The Issue The issue is whether Respondent's alcoholic beverage license should be disciplined on the ground Respondent allegedly violated Section 561.20(2)(a)4., Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, David Carl Boston, operated a restaurant and lounge under the name of Mr. D's Restaurant and Lounge at 2262 Orchard Street, Jacksonville, Florida. Respondent has been issued special restaurant license number 26-0701, series 4COP SRX, by Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent began operating his restaurant and lounge in February 1996, but ceased doing business in July 1997. Respondent's license authorizes him to sell alcoholic beverages on the premises, so long as the restaurant has at least 2,500 square feet of service area, it can seat at least 150 patrons at tables, and at least 51 percent of the gross revenue is derived from the sale of non-alcoholic beverages and food. Respondent was aware of this requirement when he applied for a license. Indeed, item 10 on his application specifically noted these special requirements. Accordingly, Respondent knew, or should have known, that he would need adequate records to show that these requirements were being met. To enforce the above requirements, the Division performs periodic audits of all restaurants holding special licenses. As a part of that audit process, on February 3, 1997, special agent Myers contacted Respondent and requested that he "[p]roduce within 14 days all records including but not limited to all sales receipts, register tapes, invoices for food, alcoholic bev. & non-alcoholic bev., employee time records, all purchase and sales receipts, as required per Florida law." The records were to cover the twelve-month period from February 1996 through January 1997. Respondent acknowledged receiving the Notice to produce the records on February 3, 1997, by signing the Notice in agent Myers' office. Within a few days, Respondent produced a large plastic shopping bag full of records, which has been received in evidence as Petitioner's Exhibit 3. The bag includes receipts for alcoholic beverage purchases and other miscellaneous items, but virtually no receipts for food purchases. There are also so- called "summary sheets," which are handwritten summaries of receipts for food and alcoholic beverage sales for most of the months during the audit period, and cash register tapes which ostensibly support the entries on the summaries. The records are poorly organized and unsophisticated, and they are very difficult for a third person to analyze. Thus, they fail to comport with Division Rule 61A-3.0141(3)1., Florida Administrative Code, which requires that a licensee must "maintain separate records of all purchases and gross retail sales of food and non-alcoholic beverages and all purchases and gross retail sales of alcoholic beverages." Because of the lack of receipts for food purchases, the Division could not establish a percentage of food sales for the audit period. Receipts for food purchases are typically used by the Division as a measuring stick against purchases of alcoholic beverages to determine an allocation of revenues. Despite several subsequent conversations between agent Myers and Respondent in an effort to obtain further clarification and documentation, agent Myers could not establish the appropriate division of revenues between food and alcoholic beverages. On the evening of February 6, 1997, agent Myers visited Respondent's premises between 8:00 p.m. and 9:00 p.m. He found approximately five customers on the premises, all at the bar, and only one employee, who was acting as bartender. The kitchen was shut down, and no food was visible to the naked eye. Agent Myers did notice a bag of frozen chicken wings in a freezer, but no other food was on the shelves or in the refrigerator. He also counted the chairs on the premises and found only 111. On February 18, 1997, agent Myers returned to the premises and found only 107 chairs for patrons. On both visits by agent Myers, Respondent had less seating capacity for food customers than is required under his special license. In addition, contrary to a Division rule requirement, full-course meals were not available at those times even though the restaurant was serving alcoholic beverages. At hearing, Respondent initially contended that he was confused as to the requirements for his license. Given the plain language in item 10 of his application, however, which clearly identifies the restrictions, this explanation has not been accepted. At the same time, it is noted that Respondent offered to voluntarily surrender his license to the Division in July 1997, since he knew that he could not meet the special conditions imposed under the law. The Division refused, however, on the ground an Adminstrative Action was pending against his license. Respondent acknowledged that on both February 7 and 18, 1997, he had less chairs for food customers than is required. Therefore, this portion of the charges has been sustained. In mitigation, he attributed this to his birthday party on one of those evenings and a "talent show" to be held on another evening, although virtually no customers were on the premises on either date when the inspections took place. Respondent has a menu from which customers can order, and he says he also has a daily luncheon buffet. In explaining the lack of food purchase receipts, Respondent claimed that most of his food was purchased from Premier Meats in Jacksonville, Florida, a retailer that caters to small businesses, such as Respondent's. According to a representative of Premier Meats, Nathanial A. Griffin, that firm conducts a "cash and carry" business, with no accounts receivables, and thus it does not invoice its customers. Griffin recalled that Respondent regularly made weekly purchases of chicken wings, gizzards, and white filets, which totaled between $60.00 to $80.00 per week, on average. Assuming this to be true, this equates to approximately $250.00 to $300.00 per month in food purchases from that vendor. The undersigned has independently reviewed the summary sheets, which Respondent says were prepared on a contemporaneous basis from cash register tapes. They reflect that the following revenues were derived from food and alcoholic beverage sales during the months of February 1996 Food through December 1996: Alcohol February 119.70 86.00 March 1200.10 851.85 April 3678.10 731.20 May 3121.27 1170.00 June 3026.90 956.00 July 1401.50 770.04 August 1771.25 1540.70 September 1504.85 2789.32 October 372.25 742.25 November 2941.01 2217.50 December 1376.04 948.50 Total 20513.97 12803.36 If the testimony of witness Giffin is accepted, then Respondent's food purchases from Premier Meats during the eleven month period would be no more than $3000.00. Given the lack of any other food receipts, the large number of receipts for purchases of alcoholic beverages, and the description of the premises on the two occasions when agent Myers inspected the closed kitchen, it is found that the summaries are not credible, due to a lack of underlying documentation. Therefore, it is found that Respondent did not derive at least 51 percent of his gross revenue from sales of food and non-alcoholic beverages, as charged in the Administrative Action.
