Florida "to levy upon property subject to execution of . . . La Cidra . . . to satisfy the sum of [approximately $3.4 million]." The Miami-Dade County Sheriff's Office levied upon property on March 8, 2014--23 days after the closing of the conveyance of the License from La Cidra to Intervenor. The seized property included alcoholic beverages, bar equipment, computers, televisions, phones, stage lights, radios, smoke machines, and shop equipment, as well as the following intangible personal property: a certificate evidencing La Cidra as the licensee under the License, an $85,000 "secured" promissory note that is not further identified, and currency totaling $17,206 in denominations as large as $100 bills. After the seizure, the sheriff advertised the sale of the property by auction on April 30. The list of property to be sold included the License, but not the promissory note or cash, whose disposition is undisclosed in the record. On April 30, 2014--over two months after the La Cidra/Intervenor conveyance--the sheriff executed a Sheriff's Bill of Sale transferring all "right, title and interest" of La Cidra to all of the advertised property to Respondent for the sum of $2000 plus $140 sales tax, which represented the highest bid at the sheriff's sale. Immediately after the sheriff's levy, in March, Respondent was contacted by various parties, including the sheriff's office, which provided Respondent with a copy of the writ of execution and list of seized property.3 On April 7, 2014, Respondent received a letter from Daniel W. Courtney, an attorney whose cover letter states that he represents Intervenor. The letter recites that Respondent properly had issued a temporary license to Intervenor, but later had withheld the issuance of the permanent License to Intervenor due to its receipt of information from the sheriff concerning the purported seizure of the License. The letter asserts that this was an improper seizure because the License was not the property of La Cidra at the time of the seizure and requests that Respondent issue the permanent License to Intervenor without delay. Unmoved by Mr. Courtney's letter, on June 4, 2014, Respondent issued a Notice of Intent to Deny License to Intervenor. The notice cites the writ of execution issued on February 18 and reasons that "neither the putative transferor nor putative transferee possess[es] title for the transfer of the [License]." This reasoning does not account for the simple chronology of events in which the La Cidra/Intervenor conveyance preceded the sheriff's levy and sale. On June 14, 2014, Intervenor requested an administrative hearing on the proposed denial. By Order of Dismissal entered April 30, 2015, Respondent acknowledged that its failure for more than 90 days to issue a decision on Intervenor's transfer application for a permanent License required Respondent to deem that the application had been approved, pursuant to section 120.60(1).4 The Order of Dismissal rescinds, without prejudice, the Notice of Intent to Deny License issued on June 4, 2014, and notes that Respondent approved the transfer of the permanent License to Intervenor on January 30, 2015.5 At about the time that it requested an administrative hearing on Respondent's earlier denial of its transfer application for a permanent License, Intervenor commenced judicial proceedings to obtain relief from Petitioner's claims arising out of the sheriff's sale. Intervenor sought to intervene in supplemental proceedings pertaining to the underlying tort action between Beltre and La Cidra. Intervenor also commenced a legal action against Beltre. The trial court denied the motion to intervene without prejudice, pending resolution of the separate action against Beltre. Intervenor appealed this order, but the appellate court affirmed the trial court on June 3, 2015. On October 6, 2015, the trial court dismissed Intervenor's action against Beltre for lack of prosecution. At the same time that Intervenor was pursuing judicial and administrative relief, on June 6, 2014, Petitioner filed a transfer application for Respondent's approval of the transfer of the License to Petitioner. The page for the signature of the transferor is blank, but Petitioner attached to the application a copy of the above-described Sheriff's Bill of Sale. On July 9, 2014, Respondent issued the above-described Notice of Intent to Deny License to Petitioner that cites Intervenor's documentation of the La Cidra/Intervenor conveyance as the ground for the denial. The evidentiary record omits any evidence of the fair market value of the License and, more importantly, as noted by Respondent in its proposed recommended order, the fact that, on November 13, 2013, Beltre filed with the Department of State a judgment lien certificate.
Recommendation It is RECOMMENDED that Respondent deny the application of Petitioner for a statutory transfer of the License. DONE AND ENTERED this 31st day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2016.
