The Issue Whether Petitioner, Orange Park Billiards and Sports Pub, Inc. (the “Bar”), should be reimbursed by Respondent, Department of Transportation (the “Department” or “DOT”), for costs associated with obtaining a new liquor license incident to its relocation as a displaced tenant pursuant to section 421.55, Florida Statutes (2012).
Findings Of Fact The Bar was a billiards and sports pub located in Clay County, Florida. It was, at all times relevant hereto, located within the Comfort Inn, a hotel situated on US Highway 17 in Clay County. US 17 is called Park Avenue in Clay County, but becomes Roosevelt Boulevard when it crosses into Duval County. The Clay -- Duval county line is just north of the Comfort Inn site. The Bar was formerly owned by Terry Harper, who had purchased “State of Florida Quota Alcoholic Beverage License No. 20-01226, a 3PS series License for use in Clay County, Florida” in June 2009. The Bar was purchased from Harper by Steve Chelgren on or about January 1, 2010. The purchase was made by way of a promissory note, and Chelgren made timely payments on the note for the first couple of years. There is a dog racetrack located next door to the Bar. The racetrack also has a poker room. Pari-mutuel gambling is allowed on the dog races and the poker games. The Bar receives a lot of business from the patrons of the dog track, as much as 25 percent of the Bar’s total business. The Jacksonville Naval Air Station is located adjacent to Roosevelt Boulevard just across the Duval County line. Many Bar patrons are sailors and employees of the Naval Air Station. There are approximately 69,500 cars passing the Bar site each day. The Bar is in a good area for attracting customers. In 2012, the Department acquired the Comfort Inn property as part of a state and federal road project. By way of a letter dated May 8, 2012, the Department notified Chelgren that the Comfort Inn property was being acquired. The letter gave Chelgren “at least 90 days” to relocate his business to another site. Chelgren was also advised about “advisory services and payments under the Relocation Assistance program,” which he may be eligible to receive as a result of the displacement. The program provided money for moving expenses and other services. Chelgren immediately began looking for a place to relocate his business. In order to accommodate the same clientele and continue business as normal, Chelgren first considered the Roadway Inn located just across US 17/Park Avenue from his present location. The Roadway Inn site would be in close proximity to the dog track and the Naval Air Station. Unfortunately, his construction inspection experts told Chelgren that the Roadway Inn had too many problems and would be prohibitively expensive to renovate. Chelgren then began looking elsewhere for a suitable location to relocate the Bar. He did not find a viable option in Clay County, so he began looking in Duval County. Chelgren ultimately settled on a site in Jacksonville Beach, some 30 miles from the Bar’s location in Clay County. The Jacksonville Beach site reportedly had a comparable amount of traffic and was likely to produce customers similar in number to the Comfort Inn site in Clay County.1/ There was one major difference between the two sites: The liquor license purchased by Chelgren in Clay County costs about $59,000; a similar license in Jacksonville Beach would cost about $400,000. The license under which the Bar operated was a 4COP license, which allows for the sale of beer, wine, and liquor and does not require the establishment to sell a certain percentage of non-alcoholic products, i.e., food, clothing, etc. There was no testimony or evidence presented at final hearing as to how a 4COP license differs from the 3PS license held by Chelgren in Clay County (except that the number at the beginning of the license type designates the county in which it is located). It is presumed for purposes of this Recommended Order that the licenses are effectively the same. The City of Jacksonville Beach only allows 12 4COP (or “quota”) licenses within its city limits at any one time. While other cities may increase the number of quota licenses as the population grows, Jacksonville Beach decided to limit the number of licenses without regard to population increases. As a result, the Jacksonville Beach licenses increase in value beyond similar licenses in other locations. At some point after finding the Jacksonville Beach location, Chelgren contacted the Department about obtaining reimbursement for a new liquor license at a replacement location in Jacksonville Beach. The Department, by letter dated November 5, 2012, notified Chelgren that his request was denied. DOT would pay for the “remaining useful life of the existing license,” but nothing more. It cost $1,820 per year to renew the liquor license, so DOT said it would pay the pro rata share of that payment for the time remaining before the next renewal. The Department’s decision to deny Chelgren’s request for payment of the new 4COP license was then appealed. The appeal letter is dated January 3, 2013. By letter dated January 29, 2013, DOT notified Chelgren that his appeal was denied. He was given the right to appeal further by filing a request for formal administrative hearing, which precipitated the instant action. Pending resolution of the challenge to DOT’s decision, Chelgren, nonetheless, decided to make the move to the Jacksonville Beach location and to rename the business, “The Tavern on First Street.” He entered into a purchase and sale agreement dated January 16, 2013, agreeing to purchase a liquor license for the sum of $400,000 with $40,000 down and $1,500 due per month at 5 percent interest. No evidence was presented as to the volume of customers at the new location, as to the automobile traffic volume, or whether the site is indeed comparable to the location of the Bar in Clay County. No evidence was presented as to whether Chelgren sold his Clay County license in an effort to mitigate his damages, or whether such a sale was even possible. Chelgren now operates the Tavern at First Street under a 4COP license purchased for that purpose. He continues to seek reimbursement for the cost of that license. DOT maintains its denial of the request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order affirming its denial of Orange Park Billiards and Sports Pub, Inc.’s application for reimbursement of its cost for a new liquor license. DONE AND ENTERED this 9th day of September, 2013, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 9th day of September, 2013.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by E. Gary Early, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Daytona Beach Cycles, LLC d/b/a Indian Motorcycle of Daytona, be granted a license to sell motorcycles manufactured by Victory (VICO) at 420 North Beach Street, Daytona Beach (Volusia County), Florida 32114, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed March 8, 2012 9:15 AM Division of Administrative Hearings DONE AND ORDERED this Io day of March, 2012, in Tallahassee, Leon County, J “Baker Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motorist Services this Oy day of March, 2012. 