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 Respondent's special restaurant license no. 26-07010 for violating Section 561.20(2)(a)4., Florida Statutes, without prejudice to obtain any other type of license, but with prejudice to obtain another SRX special license for five years from the date of the Final Order. Respondent should also have a $1,000.00 administrative fine imposed. DONE AND ENTERED this 24th day of June, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 David Carl Boston 2262 Orchard Street Jacksonville, Florida 32209 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material to the charges raised in this matter, the Respondent, Fresh Start, Inc., was the holder of a valid beverage license No. 62-661, Series 4-COP. That beverage license is issued to the licensed premises located at 7898 U.S. Highway 19, Pinellas Park, Florida, and known as the Strip Ahoy. Mr. Jack Leveritt is president of Fresh Start, Inc., and one of the two owners of that corporation. Mr. Tom Whitaker owns 50 percent of the stock of Fresh Start, Inc., and is vice president of that corporation. Pursuant to a stipulation entered into by and between the parties, on the record at the formal hearing, the following findings of fact are made: Count 1 - On or about March 9, 1983, Theresa Ann White, also known as Teanna, did unlawfully possess, sell and/or deliver controlled substance, diazepan, as defined in Florida Statute 893.03, to Sheriff's Deputy D. Patton, on the licensed premises. Count 2 - On or about March 9, 1983, Theresa Ann White, also known as Teanna, did unlawfully possess, sell and/or deliver a controlled substance, diazepan, as defined in Florida Statute 893.03, to Sheriff's Deputy D. Herrick, on the licensed premises. Count 3 - On or about March 10, 1983, Theresa Ann White, also known as Teanna, did unlawfully possess, sell, and/or deliver a controlled substance, diazepan, as defined in Florida Statute 893.03, to Sheriff's Deputy D. Ferdon, on the licensed premises. Count 4 - On or about March 12, 1983, Theresa Ann White, also known as Teanna, did unlawfully possess, sell, and/or deliver a controlled substance, as defined in Florida Statute 893.03, cannabis, to Sheriff's Deputy D. Ferdon, on the licensed premises. Count 5 - On or about March 20, 1983, Joyce Ann Seville, also known as Sherry, did unlawfully possess, sell and/or deliver a controlled substance as defined in Florida Statutes 893.03, Lysergic acid Diathamine, to Sheriff's Deputy C. Kanehl, on the licensed premises. Count 6 - On or about March 31, 1983, Sherry Ann Peters, also known as Carol, did unlawfully possess, sell, and/or deliver a controlled as defined in Florida Statute 893.03, cannabis, to Sheriff's Deputy D. Herrick, on the licensed premises. Count 7 - On or about April 1, 1983, Elizabeth Chader, also known as Luwanda, did unlawfully possess, sell and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Sheriff's Deputy C. Kanehl, on the licensed premises. Count 8 - On or about November 29, 1983, Theresa Yerby, also known as Brandy, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cannabis, to Sheriff's Deputy C. Kanehl, on the licensed premises. Count 9 - On or about December 15, 1983, Theresa Yerby, also known as Brandy, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Sheriff's Deputy C. Kanehl, on the licensed premises. Count 10- On or about January 8, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Beverage Investigators M. Freese and B. Ashley, on the licensed promises. Count 11 - On or about January 12, 1984, Theresa Yerby, also known as Brandy, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Sheriff's Deputy C. Kanehl, on the licensed premises. Count 12 - On or about January 12, 1984, Cherie Webber, also known as Cherie, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Beverage Investigator M. Freese, on the licensed premises. Count 13 - On or about January 12, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Beverage Investigator M. Freese, on the licensed premises. Count 14 - On or about January 12, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Beverage Investigator B. Ashley, on the licensed premises. Count 15 - On or about January 13, 1984, Cherie Webber, also known as Cherie, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cocaine, to Beverage Investigator B. Ashley, on the licensed premises. Count 16 - On or about January 13, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, methaqualone, to Beverage Investigator M. Freese, on the licensed premises. Count 17 - On or about January 17, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, methaqualone, to Beverage Investigator M. Freese, on the licensed premises. Count 18 - On or about January 17, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, methaqualone, to Beverage Investigator B. Ashley, on the licensed premises. Count 19 - On or about January 19, 1984, Christie Howard, also known as Christie, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, methaqualone, to Sheriff's Deputy C. Kanehl, on the licensed premises. Count 20 - On or about January 28, 1984, Kimberly Grenzbach, also known as Kimberly, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, methaqualone, to Beverage Investigator M. Freese, on the licensed premises. Count 21- On or about February 3, 1984, Theresa Yerby, also known as Brandy, did unlawfully possess, sell, and/or deliver a controlled substance as defined in Florida Statute 893.03, cannabis, to Beverage Investigator B. Ashley, on the licensed premises. Count 24 - On or about the below listed dates and times, entertainers Cody, Cherie, Valerie, Kimberly, Kim and Gayla, while actively engaged as dancers on the licensed premises, did unlawfully beg or solicit, patrons, customers or visitors, Beverage Investigators B. Ashley, D. O'steen and M. Freese to purchase beverages for the entertainers. NO. DATE APPROX. TIME EMPLOYEE VICTIM 1 4-6-83 10:00 P.M. CODY, dancer O'STEEN 2 4-6-83 11:45 P.M. CODY, dancer O'STEEN 3 1-6-84 8:00 P.M. CHERIE, dancer FREESE 4 1-6-84 8:50 P.M. CHERIE, dancer FREESE 5 1-17-84 8:50 P.M. CHERIE, dancer FREESE 6 2-3-84 10:15 P.M. CHERIE, dancer FREESE 7 2-3-84 10:30 P.M. GAYLA, dancer ASHLEY 8 2-3-84 11:00 P.M. KIMBERLY, dancer FREESE 9 2-7-84 7:15 P.M. KIM, barmaid ASHLEY 10 2-7-84 7:30 P.M. VALERIE, dancer ASHLEY 11 2-7-84 11:20 P.M. KIM, barmaid FREESE The transaction referred o in Count I above, occurred on the evening of March 9, 1983. On that particular evening, Deputy D. Patton entered the licensed premises with too other undercover officers and was approached by a dancer named Theresa White. Ms. white and Officer Patton began talking and during the course of the conversation, Ms. White offered to obtain some Valium for Deputy Patton. Officer Patton indicated that he would be interested in purchasing some valium and Ms. White then left him and was seen talking with another dancer at the bar area. A short time later she came back and said there was none left at that time but that she was going to get some later in the evening. Approximately 1 1/2 hours later, she returned to Officer Patton and indicated that she had obtained the diazepan. Officer Patton paid her $5.00 and she gave four diazepan (Valium) tablets to Officer Patton. The money and the tablets were passed under the table out of sight. The purchase of cocaine referred to in Count 10 above occurred on the evening of January 8, 1964. On that particular evening, Beverage Officers B. Ashley and M. Freese, went to the licensed premises and upon entering sat along the west wall of the main lounge area. They were joined by a dancer named Kimberly Grenzbach. They had previously discussed buying some cocaine from Kimberly Grenzbach. Shortly after they arrived, Kimberly and Officer Freese went into the back room of the lounge. The Strip Ahoy Lounge is built somewhat in the shape of a ship with the bow pointing toward the north. In the northern most portion of the lounge is located an office and a dressing room separated by a wall. Just outside the office is a square bar area with stools surrounding the bar. This bar is located in the main lounge portion of the bar which is a room approximately 63 feet long and 27 feet wide. In the southwest corner of the building is located the men's and women's restroom. The back room referred to above is a room located at the southeast corner of the lounge with a doorway leading into the main lounge. This back room is used for table or lap dancing. When Officer Freese and Kimberly went into the back room, they sat at a table and Kimberly took two triangular shaped plastic baggies containing cocaine out of her purse and handed them to Freese. She made no attempt to conceal these baggies. Freese then examined the baggies and handed her $100. The money was handed to her above the table and in the open. The total purchase price of the 2 grams of cocaine was $200 and