The Issue Should Respondent’s license to sell alcoholic beverages be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent El-Bireh, Inc., held license number 63-02202, ZAPS, authorizing Respondent to sell alcoholic beverages on the premises of Sam’s Big Apple Number 2, located at 110 Manor Drive, Bartow, Polk County, Florida. Zahieh Awad Awadallah is the sole corporate officer and sole shareholder of El-Bireh, Inc. On January 18, 1997, as a result of a complaint from the City of Bartow, the Department initiated an investigation of Respondent’s premises located at 110 Manor Drive, Bartow, Polk County, Florida, for the sale of alcoholic beverages to persons under 21 years of age. On January 18, 1997, Special Agent Greenlee, along with another Department Special Agent, and Gabriel Shuler, went to Respondent’s licensed premises to investigate the sale of alcoholic beverages to persons under 21 years of age. Gabriel Shuler was born on January 7, 1978, and on January 18, 1997, was 19 years of age. At times pertinent to this proceeding, Shuler was 6 feet 6 inches tall and weighed 270 pounds. Shuler had a valid State of Florida driver’s license in his possession on January 18, 1997. The driver’s license carried Shuler’s correct age, height, and weight. The Department’s special agents present at Respondent’s licensed premises on January 18, 1997, instructed Shuler to enter the premises and attempt to purchase an alcoholic beverage. Shuler was also instructed to produce his driver’s license for identification, if requested, and not to attempt to deceive the clerk as to his correct age. Shuler entered the licensed premises and selected a 16-ounce can of “Budweiser” beer from the cooler inside the premises. Shuler purchased this 16 ounce can of “Budweiser” beer from a person later identified as Zahieh Awad Awadallah, the sole shareholder of Respondent. Sahieh Awad Awadallah did not ask Shuler for any identification or ask Shuler if he was 21 years of age. The 16 ounce of “Budweiser” beer purchased by Shuler from Respondent was in a container labeled “beer” and contained “beer,” an alcoholic beverage. The Respondent has not denied that Shuler purchased the beer. Special Agent Greenlee entered the licensed premises after Shuler and witnessed the sale of the beer to Shuler by Respondent. After purchasing this beer, Shuler exited the premises. Upon Shuler’s exiting the premises, the Department’s Special Agent took custody of the beer. Respondent was subsequently advised of the violations by Special Agent Greenlee and was issued a Notice to Appear by Special Agent Greenlee. There is sufficient evidence to show that Sahieh Awad Awadallah, the sole shareholder of El-Bireh, Inc., d/b/a Sam’s Big Apple Number 2, sold a 16-ounce can of “Budweiser” beer, an alcoholic beverage, to Gabriel Shuler, a person under the age of 21 years, without asking Shuler his age or requesting Shuler to produce identification showing his age to be 21 years. There are no mitigating circumstances which would support a reduction of the standard penalty imposed for the violation alleged in the Administrative Action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a final order be entered finding Respondent guilty of violating Section 562.11(1)(a), Florida Statutes, and for this violation that the Department issue an administrative fine in the amount of $1,000 against Respondent and that Respondent’s alcoholic beverage license number 63-02202, ZAPS, be suspended for a period of 7 days. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997. COPIES FURNISHED: James D. Martin, Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Brandon Rafool, Esquire Post Office Box 7286 Winter Haven, Florida 33883 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not on or about the 14th of March, 1976, Pearlie Mae Smith, a licensed vendor, did have in her possession, permit or allow someone else, to wit: Junior Lee Smith, to have in their possession on the licensed premises, alcoholic beverages, to wit: 5 half-pints of Smirnoff Vodka, not authorized by law to be sold under her license, contrary to s. 562.02, F.S.
Findings Of Fact On March 14, 1976, and up to and including the date of the hearing, the Respondent, Pearlie Mae Smith, held license no. 72-65, series 2-COP with the State of Florida, Division of Beverage. The licensed premises is located at 1013 West Malloy Avenue, Perry, Florida. On the morning of March 14, 1976, Officer B.C. Maxwell with the State of Florida, Division of Beverage acting on an informant's information, searched the informant to determine if the informant had monies other than the money that the officer had given him or any alcoholic beverages on his person. Once the informant had been searched and it was determined that the informant was carrying with him only the money that the officer had given him to purchase alcoholic beverages, the informant was sent into the subject licensed premises. The informant returned with a half-pint bottle of alcoholic beverage not permitted to be sold on the licensed premise and indicated that this purchase was made from one Junior Lee Smith. Later in the morning, around 11:30, officers of the State of Florida, Division of Beverage entered the licensed premises and an inspection of those premises revealed a bag containing 5 half-pint bottles of Smirnoff Vodka in the kitchen area of the licensed premises. This bag and contents were admitted as Petitioner's Exhibit #2. The 5 half-pint bottles of Smirnoff Vodka are alcoholic beverages which are not allowed to be sold under the series 2-COP license on the subject premises. When the officers entered, the same Junior Lee Smith was in the licensed premises and indicated that he was in charge of the licensed premises and had been selling alcoholic beverages for "quite some time" together with his wife, Pearlie Mae Smith, the licensee. The bag he indicated, had been whiskey that had been left over from the night before.