2 Pobias Vinegek Nalini Vinayak, Dealer Kicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jc Copies furnished: Andrew Pallemaerts Volusia Motorsports, Inc. 1701 State Road 44 New Smyrna Beach, Florida 32168 Jonathan Brennen Butler, Esquire Akerman Senterfitt 222 Lakeview Avenue, Suite 400 West Palm Beach, Florida 33401 E. Gary Early Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Findings Of Fact Based on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact: On September 10, 1984, the Petitioner received an application for a Series 4-COP, SRX Alcoholic Beverage License from Respondent Club Lido of Gainesville, Inc. On the above date, the Petitioner issued a new temporary Series 4-COP, SRX license to the Respondent pending investigation of the application. The application was submitted signed by Richmond Smith who represented himself as the president, secretary, treasurer, and sole stockholder of Respondent. The application was subsequently approved and the Respondent was issued License Number 11-00786SRX, Series 4-COP on October 1, 1984, to be utilized at a location designated as 233 West University Avenue, Gainesville, Alachua County, Florida. During the year 1985, Division of Alcoholic Beverages and Tobacco Investigator William L. Cooter, Sr., received complaints from various restaurant owners in Alachua County, that Respondent was not operating as a bona fide restaurant, inferring that alcoholic beverage sales at Club Lido exceeded 49 percent of the gross sales. Additionally, Investigator Cooter had visited the premises on numerous occasions and had observed that only small quantities of food items were being served on the premises of Club Lido. In response to the above complaints and on the basis of his personal observations, Investigator Cooter, on September 18, 1985, proceeded to the premises of Respondent and requested a review of the Respondent's food and alcoholic beverage sales. The request for records was made to Richmond Smith, President of Club Lido. On the above date, Smith responded that the records were not on the premises and that Investigator Cooter would be required to subpoena the records if he wished to examine them. Accordingly, Investigator Cooter issued an Official Notice to Richmond Smith on behalf of Club Lido which required production of the sales records by October 4, 1985. The Respondent failed to produce its sales records as of October 4, 1985. The Respondent, as of the date of formal hearing, had still failed to produce its sales records. On November 15, 1985, Investigator Cooter, along with Investigator Donald O'Steen, proceeded to the premises of the Respondent in order to inspect its equipment, supplies, and patron accommodations. The investigators found a minimal quantity of food on the premises. There was not a sufficient amount of food products to serve full course meals to 100 or more patrons on the premises of Respondent on November 15, 1985. There were not adequate seating accommodations to seat and serve full course meals to 100 or more patrons on the premises of Respondent on November 15, 1985, in that only 94 chairs and bar stools were present on the premises. The investigators also noted that there was no employee designated as a "chef" or "cook" on the premises and that approximately two- thirds (2/3) of the silverware needed to serve 100 or more patrons had not been unpackaged. On July 18, 1986, the Respondent terminated active business operations based on the unprofitability of the business. Richmond J. Smith, was a Respondent in Case No. 78- 338, Division of Administrative Hearings, Department of Business Regulation Case No. 3-77-66A, wherein violations of Rule 7A-3.14 and 7A-3.15, Florida Administrative Code, relating to the maintenance of food and beverage records relative to a SRX Alcoholic Beverage License were alleged. The above violations were settled by Stipulation and the licensee paid civil fines relative thereto.
Recommendation Based upon all of the foregoing, it is RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking the Special Restaurant Alcoholic Beverage License of Respondent. DONE AND ENTERED this 19th day of September, 1986, in Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed by the Clerk of the Division of Administrative Hearings this 19th day of September, 1986. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Charles G. Brackins, Esquire Suite B 920 N.W. 8th Avenue Gainesville, Florida 32601 Mr. Richmond Smith Club Lido of Gainesville, Inc. 233 West University Avenue Gainesville, Florida 32601 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Thomas A. Bell, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact The upland property abutting the proposed marina is zoned CTF-28, which provides for the complete range of motel-hotel developments. Type A Marina facilities are permitted as a special exception in a CTF-28 district. The property owned by Petitioners is presently occupied by a 17-room motel (Exhibit 5) and there are 15 available parking spaces. Petitioners propose to remove the seaward 16 feet of the existing 20-year-old dock, extend the remaining portion of this dock from its present length of 62 feet to 112 feet, and construct four finger piers two feet wide by 24 feet long extending seaward from this dock so as to provide seven boat slips. As private slips this would constitute a Class A marina. Petitioners intend to convert the existing motel from sole ownership (husband and wife) to a cooperative association which will enter into long-term leases with proprietary lessees who purchase shares in the association. Specifically, the current owners will transfer title to the property to Tropical Palms Development Corporation, who in turn will transfer the property to The Bel Crest Beach Cabanas & Yacht Club, Inc., who will sell the leases (Exhibits 2 and 3). A copy of the Proprietary Lease proposed for use in this endeavor was not presented to the Board of Adjustment and Appeal on Zoning, nor was the By- Laws of The Bel Crest Beach Cabanas & Yacht Club, Inc. These documents were presented at this hearing as Exhibits 4 and 5. The Proprietary Lease (Exhibit 4) provides the dock is appurtenant to the unit and may not be conveyed, leased or subleased independent of the unit. Slips 1-7 are assigned to Units 7, 8, 9, 10, 11, 16 and 17, respectively (Exhibit 5). Petitioner Leonhardt testified that he would never allow the motel unit to be leased independent of the slip appurtenant to that unit. He also testified that the boat slips got little use from motel occupants. The existing dock, which is 62 feet long, contains berthing space for three or four boats, depending on the size of the boats. No evidence was presented concerning the parking problem, if any, resulting from the existing docking facilities. Respondent's primary concern and the reason this application was denied by the Board of Adjustment and Appeal on Zoning is the effect the proposed marina will have on parking on Clearwater Beach. Vehicular parking is a serious problem confronting Clearwater Beach at this time. Further aggravation of this problem will adversely affect the public interest. A special exception for a seven-slip, Class A marina was granted to the Sea Gull Motel located some 300 feet west of the Bel Crest motel less than one year ago. The Sea Gull converted to cooperative ownership in a plan similar to that proposed by Petitioners. At the Sea Gull hearing for a special exception the parking situation on Clearwater Beach was not raised. Item 40 of the Proprietary Lease (Exhibit 4) contemplates more than one person may be named as lessee and provides joint lessees have only one vote, are jointly and severally liable for lessees' obligations, etc. Nowhere does the Proprietary Lease or By-Laws of the Association specifically preclude one owner- lessee occupying the boat slip while another owner-lessee occupies the motel unit. Once converted to a cooperative, the Bel Crest will continue to operate as a motel run by the resident manager with the units owned by the shareholders in the Association. Currently, all units of the motel are owned by a single owner. The By-Laws and Proprietary Lease do not fully cover the situation regarding the boat slip when the unit appurtenant to that boat slip is rented by the usual overnight motel guest who has no use for a boat slip. The proposed slips present no hazard to navigation or interfere with the enjoyment of the waters adjacent thereto by the boating public.