Freese told Kimberly that Ashley had the other $100. Kimberly and Freese them returned to a large lounge area and sat next to Ashley who then gave the additional $100 to Kimberly. On the evening of January 9, 1984, Officer Freese was in the Strip Ahoy Lounge and went into the back room with Kimberly to examine some cocaine she was proposing to sell him. After entering the back room, they sat at a table and Kimberly took two small plastic baggies of cocaine out of her purse and handed them to Freese. Freese then examined the baggies and said they looked short to him. About that time Cherie Webber and her ex-boyfriend came into the back room and sat at a table. Kimberly then said "Cherie would know if anyone would" whether the baggies were short. Kimberly and Freese then walked over to Cherie's table and Kimberly handed the two baggies to Cherie, who held them up and examined them. Cherie said they looked short to her and she then handed them to her boyfriend who examined them and said it looked like about $60 worth to him. On the evening of January 12, 1984, Officers Ashley and Freese returned to the Strip Ahoy and made the drug purchases referred to in Counts 12, 13, and 14 discussed above. Prior to entering the lounge that evening, the two officers had made arrangements to buy cocaine from Kimberly Grenzbach. After they entered the lounge, they sat and waited for Kimberly and were approached by another dancer named Cherie Webber. Cherie walked by and asked if they wanted any "coke." Coke is a street term or slang for cocaine. Freese and Ashley told her they had already made arrangements to buy some from Kimberly. Cherie then said that she had hers with her now and Freese asked her about the quality of the coke she had. She responded that hers was always good quality. Cherie then sat down and agreed to sell Freese a half gram and said she needed to go into the bathroom because she had a large bag in her purse and she didn't want the small baggies to fall on the fiber when she opened her purse. She went to the bathroom and returned a short time later and sat next to Freese. Ashley was seated on the other side of Freese and observed Cherie hand a small, clear plastic baggie of cocaine to Freese. Freese then handed $50 to Cherie. After completing the purchase from Cherie, Freese went into the back room with Kimberly. They sat at a table and Kimberly handed him two plastic baggies containing cocaine. He held them up and examined them very carefully because of the problem he had on January 9. He tapped the baggies as he examined them and then selected one of the two baggies. He then handed $100 to Kimberly and told her she would have to talk to Ashley about the other gram of cocaine. Handing over the cocaine and the cash was done openly and not concealed. Later, on the evening of January 12, 1984, Freese and Ashley were approached by Kimberly, who walked up and told Ashley she had his cocaine. Ashley then went into the back room with Kimberly and sat at a table. Kimberly handed a clear plastic baggie containing cocaine to Ashley. Ashley held it up at eye level and examined it and then handed cash to Kimberly. There were other patrons and dancers in the room at the time. After purchasing the cocaine from Kimberly, Freese had spoken to Cherie once again and told her that Ashley wanted another half gram. When Ashley rejoined Freese, they left the bar to obtain more money and returned after midnight. While sitting in the back room with a dancer named Brandy, Ashley was approached by Cherie who walked up and asked if he wanted the half gram. She took a large baggie out of her purse. The large baggie contained several small baggies. Ashley then told Brandy she would have to move so he could get some money out of his pocket. He handed $50 to Cherie and she handed him a small baggie containing cocaine. This transaction was openly viewed by Brandy, Kimberly Grenzbach, and Officer Freese. This purchase is referred to in Count 15 above. The purchase discussed in Count 16 above occurred on the evening of January 13, 1984. Prior to going to the Strip Ahoy, Officer Freese had telephoned Kimberly and made arrangements to buy some "gorilla biscuits" which is slang for Quaaludes or methaqualone. After entering the lounge Kimberly walked up to Freese and said she had the Quaaludes. They then went into the back room and sat at a table. Kimberly was working as a dancer this evening and when they sat down, another dancer named Nellie was performing a lap dance for a patron at the next table. Kimberly handed Freese a clear cellophane packet containing 6 capsules of methaqualone. Freese paid her $24. There was no attempt to conceal the transfer of the cash or the methaqualone. On January 17, 1984, Officers Freese and Ashley returned to the licensed premises. They had previously arranged to buy some methaqualone from Kimberly Grenzbach. Shortly after arriving, Freese went into the back room with Kimberly where he purchased three Quaaludes (methaqualone capsules). Prior to paying Kimberly the agreed $12 price, Officer Freese examined the capsules. The cash and capsules were exchanged in open view with no attempt to conceal the exchanges. After completing the transaction with Freese, Kimberly returned to the main lounge area where Ashley was waiting. She took Ashley into the back room where she took a clear cellophane cigarette packet containing 3 capsules of methaqualone out of her purse and handed them to Ashley. Ashley then handed her $12 cash. There was no attempt by either of them to conceal the transfer of the drugs or cash. Officer Freese returned to the licensed premises on January 28, 1984, and made the drug purchase referred to in Count 20 above. Freese had previously phoned Kimberly Grenzbach and arranged to buy 25 methaqualone capsules. When he entered the licensed premises, Freese sat next to the west wall in the main lounge area. He was reined by Kimberly Grenzbach, who told him she had the Quaaludes. She said she would have to go into the dressing room and get them out of the locker. She left and returned a short time later and sat next to Freese. She placed a clear plastic baggie containing the 25 methaqualone capsules on the bench seat between them. Freese picked up the bag and looked at the capsules. Someone walking by at that moment could have seen the bag and capsules. Freese then handed Kimberly $100 in cash. On the evening of February 1, 1984, Officers Freese and Ashley were again in the licensed premises. At one point Officer Freese observed Kimberly Grenzbach talking with a gentleman seated at the bar. Kimberly left the man and walked over to Freese. She said the man at the bar had asked her to go in the back room and dance for him and snort some cocaine. Later, Freese and Kimberly went into the back room and sat at a table. They observed a dancer named Nellie come into the back room with the gentleman that Kimberly had previously been talking to at the bar. Nellie and the man sat at a table across the room from Freese. Freese observed the man take something out of his pocket, pour it on the table and line it up on the table. Kimberly said the man was going to snort coke with Nellie. The man then bent ever the table and made a loud snorting noise. Nellie then bent over the table and made a loud snorting noise. While this was occurring, Officer Ashley had come into the back room to look for Freese. When Ashley entered, Kimberly said, "Hey go over there and tell them you are a cop." Ashley observed Nellie and her male companion lining up a white powder on the table and then heard and observed a loud sniffing of the powder. This is typically the way cocaine is snorted or sniffed. Although the lights were fairly dim, there was sufficient light to observe people completely across the room. While on the licensed premises, Officer Ashley observed numerous other patrons and customers make drug purchases in the lounge. On the first three drug purchases made by Ashley, the dancer selling the drugs initiated the discussion and offered to sell drugs prior to any inquiry about drugs by Ashley. The Strip Ahoy is a topless bar and during the dates discussed above, the women involved in the drug purchases were working as dancers at the lounge. Each of the dancers was required to sign a contract before coming to work at the lounge. They were not paid a salary but danced solely for tips. They received no benefits such as workmen's compensation or Social Security from the Respondent. The contracts (see Respondent's composite Exhibit 2A through 2H) stated that the dancers were of three dances on a stage in an order established by Carl, the doorman. Carl Stone, the doorman and manager, would in the evenings, use a microphone and sound system to inform each dancer when it was her time to dance. While they were not dancing on the stage, the dancers would sit with patrons and perform table or lap dances for them in