Recommendation It is recommended that based upon the violation as established in the hearing that the licensee, Pearlie Mae Smith, have her beverage license suspended for a period of 30 days. DONE and ENTERED this 19th day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Larry D. Winson, Esquire Staff Attorney Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Mrs. Pearlie Mae Smith 1013 West Malloy Avenue Perry, Florida
The Issue By notice to show cause, petitioner charged that respondent, individually or through the acts of its agent/employee, violated the provisions of Section 562.11(1)(a), Florida Statutes, by selling an alcoholic beverage on its licensed premises to a person under the age of 21. Respondent requested a formal hearing on the charges, and the matter was referred to the Division of Administrative Hearings. At the hearing, petitioner called three witnesses and offered three exhibits which were admitted into evidence. Respondent testified on his own behalf and offered no exhibits. A transcript of the hearing was not ordered, and the parties were granted leave until August 21, 1989 to file proposed findings of fact. Petitioner timely filed proposed findings of fact and conclusions of law. A ruling on each of petitioner's proposed findings of fact has been made and is reflected in the Appendix to this recommended order. On August 24, 1989, respondent filed a letter which is here deemed to be his proposed findings of fact; however, his filing was untimely.
Findings Of Fact At all times material hereto, respondent, Coast Line Petroleum, Inc. d/b/a Toms Texaco, held an alcoholic beverage license number 60-04813, series 2- APS for the premises known as Toms Texaco in Lantana, Florida at 401 N. Dixie Highway. Mr. Thomas Przybylski is the President of respondent and appeared on behalf of the licensee. On or around April 4, 1989, petitioner's investigator conducted an investigation of respondent's licensed premises to determine if respondent was selling alcoholic beverages to underaged persons. The investigation was prompted by complaints received by petitioner from the Lantana Police Department. Petitioner's practice in making such investigations was to employ an underaged person and send the underaged person onto the licensed premises to purchase an alcoholic beverage. The underaged person was instructed not to carry any form of identification and to respond truthfully if asked his age or for identification. Julio A. More was employed by petitioner as an Investigative Aide. On April 4, 1989, following petitioner's instructions, Mr. More, who was eighteen at the time and appeared to be no older than his age, entered the licensed premises at issue. It was a busy afternoon at Toms Texaco. Mr. More picked a beer out of the inventory and attempted to purchase it from Mr. Przybylski, who was working that afternoon. Mr. Przybylski asked Mr. More if he had any identification to which Mr. More replied that he had none. Mr. Przybylski then sold Mr. More the beer. Petitioner's investigator witnessed the sale and confiscated the tendered beer. Mr. Przybylski as an employee and officer of respondent sold an alcoholic beverage to an individual who was eighteen at the time of the sale. Accordingly, respondent is guilty of selling an alcoholic beverage to a person under 21 years of age. The proof demonstrated that petitioner has promulgated disciplinary guidelines for offenses similar to the one at issue; and that the appropriate penalty in this case would be the imposition of a fine of $1,000 and twenty-day suspension of the license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on respondent an administrative fine of $1,000 and suspending respondent's license for a period of twenty days. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of September 1989. JANE C. HAYMAN 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 7th day of September 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO.89-3006 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraphs 3 and 4. Addressed in paragraph 4. Irrelevant. Adopted in paragraph 5. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Thomas John Przybylski, Jr. Coast Line Petroleum, Inc. 10670 Cypress Bend Drive Boca Raton, Florida 33498 Lt. Debbie Pfitzenmaier Elisha Newton Dimick Building 111 Georgia Avenue, Room 207 West Palm Beach, Florida 33401 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey Director The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact At all times relevant to the proceedings in this matter, the Respondents held beverage license No. 39-186, Series 2-APS. The license is issued to a drive-through beverage facility called the Beverage Castle located in Brandon, Florida. The Beverage Castle is owned by the Respondents and managed by Mr. Richard Jiosne. On April 29, 1983, Deputies Scoffield and Olsen of the Hillsborough County Sheriff's Department initiated surveillance at the licensed premises because of complaints that their office had received of sales of alcoholic beverages to minors. Deputy