The Issue The question presented in this cause concerns the necessity that the Petitioner pay an additional $1,000 fee which is purportedly required by the conditions of Subsection 565.02(1)(g), Florida Statutes, if it is determined that the Petitioner has more than three permanent separate locations serving alcoholic beverages for consumption on its licensed premises, Store No. 126. This alleged fee requirement is associated with the Petitioner's application to the Respondent for an "increase in series" of its alcoholic beverage license from a Series 3-PS, which permits "package sales" for off-premises consumption only, to a Series 4-COP, which permits consumption of alcoholic beverages on the licensed premises. The Petitioner claims that the arrangement in the licensed premises does not exceed the limit of three permanent separate locations for serving alcoholic beverages and the Respondent claims that there are four permanent separate locations for serving alcoholic beverages for consumption on the licensed premises, thereby exceeding by one the allowable limit and causing the imposition of the $1,000 additional license tax set forth in Subsection 565.02(1)(g), Florida Statutes.
Findings Of Fact On March 24, 1977, the Petitioner, ABC Liquors, Inc., made an application with the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, for an "increase in series" of its alcoholic beverage license for Store No. 126, located at 3427 Southwest Archer Road, Gainesville, Alachua County, Florida. The increase requested was a change from a Series 3-PS license, which permitted "package sales" for off-premises consumption only, to a new Series 4-COP license, which permits consumption of alcoholic beverages on the licensed premises. For reference purposes, a copy of the front sheet of the application is attached to this Recommended Order and incorporated by reference as Attachment "A". In compliance with the procedures of the Respondent, T. L. Ewing, the Respondent's employee, drew a sketch of the premises on the reverse side of the application referred to in Attachment "A", and a copy of that sketch is attached to this Recommended Order and incorporated by reference as Attachment "B". That sketch is an accurate representation of the interior floor plan of the licensed premises. The floor plan is further depicted in the Petitioner's Composite Exhibit 5, specifically 5E, which is a sketch of the "as-built" plans of the portion of the licensed premises which is the subject of this dispute. This Exhibit 5E, which was admitted into evidence, depicts the deployment of the bar area which is utilized under the terms of a Series 4-COP license applied for. Additionally, Petitioner's Exhibit 1 is a photographic depiction of the type bar arrangements and accessways between certain portions of the bar arrangement; however, this photograph is taken of a similar lounge area and is not the actual area in question. This depicts another one of the Petitioner's lounges, located in a separate licensed premises. As described in the issue statement of this Recommended Order, the controversy presented for consideration involves a characterization of the bar areas shown in Attachment "B" and Petitioner's Exhibit 5E on the question of whether there are more than three permanent separate locations for serving alcoholic beverages for consumption on the licensed premises. The significance of having more than three permanent separate locations for serving alcoholic beverages for consumption on the licensed premises is revealed by a reading of Subsection 565.02(1)(g), Florida Statutes, which states: 565.02 License fees; vendors; clubs; caterers and others.-- (g) Vendors operating places of business where consumption on the premises is permitted and which have ,more than three permanent separate locations serving alcoholic beverages for consumption on the licensed premises shall pay in addition to the license tax imposed in paragraphs (b), (c), (d), (e), and (f), $1,000. However, such permanent separate locations shall not include service bars not accessible to the public or portable or temporary bars being used for a single occasion or event. Golf club license holders may operate service bars or portable or temporary bars on the grounds contiguous to their licensed premises and shall pay $100 for a certified copy of the club license, which shall be posted on the bar. The area contiguous to the licensed premises shall be considered an extension of the licensed premises upon payment of the fee, posting of the certified copy of the license, and notation of such extension upon the sketch accompanying the original license application. In reviewing the license application for "increase in series", the Respondent has taken the position that there are within the room which constitutes the lounge area, four separate locations and those four locations are made up of the rotating bar, and the perimeter bar areas which show three sections broken up by the east and west ramps separating those portions of the perimeter bar area. It is the contention of the Respondent that the word "location" is equivalent to the bar areas shown in the lounge room and, counting the rotating bar and the three separate perimeter sections, there would be four locations. Consequently, under the Respondent's theory, the Petitioner is required to pay an additional license tax in the amount of $1,000 for the extra location in excess of the allowable three locations. The Petitioner asserts that the meaning of the word "location" as found in the subsection calls for more definitive separation than is found between the sections of the perimeter bar operation and that the design of the perimeter bar which allows for entrance and exit ramps through the center of the horseshoe shaped device which is the perimeter bar area, does not create the type definition contemplated by the law. To the Petitioner, separate rooms would be more in keeping with the legislative intent in drafting the requirement in Subsection 565.02(1)(g), Florida Statutes. Moreover, the Petitioner argues that the rampways which divide the perimeter bar into three sections were installed primarily for the purposes of safety and convenience and those efforts to allow for safety and convenience should not be used to unfair advantage by the Respondent in claiming that there are four locations as opposed to a maximum of two locations; those two locations being constituted of the rotating bar and a perimeter bar. The Petitioner claims that certain local ordinances require that exits be available within a specified number of feet of the position a patron might be found in during the course of an emergency and the Petitioner alludes to the fact that the rampways aid in the evacuation through the exits. The Petitioner did not demonstrate that the removal of the passageways would cause a violation of the ordinances dealing with emergency exit accessibility. Petitioner also states, and the facts reveal, that within the room proper there are six serving stations in the perimeter bar area, constituted of case registers, soda heads, sinks and other necessary structures to the service of patrons. These soda heads, waterlines, and drainage systems have common origins or terminus. Other relevant facts presented in the case include the facts that the bar structure in terms of the shell of the various positions within the lounge area, are permanent installations, although the soda heads for mixed drinks may be moved around within the shell. There are swinging doors on the northern and southern fingers of the various sections of the perimeter bar area. The rampway is unobstructed unless one of those swinging doors is opened when a person is attempting to use the rampways. The dimensions and measurements within the lounge may be discerned by an examination of the other aspects of the Petitioner's Composite Exhibit 5, with the caveat that these design sheets must be considered in view of the "as-built" sketch found in Petitioner's Exhibit 5E. This statement is made because there were design changes made from the original proposal which relocated the dance floor in the lounge area and made other changes which may be seen in this review.