the back room. The lounge retained the right to approve or disapprove of a particular dancer's dance routine. Carl Stone supervised the dancers, and along with the owners, had the right to fire any dancer. Patrons, at least in part, came to the lounge to see the dancers perform. The lounge decided which dancers worked days and which dancers worked at night. Each dancer was given a copy of the House Rules and a copy was posted in the dressing room. These rules provided: Keep yourself well groomed at all times. Have attractive attire to wear when not performing. No Husbands, Boyfriends, ETC! Allowed while working. No one is to frequent club during off hours. No smoking or drinking while on stage. Only one girl on the stage at a time. No talking while on stage performing. Do not leave club except in street clothes. No sitting on stage bar. No more than two Ladies in dressing room at a time. (Except during beginning or ending of shift.) Any Dancer threatening another will be dismissed. Do not engage in any act which could be considered Lewd or Lascivious. Any Dancer stealing from a customer or other employees will be dismissed and prosecuted. Anyone suspected of Using, Buying or Selling of Drugs will be dismissed immediately. NO LOUD TALKING OR SHOUTING IN ROOM. KEEP YOUR VOICES DOWN. NO WHISTLING!! The individual who was responsible for the management and supervision of the club in the evenings from 7:00 p.m. to closing time at 2:00 a.m. was Carl Stone. He controlled the conduct of the dancers. Carl Stone was employed by the lounge as a salaried employee from April 1983 to August 26, 1983. In August, 1983, Carl Stone was also required to enter into a contract which stated he was an independent contractor and not entitled to a salary or other benefits. He was subject to the supervision, orders, advise, and direction of Respondent and was to provide management of the exotic dancers. Mr. Stone performed the same function and duties after this agreement as he did before the agreement was executed. When the owners were absent from the lounge at night, Carl was the sole person in charge. He worked at the door and collected the cover charge from 7:00 p.m. until 1:15 a.m. The first eight months of operation, Tom Whitaker was in the club almost every night. However, the last four months of operation, he generally did not come into the club until midnight or 1:00 a.m. On Friday and Saturday nights, there were two waitresses in the lounge. On other nights there was only one waitress. The waitresses were responsible for serving drinks in the lounge area and the back room and were the persons responsible for checking on the activities of the dancers in the back room on a regular basis. The back room could not be observed from the bar area, the office, or the entrance area. The door of the office has a two-way mirror which permits the owners to observe most of the main lounge from the office. During the year 1983, the owners gave polygraph exams on two occasions to all employees. One waitress, named Elizabeth Chader, had previously worked as a dancer and was fired after failing the polygraph on two questions relating to money and knowledge of drug activity on the licensed premises. This woman was also known as Luwanda and is the individual who sold drugs referred to in Count 7 discussed above. One of the owners, Jack Leverett, was questioned by the police about this dancer some time after she was fired and he gave them all the information he had. Dancers were not considered employees and were only polygraphed if a specific complaint was received. No dancers were polygraphed regarding drug activity. One dancer was fired after a bartender caught her with a needle in her arm in the restroom and reported it to the owners. Carl fired one dancer named Nikki after he observed her erratic behavior and found needle tracks on her arm. On at least two occasions, the owners called the Pinellas Park Police Department regarding suspected drug activity by patrons in the club. No such calls were made about any of the dancers at the club. When the club initially opened, a lot of "bikers" or motorcycle gang members frequented the club. The owners used a strict dress code and discouragement to eliminate these types of patrons from the club. The main lounge area and back room are dimly lit with candles on each table. The stage in the main lounge has lights in the floor and running red lights above. There are also lights in the bar area. The dim lighting makes it more difficult to observe the activities of dancers and patrons in the bar. The number of dancers in the club varied from 6 to 10 per shift. Typically, over an entire shift between 100 to 150 patrons would come into the club.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Petitioner enter a final order finding the Respondent guilty of the violations as charged in the Notice to Show Cause and suspending Beverage License No. 82-661 for a period of nine (9) months and imposing a civil penalty of $10,000. DONE AND ENTERED this 15th day of March, 1984, in 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 15th day of March, 1984. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joseph F. MeDermott, Esq. 544 First Avenue North Division of Administrative St. Petersburg, Florida Michael N. Athanason, Esq. 500-First Avenue North St. Petersburg, Florida 33701 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The first issue presented is whether Respondent failed to derive at least 51 percent of its gross revenue from sales of food and non-alcoholic beverages during the period of September 1, 1999 through October 31, 1999, contrary to Section 561.20(2)(a)4, Florida Statutes, and Rule 61A-3.0141, Florida Administrative Code. The second issue presented is whether during the period of November 1, 1999, through October 31, 1999, Respondent failed to maintain and/or produce separate records of all purchases and gross retail sales of food and non-alcoholic beverages and all purchases of gross retail sales of alcoholic beverages, to wit: numerous register summaries, Z tapes, contrary to Section 561.20(2)(a)4, Florida Statutes, and Rule 61A-3.0141, Florida Administrative Code. The third issue presented is whether during the period of April 1, 1999, through May 31, 1999, the Respondent failed to maintain and/or produce separate records of all purchases and gross retail sales of food and non-alcoholic beverages and all purchases of gross retail sales of alcoholic beverages, to wit: records provided failed to include cash bar sales, contrary to Section 561.20(2)(a)4, Florida Statutes, and Rule 61-3.0141(3) (a)2, Florida Administrative Code.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the agency charged with the responsibility of administering and enforcing the beverage law of the State. Chapters 561-568, Florida Statutes. At all times material to this proceeding, Respondent, Dawson, Fabrizzi, & Fletcher, Inc., d/b/a C.J. Oscars, operated a licensed restaurant business located at 1502 Miramar Street, Cape Coral, Florida, 33904. The corporate officers are Charles Dawson, president; Albert N. Fabrizzi, Vice-President; and Jack Allen, manager of C. J. Oscars. At all times material to this proceeding, Respondent applied for and was holding a series SRX4COP Alcoholic Beverage License Number 46-04601, which authorized the sale of beer, wine, and liquor for consumption on the licensed premises of the restaurant business. The designation "SRX" identifies a beverage license issued to a business operating [primarily] as a restaurant. Respondent's SRX license authorized the sale of alcoholic beverages on the premises, so long as at lease 51 percent of the gross revenue is derived from the sale of non-alcoholic beverages and food. Respondent was made aware of the 51 to 49 percent gross revenue requirement when Charles Dawson applied for the SRX license. Indeed, the application for the SRX license,1 signed by Charles Dawson, specifically noted these requirements and the necessity to maintain a record of compliance. Accordingly, Charles Dawson knew, or should have known, that he would need purchase and sale records to show, upon demand, the SRX-imposed percentage requirements were met by the licensee. Required statutory and rule compliance are made known to each SRX license holder and are strictly imposed upon each licensee.2 Section 561.20(2)(a)4, Florida Statutes, and Rule 61A-3.0141, Florida Administrative Code, clearly and unequivocally states that records of all purchases and gross retail sales are required to be kept, in legible English language, by each licensee and are made available upon demand by the DABT. To enforce the above requirements, DABT performs periodic audits of all restaurants holding a special SRX license. As a part of that audit process, Special Agents from DABT conduct undercover visits and announced visits, as is its normal custom and practice. Between