Olsen located himself in a wooded area approximately 25 to 30 yards from the licensed premises. Officer Scoffield was in a patrol car approximately 100 yards north of the licensed premises. Officer Olsen observed the licensed premises with a set of field glasses. At some point on the evening of April 29, 1983, the specific time being unknown, two white females in a red and white Mustang drove into the licensed premises and purchased a six-pack of Michelob beer. The driver of the Mustang was Tammy Jo Gibson and her passenger was Charlene Carroll Rogers. Both of these women were 18 years of age at the time of the purchase. Neither of the two women was asked for any identification prior to their purchase of the six- pack of beer. Tammy Jo Gibson did not testify at the formal hearing and the officers could not give a detailed description of her dress and physical appearance. Charlene Rogers testified but could not identify the person who sold the beer to them. The evidence was conflicting as to whether an employee, John Hanks, or the Respondent, Richard Jiosne, actually sold the beer to Ms. Gibson. From the evidence presented, it could not be determined who actually sold the beer to the two women and thus had the responsibility for checking identification. Respondents have a clear policy against selling alcoholic beverages to minors and, prior to this incident, had instructed their employees to check identification of all purchasers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Respondents be found not guilty of the violation charged and that the charge be dismissed. ENTERED this 28th day of December, 1983, at Tallahassee, Florida. MARVIN E. CHAVIS, 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 28th day of December, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard N. Jiosne Anne M. Jiosne 2205 Cornell Drive Brandon, Florida 33511 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Petitioner originally held alcoholic beverage license no. 26-532, Series 4-COP, as an individual. He transferred this license to M & S, Inc., a Florida corporation, about one year ago. Petitioner is a 50 percent shareholder in this corporation. Jimmy G. Maddox holds the other 50 percent stock interest. Petitioner and Maddox are currently engaged in civil litigation involving the corporate licensee. Respondent referred to this civil suit in its notice disapproving the transfer application, citing the pending litigation as a basis for disapproval. Petitioner has not purchased the license from the corporation or entered into any agreement in contemplation of license transfer. Rather, he believes he is entitled to the return of the license because he received no consideration for the prior transfer from either the corporation or Maddox. Alternatively, Petitioner asks that the prior transfer to the corporation be set aside due to this lack of consideration.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a Final Order denying Petitioner's request for transfer of alcoholic beverage license no. 26-532, Series 4-COP. DONE and ENTERED this 6th day of April, 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 6th day of April, 1982. COPIES FURNISHED: James A. Fischette, Esquire Suite 1916 Gulf Life Tower Jacksonville, Florida 32207 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Herbert T. Sussman, Esquire 3030 Independent Life Building Jacksonville, Florida 32202 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Cornelia T Brown, doing business as the Oasis Restaurant Bar and Lounge, is the holder of beverage license No. 45-356, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located on Douglas Road, Groveland, Florida. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has its responsibility the licensure and regulation of beverage license holders in the State of Florida. On June 12, 1980, pursuant to a search warrant, Lake County Sheriff and Groveland Police officials accompanied by Petitioner's Beverage Officer, conducted a search of the licensed premises. Respondent was present throughout the investigation. Among the items seized as suspected controlled substances were seven plastic baggies and eight small manila envelopes containing a total of 52.1 grams of cannabis. Currency in the amount of $2,273,67 was also seized. The cannabis and currency were contained in a purse belonging to Respondent. The purse was discovered in the kitchen of the licensed premises, an area not open to bar/restaurant patrons or other members of the public.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2 and 4. It is further RECOMMENDED that County 3, which duplicates County 2, and Count 5, be DISMISSED. It is further RECOMMENDED that Respondent's License No. 45-356 be REVOKED. DONE AND ENTERED this 30th day of September 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER 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 30th day of September 1981. COPIES FURNISHED: Cornelia T. Brown Route 1, Box 350-7 Groveland, Florida 32736 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