Recommendation It is recommended that the Petitioner, ABC Liquors, Inc., be required to pay an additional license tax of $1,000 in all applicable periods for its place of business located at 3427 Southwest Archer Road, Gainesville, Alachua County, Florida. DONE AND ENTERED this 3rd day of October, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold F.X. Purnell, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James E. Foster, Esq. 170 East Washington Street Orlando, Florida 32801 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact At all times material hereto, Respondent, Quinto Patio Bar, Inc., d/b/a Quinto Patio Bar, held alcoholic beverage license number 23-02231, series 2-COP, for the premises known as Quinto Patio Bar, 1552 West Flagler Street, Miami, Dade County, Florida. In August 1987, a joint task force was formed consisting of police officers from Metropolitan Dade County and the City of Miami, as well as investigators of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT) , to investigate narcotics complaints against numerous business establishments in Dade County. Among the businesses targeted was the licensed premises at issue in this case. On August 27, 1987, DABT Investigator Oscar Huguet and City of Miami Investigator Pedro Pidermann, operating undercover, entered the licensed premises in furtherance of the aforesaid investigation. Accompanying Investigators Huguet and Pidermann was a confidential informant (CI), who would accompany them on subsequent visits. During the course of this visit, and three other visits that predated September 5, 1987, the investigators familiarized themselves with the licensed premises, and became acquainted with the employees and patrons of the bar. On September 5, 1987, Investigators Huguet and Pidermann, in the company of the CI, returned to the licensed premises. Upon entering the premises, the investigators proceeded to play a game of pool and directed the CI to see if any drugs were available in the bar. The CI walked to the bar, spoke with employee Maria, and accompanied her back to the pool table. At that time, Maria offered to sell the investigators a gram of cocaine for $50. Investigator Pidermann handed Maria a $50 bill, Maria removed a clear plastic packet of cocaine from her pants' pocket and handed it to the CI, and the CI handed it to Investigator Huguet. Huguet held the packet up to the light at eye level, and then commented that it "looks like good stuff." This transaction took place in plain view, and in the presence of several patrons. On September 16, 1987, Investigator Huguet and the CI returned to the licensed premises and seated themselves at the bar. Huguet struck up a conversation with the barmaid Maria, and asked whether she had any cocaine for sale. Maria responded that the individual (later identified as Bandera) who brings in the "stuff" had not come in yet, but to come back the next day. Huguet told Maria he would return the next day and to reserve two grams for him. On September 17, 1987, Investigator Huguet and the CI returned to the licensed premises to make the purchase of cocaine arranged the previous day. Upon entry, Maria told Huguet that the man (Bandera) who sold the cocaine had just left through the front door. Huguet gave the CI $100, and told him to follow the individual and make the purchase. These conversations occurred in the presence of Yolanda, another employee of the licensed premises. After the purchase from Bandera, the CI returned to the bar and handed Investigator Huguet 4 clear plastic bags of cocaine. Huguet examined the bags at eye level and in the presence of Maria, and placed them in his shirt pocket. On September 18, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises and began playing pool. A short time later Bandera entered the bar and, upon being motioned over by the CI, approached the investigators. Upon greeting Bandera, Huguet asked him how much cocaine $100 would buy. Bandera replied "two grams", whereupon Huguet borrowed $50 from Pidermann to which he added $50 from his pocket, and tried to hand it to Bandera. Bandera, who had not previously met the investigators, told him no, to meet him in the restroom. Huguet met Bandera in the restroom, and purchased two grams of cocaine for $100. Upon exiting the restroom, Huguet observed Maria looking at him, held up the two clear plastic bags of cocaine, and mouthed the words "thank you" to her. On September 24, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises. During the course of this visit, Bandera was observed seated at the bar conversing with Maria. Pidermann and the CI approached Bandera, and asked whether he had any cocaine for sale. Bandera responded yes, and invited Investigator Pidermann to the restroom to consummate the transaction. Pidermann met Bandera in the restroom and purchased two grams of cocaine for $100. Upon exiting the restroom, Investigator Pidermann displayed the cocaine to Investigator Huguet and the CI above the bar. This display occurred in plain view and in the presence of several patrons. On September 25, 1987, Investigators Huguet and Pidermann, together with the CI, returned to the licensed premises and proceeded to play pool. A short time later, Bandera entered the bar, approached the pool table, and placed two clear bags of cocaine on top of the pool table in front of Investigator Huguet. Huguet asked Bandera how much the cocaine would cost and he stated $100. Huguet gave Bandera the money, picked up the packets and held them at eye level for examination. This transaction took place in plain view, in the presence of numerous patrons, and was observed by employee Asucercion. On October 2, 1987, Investigators Huguet and Pidermann returned to the licensed premise. During the course of this visit, Huguet engaged Maria in general conversation and inquired as to the whereabouts of Bandera. Maria advised Huguet that Bandera was probably at the Yambo Bar, and that if he wanted cocaine to see him there. Investigator Huguet left the licensed premises and went to the Yambo Bar, located approximately one block away. There he met with Bandera and told him that he wanted to purchase cocaine but that Pidermann had the money at the Quinto Patio Bar. Bandera told Huguet he would meet him out back of the licensed premises. Huguet returned to the Quinto Patio Bar and spoke with Investigator Pidermann in the presence of employee Asucercion. Huguet told Pidermann that for $100 Bandera would supply the cocaine. Pidermann gave Huguet the money, and Huguet went out back to purchase the cocaine from Bandera. After the purchase from Bandera, Investigator Huguet returned to the bar and placed two clear plastic bags of cocaine on the bar counter in front of Investigator Pidermann and Asucercion. Pidermann picked up the cocaine, examined it, and placed it in his pocket. On October 3, 1987, Investigators Huguet and Pidermann returned to the licensed premises and seated themselves at the bar. While the investigators were being served by Maria and an unidentified barmaid, Huguet inquired as to the whereabouts of Bandera. Maria replied that he was probably at the Yambo selling cocaine. Investigator Huguet left the licensed premises, met Bandera at the Yambo Bar, and arranged the same drug deal they had made the previous day. Huguet returned to the Quinto Patio Bar and spoke with Investigator Pidermann in the presence of Maria. Huguet again told Pidermann that for $100 Bandera would supply the cocaine. Pidermann gave Huguet the money, and Huguet went out back to purchase the cocaine from Bandera. After the purchase from Bandera, Investigator