May and October 1999, Steven Tompkins, District Supervisor, Fort Myers office, DBAT, testified to making undercover visits to C.J. Oscars Restaurant on five to fifteen different occasions. During one or more of those visits, he observed Monday night drink specials where patrons who spent $5.00 on any combination of food/drink were given a plastic cup along with their initial order. Thereafter, and for the remainder of the evening, drinks were sold to cup holders for $0.25 per drink. On several other occasions, he observed money paid at the bar for cash sales of alcoholic drinks go directly into the pocket of the bartender, Mr. Allen. On other occasions, he observed Mr. Allen ring-up money on the bar cash register for both food and alcoholic drinks. On occasions while he sat at the bar, he observed cash sale money rung up on the cash register and the actual receipt of the sale thrown into an ice bucket under the bar. Mr. Tompkins, based upon his 25 years of experience, his observations, personal purchases and knowledge of the business operation, believed that Respondent was selling more alcoholic beverages than food. Ms. Debra Martin initially visited Respondent's restaurant on or about May 19, 1999, and after identifying herself as an agency employee requested access of food purchase records for April and May 1999 and was informed that the requested records were kept off premises.3 Ms. Martin testified that during September 1999 she requested bank statements and guest checks. Respondent could not provide guest check, and informed Ms. Martin that some guest checks were no longer kept. Ms. Martin's request for "Z" tapes went unanswered at that time. The Agency introduced in evidence Respondent's income statement4 for the four-month period, January 1, 1999, through May 31, 1999, which indicated that Respondent sold 51.20 percent alcohol and 48.80 percent food during that four-month period of time. David Cary (Respondent's bookkeeper) testified that C.J. Oscars had opened the business the third week of March 1999, and Respondent's income statement related to the nine-week period from the third week of March 1999 to May 31, 1999. Mr. Cary testified that C.J. Oscars had met its required sale percentages for the eight-week period of April 1, 1999, through May 31, 1999. Jack Allen, III, manager of C.J. Oscars, and Michael Batson, register expert, both testified that register Z tapes record each register transaction in sequential numbering, with the initials G.T., meaning grand total. Both witnesses testified that the register records a running total of the purchases entered and this information is recorded on the Z tapes of each register. Mr. Allen, regarding missing Z tapes, testified that during a new employee training, the trainee would practice register operation by running a Z tape, and he limited a new employee's training sessions to use of only two Z tapes. Mr. Allen concluded his testimony by stating that cash bar receipts were often thrown into a bucket on the bar, and as bar manager he would check the cash receipts against other records each morning, tally totals by pencil, and throw the cash receipts away. Special Agent, Jim Lanza testified that of the Z tapes provided by Respondent, in response to the Agency demands, he organized into charts.5 The charts showed which Z tapes were missing, to wit: September 2, 1999, beginning with Z tape number 134 which was provided; the following sequentially number tapes were missing, 136, 137, 139, 140, 141. For October 1, 1999, beginning with Z tape number 228 which was provided, the following are examples of missing tapes, 229, 230, 232, 233. Mr. Lanza's charts, using the grand total of the beginning lower-numbered Z tape as the base, subtracted the beginning grand total from the next sequential grand total provided, with the resulting difference reflecting unreported sales. From this charting sequence, Mr. Lanza concluded that Respondent's unreported sales from missing Z tapes was $65,133.08 for the months of September 2, 1999, through October 31, 1999. Charles Dawson testified in agreement with the testimony of his bar manager, Mr. Allen, regarding the use of Z tapes, the training of new employees, and cash receipts having been placed in a water bucket on the bar and later being thrown away. Mr. Dawson's additional reasons for the missing Z tapes, while questionable, demonstrated a persistent and recurring pattern of a lack of diligence or a practiced disregard for consequences. According to Mr. Dawson, he read and signed the SRX license affidavit, but now claims he did not understand, nor did anyone explain to him what "specific type of records" he was required to keep.6 As to cash bar sales receipts, Mr. Dawson testified that they were added together with other sales, stapled to the guest checks for a running total, compared with the Z tapes totals and cash in register totals, and then thrown away. Regarding the missing Z tapes, Mr. Dawson testified that one of his registers had broken down, and was repaired and when back in operation, the Z tape numbering system was sequentially misaligned and returned to zero; thus, the missing Z tapes. On another occasion, lighting struck a register causing it to jam and render two or more Z tapes unreadable; they were thrown away. During the few days the registers were down, either he or Mr. Allen would go to each register drawer, at the end of the business evening, take the cash totals, and give that information to Mr. David Cary, bookkeeper. Charles Dawson, owner, knew of the mandatory requirement to maintain records of all gross sales of food and non-alcoholic beverages, separate records of all gross purchases of alcoholic purchases, and separate records of all gross retail sales of alcoholic beverages. Charles Dawson, by his actual participation in the wrongful destruction of records, permitted, approved, and condoned the continuous destruction by Ray Allen of cash sale receipts of alcoholic beverages and the destruction of register Z tapes resulting from the sale of food and alcoholic beverages by C. J. Oscars.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of the penalty guidelines in Rule 61A-2.022, Florida Administrative Code, it is recommended that the Department of Business and Professional Regulation enter a final order revoking Respondent's Alcohol Beverage License SRX4COP Number 46-04601. DONE AND ENTERED this 13th day of April 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2001.
Findings Of Fact Respondent is Alice Waldo, holder of Alcoholic Beverage License No. 45- 00293, Series 2-COP, for a licensed premises known as the SILVER DOLLAR CAFE located in Lake County, Florida. On or about February 4, 1989, an investigator employed by Petitioner entered the licensed premises of Respondent. While in Respondent's facility, the investigator observed several patrons smoking a substance, which by its smell and usage, he believed to be marijuana. The investigator then met with a patron, ordered a small quantity of crack cocaine and handed the patron some money for the forthcoming purchase. The patron then asked Respondent to hold the money while he left the premises to retrieve the controlled substance from his automobile. Shortly thereafter, the patron returned with the cocaine. The investigator showed the substance to Respondent's daughter, who had taken her mother's place at the bar. The purpose of displaying the drug to the proprietor, or the proprietor's daughter in this instance, was to later illustrate that Respondent condoned the use and sale of the drug in connection with her licensed premises. A field test by the investigator and a later laboratory test confirmed the identity of the substance purchased as crack cocaine. Petitioner's investigator again entered Respondent's facility on or about February 10, 1989. On this occasion, the investigator purchased a quantity of marijuana from a female patron, then took the substance over to the bar where he proceeded to roll a marijuana cigarette in the presence of Petitioner. At no time did Petitioner inform the investigator that controlled substances were not allowed on the licensed premises. Upon later laboratory analysis, the substance was confirmed to be marijuana. Upon leaving Respondent's facility on February 10, 1989, Petitioner's investigator met an individual within 10 feet of the front door of the premises who sold him a quantity of a substance later determined by laboratory analysis to be crack cocaine. On or about February 24, 1989, Petitioner's investigator entered Respondent's facility. On the front porch of Respondent's facility, the investigator purchased a quantity of a substance later determined by the investigator's field test and a subsequent laboratory analysis to be crack cocaine. After completing the purchase of the substance, the investigator went inside the facility, placed the material on the counter and recounted to Respondent that it had just been purchased on the front porch. Respondent made no reply to the investigator's announcement and, instead, complied with his request for change for a $20 bill. Upon receipt of the change, the investigator wrapped the crack cocaine in a $1 bill in Respondent's presence. On February 28, 1989, Petitioner's investigator again entered Respondent's facility. He approached a black female named "Lilly" and gave her $20 for the purchase of crack cocaine. However, after the lady accepted the $20 and left to retrieve the cocaine, she did not return. The investigator complained to Respondent that "Lilly" had failed to deliver the drug to him. The investigator also told Respondent that the lady could keep the $20 if Respondent would get him some of the drug. At that time, Respondent referred the investigator to a group of three male patrons on the front porch of the facility who appeared to be smoking marijuana. At no time during this incident did Respondent take any steps to prevent the use of any controlled substances on the licensed premises. Subsequently, Petitioner's investigator returned to Respondent's facility on or about March 4, 1989. He purchased a beer and went outside to the front porch of the facility. He observed a number of furtive transactions where currency was passed between certain individuals. He noticed Respondent go to one of the automobiles in the facility parking lot, get into the automobile, engage in conversation with the occupants and shortly thereafter emerge from the automobile. Respondent went back into the facility. The investigator approached a black male and gave him $20 for some crack cocaine. The black male took the investigator's money, then went directly to the automobile where Respondent had been previously. He returned shortly thereafter to the investigator with two pieces of a substance which later tested positive, via field test and laboratory analysis, as cocaine. During another visit to Respondent's facility on or about March 9, 1989, Petitioner's investigator observed a patron rolling what appeared to be marijuana cigarettes in Respondent's presence. While Respondent took no action to prohibit the use or possession of the apparently controlled substance, she did get her coat and leave shortly after the investigator's arrival. On or about March 11, 1989, Petitioner's investigator reentered Respondent's facility. The investigator purchased a small quantity of crack cocaine from a black male on the front porch of the facility. The investigator then took the controlled substance inside the building and displayed it to Respondent, telling her that he had just obtained the drug on the porch. Respondent asked the investigator if he was going to smoke the drug, and he replied yes. Later, a field test and laboratory analysis confirmed the drug to be cocaine. On or about March 17, 1989, Petitioner's investigator visited Respondent's facility. This time the investigator purchased a small quantity of a drug on the front porch of the building which, upon subsequent field test and laboratory analysis, was confirmed to be cocaine. After completing the purchase, the investigator took the substance inside and showed it to Respondent. Later in the evening, the investigator engaged Respondent in conversation on the front porch and related to her that he had observed numerous drug transactions taking place in her facility. Respondent smiled in acknowledgment of the investigator's statement and replied that she certainly hoped he was not a policeman. He told her that he was not a policeman. Respondent took no action to prohibit further use or transactions relating to drugs on the premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's beverage license bearing number 45-00293, Series 2- COP. DONE AND ENTERED this 13th day of June, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 13th day of June, 1989 APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-10. Addressed. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: EDWIN R. IVY, ESQUIRE BOX 3223 ORLANDO, FLORIDA 32810 THOMAS A. KLEIN, ESQUIRE DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1007
Findings Of Fact Respondent is the holder of Beverage License No. 26-150, Series 2-COP, allowing the consumption of alcoholic beverages on the premises, located at 5212 Heckscher Drive, Jacksonville, Florida. This beverage license was previously held by Respondent's husband, Glenn F. Rodgers, and brother-in-law Don E. Rodgers. Following their felony convictions, the Rodgers brothers agreed by stipulation signed on February 19, 1979, to divest themselves of all interest in the licensed operation. This stipulation was incorporated in Petitioner's Order signed April 3, 1979, which directed transfer of the license to a qualified applicant. Mary J. Rodgers applied for the transfer of said beverage license and included an affidavit filed with Petitioner on February 14, 1979, averring that she was purchasing the business from her husband and brother-in-law and would be the only person with any interest, direct or indirect, in the business. In reliance on this statement and the stipulation, Petitioner transferred the beverage license to Respondent. During an undercover inspection at Brown's Creek Fish Camp on June 6, 1980, beverage officers observed Respondent's husband, Glenn F. Rodgers, working on the licensed premises. On a June 27, 1980, follow-up inspection, beverage officers observed him giving instructions to a waitress. In a casual conversation, Glenn Rodgers told Beverage Officer Cunningham that the business was his and that he had owned it for three years. During Glenn F. Rodgers' prison work-release parole in 1980, he worked full-time at Brown's Creek Fish Camp. He is now employed in a construction job, but continues to work in the licensed premises on a part-time basis. Following the June premises inspections, Petitioner investigated Respondent's business relationships end discovered that the lease agreement on the property housing the licensed premises remained in the names of Glenn F. end Don E. Rodgers. When the Rodgers brothers originally purchased the business they co-signed a Small Business Administration loan for $30,000 and a promissory note to the prior owners for $10,000. Their names also remain on these business loans. Respondent paid $3,000 for the business, and makes lease and lean payments. She has not, however, assumed the underlying obligations to the lenders. Records of the Lake Forest Atlantic Bank, where Respondent conducts her banking, revealed that an account was opened on May 4, 1977, under the names of Glenn F. end Don B. Rodgers, a general partnership. The name of Mary J. Rodgers was added to the signature card on January 18, 1979, and on the date of the hearing, all three names remained on the account records. By late-filed exhibit, Respondent demonstrated that the bank account has now been transferred to her. Respondent's business records include invoices from the Eli Witt Company, Post Office Box 6887, Jacksonville, Florida. An Eli Witt receipt dated July 18, 1980, for supplies delivered to Brown's Creek Fish Camp carries the signature of Glenn Rodgers, Respondent's husband. North Florida Premium Finance Company and the Robert S. Shute, Inc. Insurance Agency records reveal that Glenn F. Rodgers also signed for the financing of business insurance policies issued to Mary O. Rodgers d/b/a Brown's Creek Fish Camp for the policy period June, 1980 to June, 1981.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of failure to disclose the interest of Glenn F. Rodgers at the time of making application for a beverage license in violation of Section 861.17, Florida Statutes (1979. It is further RECOMMENDED that Respondent be found guilty of failure to comply with Petitioner's Administrative Order directing divestment by Glenn F. Rodgers of any interest in operation of the licensed premises. It is further RECOMMENDED that Beverage License No. 26-150, Series 2-COP, held by Mary J. Rodgers, be revoked. DONE and ENTERED this 27th day of May, 1981, 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 27th day of May, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Donald G. Nichols, Esquire Post Office Box 40011 Jacksonville, Florida 32203
The Issue The issue presented here concerns the accusation by the Petitioner directed to the Respondent that the Respondent, on or about January 24, 1980, did unlawfully have in her possession or permit or allow someone else to have in their possession, namely, Anthony Lewis Graham, alcoholic beverages, to wit: one partial quart bottle of Smirnoff Vodka, one partial quart bottle of Gordon's Gin and one 200 ml bottle of Gordon's Gin, on the licensed premises and it is further alleged that the substances were not authorized by law to be sold under the Respondent's license, contrary to Section 562.02, Florida Statutes.