Huguet returned to the bar and seated himself next to Pidermann. In front of Maria and the unidentified bar maid, Huguet wrapped the two clear plastic bags of cocaine in a napkin and handed them to Pidermann. All of the events summarized in the preceding paragraphs took place at the licensed premises during normal business hours. At no time did respondent's employees express concern about any of the drug transactions. In fact, the proof demonstrates that the employees knew that cocaine was being sold, delivered, or possessed on the licensed premises on a regular, frequent, and flagrant basis. Ms. Dominga Lora (Lora), is the sole corporate officer of the licensee and owner of 100 percent of its stock. According to her, she is generally always on the licensed premises, and usually is seated at a small table by the pool table. Notwithstanding the fact that the lighting within the premises is good, Lora averred that she had no knowledge of any drug transactions on the premises and, in fact, doubted that any did occur. Lora's testimony is not credible. The proof is clear and convincing that the drug transactions previously discussed did occur on the licensed premises, and that they occurred in an open manner visible to patrons and employees alike. If reasonably diligent, Lora had to observe that drug transactions were occurring on the licensed premises but failed to make any reasonable effort to prevent them. Under the circumstances, it is concluded that Lora knew such sales occurred or negligently overlooked them.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order revoking alcoholic beverage license number 23-02231, series 2-COP, issued to Quinto Patio Bar, Inc., d/b/a Quinto Patio Bar, for the premises located at 1552 West Flagler Street, Miami, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of May, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1988. COPIES FURNISHED: Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Rene Valdes 1830 N.W. 7th Street Miami, Florida 33125 Daniel Bosanko, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether or not on or about August 23, 1975, Carole Sanders, licensed under the beverage laws as a licensed vendor, did employ, on her licensed premises persons under the age of 18. to wit: Margie Johnson, W/F, DOB: 11/12/60, age 14, address: Homosassa, Florida, and Mrs. Fawn Hetland, DOB: 5/22/59, age 16, address: Sindpiper Motel, Room #38, Clearwater, Florida, contraty to Florida Statute 562.13. Whether or not on or about August 23,1975, Carole Sanders, licensee, her agent, servant, or employee, did allow procuring for the purpose of prostitution on her licensed premises, contrary to Florida Statutes 796.07(3)(A) and 561.29. Whether or not on or about August 23, 1975, Carole Sanders, licensee, or her servant, employee or an agent, did allow a person under the age of 18 to consume alcoholic beverages on her licensed premises, to wit: Margie Faye Johnson, W/F, DOB: 11/12/60, contrary to Florida Statue 562.11.
Findings Of Fact The Petitioner began its presentation by offering into evidence a copy of the amended notice to show cause, together with the notice of hearing, which became Petitioners Exhibit #1 which was admitted without objection. The Petitioner also presented a copy of the license of the Respondent, which was allowed into evidence without objection, as Petitioner's Exhibit #2. Petitioner then called Margie Faye Johnson to the stand. Miss Johnson testified that she was 15 years old as of November 12, 1975. She now lives with her mother at Homasassa, Florida, but in August, 1975, she was a runaway. While away from home, the witness went to the establishment of the Respondent, to wit, Charlie's Beach Bar and applied for a job as a topless dancer. At that time the witness was 14 years old. She had been told about this job by one Fawn Hetland, an acquaintance she had met two weeks prior to applying for the job. The job application was made sometime in August, 1975, three or four days prior to certain arrest warrants were served on Charlie Sanders, the husband of the Respondent. These warrants were served on or about August 23, 1975. The process of the hiring of Margie Johnson was described by her in the following fashion She said she asked Charlie Sanders about being a dancer in his bar and that he interviewed her and asked her to dance, after which she was hired as a topless dancer in the bar. During the course of the hiring procedures the witness testified that she was never asked for an identification card of any kind. She did say that she signed a writing presented to her by Carole Sanders, which was something to do with taxes. This writing spoken of was admitted as Petitioner's Exhibit #3, without objection. According to the witness, Charlie Sanders was responsible for hiring her as opposed to the Respondent, Carole Sanders. The night the witness was hired, in addition to neglecting to ask for an identification card, for some identification of her age, the witness indicated that she never saw anyone call for references concerning her age. She felt that she would have observed such a call because the phone was near the area in which she was located. During the course of her employment for the three or four days, Margie Johnson indicated that she danced topless, served alcoholic beverages, and consumed alcoholic beverages, and also worked the cash register. On the night that the arrest was made of Charlie Sanders, which would have been August 23, 1975, the witness was found in possession of a mug of beer. The mug itself is Petitioner's Exhibit #6 which was admitted without objection, after a stipulation had been entered into concerning the chain of custody of the beer mug and a stipulation that the mug contained an alcoholic substance, to wit, beer. Margie Johnson was arrested, by her statement, for drinking on the premises and being in an adult bar. Other activities concerning Margie Johnson while she was working for the Respondent, included a request by Charlie Sanders that she prostitute herself for an older man, whom she said was in the conversation, but whose name she does not know. The witness indicated that Charlie Sanders actively participated in this procurement situation by asking her if she had done any prostituting and asking her if she would like for him to set her up. The witness also indicated that Charlie Sanders propositioned her to go to bed with him, evidently for purposes of having sexual relations. To the witness's knowledge, Mrs. Sanders was not involved in any procurement for prostitution. Margie Johnson had also worked at two other topless lounges in the area to include the Savoy Lounge and the Stock Market. While working at the Savoy Lounge she said she had shown a birth certificate which had been given to her by some "chick and a guy" who picked her up. This birth certificate indicated that she was 22 years old. She had been requested to show proof of age at the Savoy Lounge and had shown the phony birth certificate, but she said she never showed any identification of age at the Stock Market. The Stock Market proprietors had asked her for proof of age but she had indicated that she would bring that proof in and never did. While at Charlie's Beach Bar, the witness stated that she never was questioned about her age. An effort was made to develop the fact that the witness worked in bars other than the bars spoken of, this was objected to and the objection was sustained because it was not felt that further development of the issue was material or relevant. Finally, the witness indicated that Charlie Sanders had told her the night they were arrested, that if she was not 18 years old that he was going to kill her. At present the witness is not in immediate contact with the Respondent or any employees at-Charlie's Beach Bar. John T. McMullen, agent for the Division of Beverage, testified that he assisted in serving a warrant issued to the Indian Rocks Police Department for August 23, 1975. This warrant was served around midnight on that date and when the witness entered Charlie's Beach Bar with the warrant party he noticed that Margie Johnson was sitting with a beer mug in her hand and that mug contained beer. This beer mug has been identified as Petitioner's Exhibit #6. When Officer McMullen approached Margie Johnson, because he felt she was under age, she stated that she was 18 and had been born in 1953. Later she admitted that she was a juvenile. Officer McMullen later returned to the bar around 1:15 A.M. on August 24, 1975, and picked up certain records from the Respondent, Mrs. Sanders. Part of these records have been admitted into evidence as Petitioner's Exhibit #5, admitted with objection. The witness testified that Mrs. Sanders told him that she had hired Margie Johnson because she knew the girl Fawn Hetland and because Margie Johnson had indicated that she was 18 years old and had worked at the Stock Market Bar. Consequently, according to Mrs. Sanders, she presumed these things to be so. Officer McMullen went back to the bar on a third occasion around 12:45 P.M. on September 3, 1975 at which time a citation for beverage violations was served upon the Respondent. At that time the witness stated that he read the citation to Carole Sanders and she told him she couldn't go and not plead guilty to the citation, because she had hired Margie Johnson and that her husband had hired Fawn Hetland and that they knew the girls were minors. Beverage Agent Woodrow Ray took the stand and testified essentially the same way as Officer McMullen, about the facts surrounding the service of the warrant on August 23, 1975, at Charlie's Beach Bar. Officer Ray also went back to get records In the early morning hours of August 24, 1975. He indicated the receipt of Petitioner's Exhibit #5 from Carole Sanders and stated that he had given her a receipt in return which is admitted into evidence as Petitioner's Exhibit #4, without objection. *A more complete description of the objection to the introduction of Exhibit #5 will be discussed in the section of this order entitled CONCLUSIONS OF LAW. Officer H. C. Adams of the Indian Rocks Police Department, testified that he was involved in serving the warrant on Charlie Sanders at Charlie's Beach Bar on August 23, 1975. He had seen Margie Johnson drinking the beer which was in Petitioners Exhibit #6, and had removed the beer mug and contents from Margie Johnson. The Petitioner called Jack Lewzader to the stand. Before Mr. Lewzader testified, the Petitioner offered to amend count 2 of the amended information by changing the date of August 23, 1975, as reflected, to the date of August 16, 1975. The Respondent was offered the right of a continuance since there had been a change in count 2; however, the Respondent indicated that he was sufficiently prepared to defend the charges reflected in count 2 and the testimony of Jack Lewzader was taken. Mr. Lewzader said that he was a customer in Charlie's Beach Bar and that on one occasion he had taken home one Fawn Doyle* and on the way home Fawn Doyle had offered to sell herself for $10.00 and as the car stopped, Fawn Doyle grabbed the $10.00 from his hand and jumped out of the car. He stated that he went back to Charlie's Beach Bar and confronted Charlie Sanders later that same day, with the details of his problem with Fawn Doyle. Lewzader said that Charlie Sanders told him that he would have to talk with her. Charlie Sanders then introduced Lewzader to a Mike and a Linda who were in Charlie's Beach Bar. A conversation then ensued, in which it was indicated through Charlie Sanders, that he might help make the matter with Fawn Doyle right by the introduction of Mike and Linda. Linda and Mike stated that Linda would sell herself for $25.00 for the first hour, $50.00 for the second hour and $75.00 for all night and that they would deduct the $10.00 that had been taken by Fawn Doyle. This conversation with Linda and Mike took place on the premises of the Respondent, to wit, Charlie's Beach Bar. On cross-examination, Mr. Lewzader indicated that he had gone to the Indian Rocks Police Station to complain, after the $10.00 had been taken by Fawn Hetland. Then he went to speak to Charlie Sanders and met Mike and Linda, and later returned back to the police station to file a complaint. Respondent's Exhibit #1 was introduced through the witness, Lewzader. This item of evidence was the affidavit of complaint by Jack Lewzader. It was admitted without objection. As Respondent's Exhibit #1 reflects, the discussion Mr. Lewzader had at the police station was with one Officer Marvin Padgett. The witness indicated that Respondent's Exhibit #1 accurately reflects the details of his complaint. Respondent presented testimony in the course of the hearing, and the first witness was Diane Poole. Diane Poole is 23 years old and is a topless dancer at Charlie's Beach Bar at this time and has been so employed for two months. She testified that she applied for a job at Charlie's Beach Bar while down there having a glass of wine. She indicated that while having the wine she was carded by the bartender who was a lady; however, she auditioned before showing any identification card. The process of her hiring included Charlie Sanders asking where she had worked before and dancing to three songs, discussing certain written rules, discussing how old she was and signing a certain paper on income tax. She said that she has never been asked about being a prostitute. The witness has been a dancer for about 3-1/2 years and had started in Phoenix, Arizona. She has also held jobs as a model and as a secretary. *Fawn Doyle and Fawn Hetland was believed to be one and the same person to the knowledge of the witness. Marvin Padget took the stand, after being called by the Respondent. He testified that he knows Charlie Sanders and Carole Sanders. He further testified that he knows Jack Lewzader as being a complainant who came to him about alleged acts of prostitution by Fawn Hetland. In the discussion of his complaint about Fawn Hetland, the witness said he advised Lewzader of his rights and told him that he would not prosecute him for his involvement with the minor, Fawn Hetland. The witness further stated that he asked Lewzader if he was a regular patron of Charlie's Beach Bar and told him to keep his eyes and ears open. If he heard about anything else, such as prostitution, going on in the bar, he instructed Lewzader to report any matters of impropriety to him concerning prostitution in Charlie's Beach Bar. He also asked Lewzader if he had heard of other incidents such as the one with Fawn Hetland. He did not mention the names of any persons he wanted observed in Charlie's Beach Bar. Later, according to the witness, Jack Lewzader completed the complaint which is Respondent's Exhibit #1. Carole Sanders took the stand in her own behalf. She testified that Margie Johnson came into Charlie's Beach Bar and that she auditioned to be a dancer. According to Carole Sanders, Margie Johnson was asked for an identification and she told her she had lost her purse and that she would bring in some identification at a later time. She said she told Margie Johnson about their rules, which were not in the form of writing at that time, and