Findings Of Fact The Petitioner in this action is an agency of the State of Florida which has as its purpose the regulation of those several licensees who sell alcoholic beverages and tobacco products in the State of Florida. The Respondent, Estelle Collins, is the holder of an alcoholic beverages license issued by the Petitioner, License No. 26-00766, Series 2-APS. This license allows the Respondent to sell beer and wine to be consumed off the licensed premises. The license is issued for the Respondent's premises located at 1152 East 21st Street, Jacksonville, Florida, where the Respondent trades under the name 21st Street Grocery. On January 24, 1980, Anthony Lewis Graham, one of the Respondent's patrons in her licensed premises, removed a box from his automobile which was parked on the street in the vicinity of the licensed premises. He carried the box which contained a partially filled quart bottle of Gordon`s Gin; a partially filled quart bottle of Smirnoff Vodka and a partially filled 200 ml bottle of Gordon's Gin into the licensed premises. These bottles contained liquor, that is, alcoholic or spiritous beverages that were not authorized to be sold at the licensed premises under the terms and conditions of the license issued to the Respondent. The box containing the liquor was carried in while an employee of the Respondent was working in the licensed premises and placed behind the meat counter. The box was left with the top opened. It is not clear whether the employee saw the bottles in the box prior to a routine premises inspection conducted by officers with the Division of Alcoholic Beverages and Tobacco. The inspection took place shortly after Graham had brought the alcoholic beverages into the licensed premises. When the officers entered the premises, they identified themselves to the employee working in the store and this employee left to get the licensee. The employee returned with the Respondent, Estelle Collins, and the officers commenced inspection of the premises. In the course of that inspection, they discovered the aforementioned bottles of alcoholic beverages in the box. They also noted other empty liquor bottles in the area of the meat counter and the service counter within the licensed premises. (There had been another occasion in February, 1979, when the Petitioner's officers had discovered empty gin and vodka bottles in the licensed premises, and this former situation brought about a citation to the Respondent but no penalty action was taken against the Respondent.) No testimony was developed on the matter of the instructions which the Respondent had given to her employees on the subject of keeping unauthorized forms of liquor out of the licensed premises. The only remark which was established by the hearing dealing with the question of keeping those items away from the licensed premises was a statement by Graham, who said that it was not unusual for him to go behind the service counter in the licensed premises. Following this inspection and the discovery of the alcoholic beverages, to wit: liquor bottles in the box, the Petitioner brought the present action against the Respondent.
Recommendation It is RECOMMENDED that the Notice to Show Cause/Administrative Complaint accusation placed against the Respondent, Estelle Collins, d/b/a 21st Street Grocery, License No. 26-00766, Series 2-APS, be DISMISSED. DONE AND ENTERED this 4th day of September, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1980. COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. Kennedy Hutcheson, Esquire 341 East Bay Street Jacksonville, Florida 32202
Findings Of Fact The Respondents, Conrad F. and Shirley Bouchard, are holders of beverage license number 39-790, series number 2APS. This license is issued to the licensed premises, Brandon Beverage Center, located at 118 Margaret Street, Brandon, Florida. The license was obtained by the Respondents by transfer on August 21, 1981. The licensed premises is a drive-through store which sells beer and wine, milk, bread, and other grocery items. Conrad F. Bouchard, Sr., is one of the owners and licensees and is also the manager of the store. His regular working hours are from 8:30 or 9:00 A.M. to 4:30 or 5:00 P.M. He occasionally is required to work evenings and weekends. Conrad F. Bouchard, Jr., also known as Butch, is the son of the Respondents and worked nights at the licensed premises. On April 1, 1982, the Respondent was given a written warning from Beverage Officer George Miller that there had been complaints about sales of alcoholic beverages to minors at the licensed premises. On October 27, 1982, an employee of Respondent, named Scott Steinberg, was arrested for selling alcoholic beverages to minors. As a result of this, the Division of Alcoholic Beverages by Notice to Show Cause brought formal administrative charges against the Respondents. The charges against the Respondents resulted in a stipulation and settlement with the Respondents agreeing to pay a $300 fine. On July 22, 1983, Scott Steinberg was arrested for selling alcoholic beverages to minors and formal administrative charges were brought against the Respondents as a result of the alleged sales to minors. These charges are still pending. On the evening of October 11, 1983, at approximately 9:00 P.M., Detectives Michael Ray and Mark Olive of the Hillsborough County Sheriff's Office, went to the licensed premises to investigate complaints relating to the sale of drugs on the licensed premises. They were accompanied by a confidential informant. Upon arriving at the licensed premises, Butch Bouchard approached the vehicle and the confidential informant asked if he had any marijuana they could purchase. Butch Bouchard responded that he did. Scott Steinberg, another employee working at the licensed premises, approached the vehicle and took $26 from Detective Ray as payment for the marijuana. Butch Bouchard then returned to the vehicle holding a cigarette carton with the top torn off. He handed the carton to the confidential informant who in turn handed it to Detective Ray. The carton contained a baggie containing approximately five grams of marijuana (cannabis), a controlled substance under Florida Statute 893.13 (1981). On October 13, 1983, at approximately 9:10 P.M., Detectives Ray and Olive returned to the licensed premises. As they stopped their vehicle inside the drive-through store, Butch Bouchard approached Detective Ray. Ray asked Butch Bouchard if they could purchase some marijuana. Bouchard looked in the backseat of the vehicle and saw the confidential informant and then walked over to the office area. Bouchard then returned with a paper bag which he handed to Detective Ray. Detective Ray handed $25, the agreed price of the marijuana, to Bouchard. The paper bag contained a clear plastic baggie filled with marijuana. On this particular evening, Butch Bouchard was the only employee on the licensed premises. In the early evening of October 17, 1983, Detective Ray, accompanied by Detective Tony Roper, drove into the licensed premises. Butch Bouchard approached the vehicle and Detective Ray asked if he could purchase some marijuana. Butch Bouchard then asked Detective Ray to get out of his vehicle and select which bag he wanted. Butch Bouchard had several bags in his hand and asked Detective Ray to look at them. Detective Ray selected one bag and purchased it from Butch Bouchard. The bag contained marijuana. On October 20, 1983, at approximately 9:00 P.M. Detectives Ray and Roper returned to the licensed premises. Officer Ray purchased a plastic baggie of marijuana from Butch Bouchard for $25. On November 10, 1983, Detective Roper and Detective Mathai, Hillsborough County Sheriff's Office, went to the licensed premises and asked to buy a bag of marijuana from Butch Bouchard. Butch said he did not have any and asked them to come back later. When the detectives returned the Beverage Center was closed and Butch Bouchard was in the parking lot. Butch came over to the Detectives' car and sold them a plastic baggie of marijuana. On November 17, 1983, Detectives Geoffry Dean Mathai and John Zdanwic of the Hillsborough County Sheriff's Office, went to the licensed premises. On a prior occasion, Detective Mathai had gone with Detective Tony Roper to the licensed premises and had talked with Butch Bouchard about marijuana. On this evening, Detective Mathai asked Butch Bouchard if he remembered Tony and after a short conversation Mathai asked Butch if he could buy some marijuana. Butch said yes and asked how many bags. Detective Mathai told him they wanted two bags. Butch left the car, went into the office and returned a couple of minutes later with a Benson & Hedges cigarette carton. He handed the carton to Detective Mathai and Detective Mathai and Detective Zdanwic each handed him cash. The two detectives also had ordered a beer each and received the beer and change from Butch Bouchard. The cigarette carton contained two plastic baggies of marijuana. Detectives Mark Olive and Swann also made a purchase of marijuana at the licensed premises on the evening of November 17, 1983. The two detectives drove into the licensed