also explained to her about the matters concerning income tax. The witness seemed to indicate that the actual hiring of Margie was at a later time, although she and her husband had agreed to hire Margie Johnson on the same date of the audition. According to the witness, it was her understanding that Margie Johnson would have an identification to show at the time she was actually employed. She doesn't know if any identification was ever shown by Margie Johnson to indicate her age. The witness said, to her knowledge, there is no prostitution in Charlie's Beach Bar and has not been since she became the proprietor, even though there have been 30 or 40 girls hired by the bar in that time period. According to the witness, Fawn Hetland was hired by Charlie Sanders. Margie Johnson, as indicated by the witness, was interviewed and eventually went to work the first day, effective the night that her bar was raided. The witness indicated that she never told anyone she was guilty of hiring minors. Nevertheless, she indicated that she knows she should have made sure on the age of her employees and was remiss in the instance of Fawn Hetland and Margie Johnson. She further stated that she is more careful now about the matter of identification for prospective employees. Charlie Sanders took the stand in behalf of the Respondent. Charlie Sanders, as stated before, is the husband of the Respondent. Describing the hiring of Fawn Hetland, he said he asked for a proof of age and she produced an employment card for Orange County. The witness said he was bothered by that somewhat and asked for further proof of age and Fawn Hetland promised proof later on. He testified that he knew she was married and had a child and for that reason seemed to be satisfied to accept better proof of age at a later time. To the witness's way of thinking, the reason better proof of age was never forth coming was because Fawn Hetland's husband had most of her identification and refused to give it to her. He also stated he had phoned an establishment called the House to see if she had danced there before and was told yes. In discussing Margie Johnson, the witness indicated that he had hired her over a four day period but that she had only worked one day. He said he asked Margie Johnson where she had worked before and she indicated the Savoy Lounge. His wife was there when Margie Johnson was hired. He said he wasn't shown any identification at the time of hiring but Fawn Hetland said that she was alright and he also called the Savoy Lounge, after which he was satisfied at that time. The witness then said that on the second or third night that she had worked she showed him a birth certificate that indicated that she was born in 1953, to which he simply replied, "is this yours?" and then told Margie Johnson to get to work. He said he told his wife that he had seen Margie Johnson's identification. To the witness, Margie Johnson, in August, 1975, looked 22 years of age as the phony birth certificate indicated. In discussing the Lewzader matter, the witness said that Lewzader came into the bar and wanted to talk to him about Fawn Hetland. He said that Lewzader told him that Fawn Hetland wanted some money for baby food and that he was going to give her $10.00 and she "ripped" the $10.00 off him, and that Lewzader simply wanted him to know what kind of person Fawn Hetland was. He confronted Fawn Hetland with the matter and Fawn Hetland said that Lewzader was trying to have sex with her. Before he could resolve the difference between Jack Lewzader and Fawn Hetland, he had to leave the bar and to his knowledge that was the end of the situation. The witness indicated that he had found out about the complaint before the time of his arrest by the Indian Rocks Beach Police Department, for prostitution type charges. He said that Lewzader was in his bar and he confronted Lewzader with the fact of Lewzader's claim in the affidavit, and Lewzader told him they simply had made it up, meaning the police. He said that Lewzader told him that he would never have come back into the bar to face him had he made the charges that the police claim. As an aside, the witness indicated that there had been a Linda working there at one time but that her fiance had not liked it and she had quit the job. He said that Linda continued to come in there, perhaps, but that he did not think Linda was in there at the time Jack Lewzader came to discuss the matter of Fawn Hetland. Attention is drawn to Petitioner's Exhibit #5 which is records turned over to the police by Carole Sanders, Respondent. These records seem to indicate that Margie Johnson was working there for more than one night. Moreover, these records seem to indicate that a person named Linda was working there at the same time that Marge (Margie Johnson) was. From the discussion of the employment of Margie Johnson, both from the standpoint of Margie Johnson, Carole Sanders, and Charlie Sanders, it appears that Margie Johnson was employed on the licensed premises of the Respondent when she was under the age of 18. Furthermore, the description of the technique involved by Carole Sanders and Charlie Sanders in trying to ascertain the age of Margie Johnson does not demonstrate due diligence on the part of the Respondent in hiring Margie Johnson. This conclusion assumes the validity of the story of any one of the three witnesses, to wit, Margie Johnson, Carole Sanders, or Charlie Sanders. It is noted that there is a major inconsistency concerning the date at which Margie Johnson was formally employed by the Respondent, when considering the version of Carole Sanders and Charlie Sanders, and consequently Margie Johnson is more creditable. In examining the application of count 1, to Fawn Hetland, one must look to the statements of Charlie Sanders. Assuming that what Charlie Sanders has said is exactly true, it would appear that Charlie Sanders as the agent or employee of Carole Sanders did not use due diligence in hiring Fawn Hetland. This is further established in view of the fact that a prima facie case has been established that Fawn Hetland was under the age of 18 when she was hired, as set forth by testimony offered by officer McMullen in discussing Carole Sanders admission. Although the nature of the acts of Jack Lewzader in involving himself with a minor for purposes of promoting prostitution on the part of Fawn Hetland and then in returning to Charlie's Beach Bar and engaging in the discussion of further prostitution with a subject whose name is Linda, would make his testimony somewhat suspect, it would still seem strong enough to support the charges in count 2. The testimony of Jack Lewzader must be contrasted with the interest on the part of Charlie Sanders in protecting the license, and must be considered in view of the fact, that there was a Linda working there at some time and who was apparently working there at the same time as Margie Johnson. Furthermore, Margie Johnson testified that she had seen Fawn Hetland discuss the price of $25.00 for purposes of prostitution, and leave with the man she was having that conversation with and not return until the next day. Finally in discussing count 3 of the charges, it is well established that Margie Faye Johnson was consuming an alcoholic beverage, to wit, beer on August 23, 1975, when the investigators arrived on the premises to serve the warrant. It has also been established that due diligence had not been followed in ascertaining the age of Margie Johnson before allowing her to consume that alcoholic beverage on the licensed premises, for reasons set forth in the discussion of count l.
Recommendation For committing the violation alleged in count 1 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage revoke the license of the Respondent. For committing the violation alleged in count 2 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage assess a civil penalty in the amount of $500.00. For committing the violation alleged in count 3 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage revoke the license of the Respondent. DONE and ENTERED this 2nd day of March, 1976, in Tallahassee, Florida. CHARLES C ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304 Robert K. Hayden, Esquire 932 South Myrtle Avenue Clearwater, Florida 33516 =================================================================
The Issue Whether the Respondent failed to have the seating capacity required of a licensee in its category as alleged by the Notice to Show Cause and, if so, what disciplinary action should be taken.
Findings Of Fact At all times pertinent hereto, Respondent, EDM of Key West, Inc., d/b/a/ Portside, was the holder of a special restaurant license issued by Petitioner, Division of Alcoholic Beverages and Tobacco, Department of Business Regulation. This license, Series 6-COP, Number 54-00999SRX, authorizes Respondent to sell alcoholic beverages, subject to regulation by Petitioner and other authorities, in conjunction with its restaurant business. On November 16, 1988, Petitioner's law enforcement investigator, David Myers, inspected Respondent's premises to determine whether Respondent was in compliance with the regulations applicable to licensees such as Respondent. Two violations were discovered. The first was that the establishment failed to have sufficient seating for patrons under the covered portion of the premises. The second was that the establishment failed to keep adequate records of its sales of food and of its sales of alcohol as required by regulation. Official Notices were issued by Petitioner to Respondent for both violations. Investigator Myers told Respondent's dining room manager on November 16, 1988, that the establishment was required to have seating sufficient for at least 150 dining patrons under a permanent roof and that the seats located outside the roofed area could not be counted toward that requirement. This advice is consistent with Petitioner's interpretation of Rule 7A-3.014, Florida Administrative Code. Prior to December 12, 1988, Investigator Myers advised the management of Respondent that he intended to make a follow-up inspection on December 12, 1988. On December 12, 1988, there were 132 seats for dining patrons within the roofed area. Other seats for dining patrons were located in an uncovered area. Petitioner filed a Notice to Show Cause subsequent to its inspection of December 12, 1988, against Respondent alleging, in pertinent part, the following: On December 12, 1988, you, EDM OF KEY WEST INC., failed to have accommodations for service of 150 patrons at tables on your licensed premises . . . . The Notice to Show Cause did not cite Respondent for failure to keep adequate records of sales. On May 22, 1989, an inspection revealed that there was seating for only 118 dining patrons under the roofed area. On June 5, 1989, Respondent was found to be in compliance with the seating requirement. Respondent filed a timely request for hearing and therein denied the factual allegations of the charge brought against it.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having failed to have accommodations for the seating of 150 dining patrons as required by Section 561.20(2)(a)4, Florida Statutes, and by Rule 7A-3.014 and Rule 7A-3.015, Florida Administrative Code, and which imposes an administrative fine of $500.00 against Respondent. DONE and ENTERED this 21st day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 July, 1989. APPENDIX The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000 James T. Hendrick, Esquire MORGAN & HENDRICK, P.A. Post Office Box 1117 Key West, Florida 33041 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issues in these cases are whether Respondent is guilty of serving alcoholic beverages to minors and, if so, what penalty is appropriate.
Findings Of Fact Respondent holds license number 58-01997, series 2-COP, for the retail sale of alcoholic beverages. The licensed premises were located at 536 West Church Street, Orlando, Florida. Respondent abandoned the premises at the end of August, 1989. The bar owned and operated by Respondent is no longer in operation, and the license is no longer active. On at least three occasions prior to the incident in question, one or more representatives of Petitioner had warned Lester Thomas, the sole shareholder and officer of Respondent, that he or his company's employees were serving alcoholic beverages to underage persons. On one of these occasions, Mr. Thomas complained, "Every time you come around here, there are problems. You catch me." At about 11:15 p.m. on August 5, 1989, two representatives of Petitioner entered the Negril Cove bar and observed Mary Ann Carmody, age 16 years, consuming an alcoholic beverage that a companion had purchased from Respondent. At all material times on that evening, Mr. Thomas himself was tending the bar at Negril Cove. At no time was Ms. Carmody asked for any identification. Under the circumstances, Mr. Thomas permitted Ms. Carmody to consume the alcoholic beverage on the premises.
Recommendation Based on the foregoing, it is hereby recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking the license of Respondent. RECOMMENDED this 23rd day of April, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1990. COPIES FURNISHED: Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Thomas A. Klein Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Jerry S. Luxenburg 1214 East Robinson Street Orlando, FL 32801