premises and asked Butch Bouchard if they could purchase a $25 bag of marijuana and asked if he had that much. Butch responded yes and walked to the office area and then came back with a cigarette carton which he handed to Detective Olive. The carton contained a plastic baggie of marijuana. Butch Bouchard was paid $25 for the bag of marijuana. The only employees observed on the licensed premises this night were Butch Bouchard and Scott Steinberg. On the evening of November 22, 1983, Detective Ray and several other officers went to the licensed premises to serve a search warrant. When they arrived, Detective Ray spoke to Conrad Bouchard and asked if they could purchase some marijuana. Butch answered yes and went over to the area of the cash register and office area. Detective Ray then got out of his car and walked over to the office where he saw Butch Bouchard crouched down and looking at five bags of marijuana. Detective Ray identified himself as a police officer and Butch then grabbed the bags and ran into the bathroom and tried to flush the marijuana down the toilet. Detective Ray caught Butch before he could flush the toilet. After arresting Butch Bouchard, the officers searched Butch's car and found a pipe and two more plastic baggies of marijuana. When Butch was crouched looking at the bags of marijuana, Scott Steinberg was present in the same area. On each of the evenings that purchases of controlled substances were made at the licensed premises, no employees other than Butch Bouchard and Scott Steinberg were present at the licensed premises. Neither Butch Bouchard nor Scott Steinberg is a night manager. Both these individuals are merely sales clerks. The only manager for the licensed premises is Conrad F. Bouchard, Sr. Although the normal working hours for Conrad F. Bouchard, Sr., is 8:30 to 4:30 or 5:00 P.M., he occasionally returns to the licensed premises in the evenings to check on things. Mrs. Bouchard also makes a point of stopping by the licensed premises in the evening. Occasionally, Mr. or Mrs. Bouchard would check on the licensed premises without the employees being aware they were observing. Mr. and Mrs. Bouchard had no knowledge of the drug transactions which took place on the licensed premises. Shortly after acquiring the licensed premises, Mr. Bouchard fired several of the previous employees for selling alcoholic beverages to minors. Until the arrest of Butch Bouchard and Scott Steinberg for drug violations, there was no evidence that any disciplinary action was taken by the licensee against these two individuals for sales to minors on two occasions. Mr. Bouchard had a clear policy against selling alcoholic beverages to minors. He constantly instructed employees to check identification. There was no evidence of instructions or warnings having been given relating to other types of illegal activity. During July and August, 1983, Mr. and Mrs. Bouchard took separate vacations in order for one of them to be available to oversee the operation at the licensed premises. The licensed premises enjoys a good reputation in the community as a clean, well-run establishment. The Respondents individually enjoy an excellent reputation in the community as honest, hardworking people.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED: That a final order be entered finding the Respondents guilty of the violations as set forth above and imposing a civil penalty of $1400 and a suspension of the beverage license for a period of 30 days. DONE and ORDERED this 21st day of December, 1983, in 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 21st day of December, 1983. COPIES FURNISHED: Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Danny Hernandez, Esquire 707 Swann Avenue Tampa, Florida 33606
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 At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Mehreen Enterprises, Inc., held license number 23-21339, Series 2APS, authorizing it to sell alcoholic beverages on the premises of a business known as Super Stop Food Store #2, located at 9260 Hammocks Boulevard, Miami, Dade County, Florida (hereinafter "the licensed premises"). Syed Abdul Qadir (Qadir) was, and is, a shareholder of the Respondent corporation, and the manager of the licenses premises.1 On March 1, 1997, at or about 8:00 p.m., Richard Stangl (Richard), date of birth December 7, 1976, and 20 years of age at the time, entered the licensed premises, retrieved a 32 ounce bottle of Red Dog beer from a vertical cooler, and proceeded to the counter where he paid Qadir for the beer and left the premises. At the time, Qadir did not request to see any identification as proof of legal age, nor did he ask Richard his age. As Richard drove away from the store he was intercepted by the police, who were engaged in an investigation of the premises. Confirming Richard's age and the possession of an alcoholic beverage,2 Richard was returned to the licensed premises where he and Qadir were placed under arrest.3 Respondent does not dispute that the foregoing events occurred. Rather, it contends that it took reasonable precautions to avoid serving an underaged person and should not, therefore, be penalized for the subject sale. Given the proof, Respondent's contention has merit. While Richard was less than 21 years of age at the time, the proof demonstrated that his appearance was such that an ordinary prudent person would believe he was of legal age to purchase alcoholic beverages.4 The proof further demonstrates that Richard frequented the licensed premises on a regular basis over a three month period, and that he routinely purchased (approximately 30 times) alcoholic beverages during that period. Initially Qadir inquired as to his age, which Richard stated to be 21, and requested identification, which Richard presented in the form of a driver's license consistent with that age. Qadir continued to request identification for a time but, as Richard appeared regularly at the store, and began to complain, he ceased requesting identification. Given the repeated assurances by word and identification card that Qadir had received regarding Richard's apparent age, Qadir's failure to continue to request identification was not unreasonable.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Action. DONE AND ENTERED this 18th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1997.
The Issue The issues are: (1) whether Respondent violated Section 562.02, Florida Statutes (2007),1 by unlawfully possessing certain alcoholic beverages on its licensed premises which were not authorized to be sold under its license; (2) whether Respondent violated Subsection 561.14(3), Florida Statutes, by purchasing or acquiring alcoholic beverages for the purpose of resale from persons not licensed as distributors; and (3) if so, what penalty or administrative fine should be imposed.
Findings Of Fact Respondent is, and was at all times relevant hereto, the holder of alcoholic beverage License No. 62-10299, Series 2-COP, which permits the sale of beer and wine, but no other alcoholic beverages, for consumption on the premises. Petitioner seeks to impose sanctions on the license of Respondent. Mr. Pagini owned and operated Latin American Café, a restaurant located at 3780 Tampa Road, Oldsmar, Florida. The restaurant serves Latin American and South American foods and desserts, some of which contain alcoholic beverages in preparation of said food. At all times relevant to this proceeding, the menu for Latin American Café stated that only one type of liquor was used for cooking. Respondent was placed on the Division's "No Sale" list on August 21, 2007, for failure to renew its license. As a result of being on the "No Sale" list, distributors were prohibited from selling alcoholic beverages to Respondent. Nevertheless, as discussed below, a receipt dated August 23, 2007, shows that a distributor sold alcoholic beverages to Respondent. Due to Respondent's being placed on the "No Sale" list, Casey Simon, a special agent with the Division, conducted an inspection of Latin American Café on November 21, 2007. During the inspection, Agent Casey discovered beer and liquor on the premises. The beer was located in a cooler behind the bar at the front of the premises, and the liquor was located in the manager's office and in the kitchen cupboards. The liquor discovered on Respondent's premises on November 21, 2007, consisted of the following: (a) one, one-quart bottle of Mr. Boston Crème De Cassis; (b) one, 750-millimeter bottle of Cinzano Rosso Vermouth; (c) one, 750-millimeter bottle of Chevas Regal Whiskey; (d) one, 750-millimeter bottle of Sambuca Di Amare; (e) one, 1.75-liter bottle of Heritage Triple Sec; (f) one, 250-millimeter bottle of Chasqui Licor De Café; (g) one, 750-millimeter bottle of Truffles Liquor; (h) one, one-liter bottle of Sambroso Licor De Café; and (i) one, .75-liter bottle of Heritage Rum. Respondent contends that seven of the nine kinds of suspect liquor found on the premises were used for cooking, mostly desserts, at the business. The remaining two liquors found on the premises, Chevas Regal Whiskey and Sambuca, were for Mr. Pagani's personal use. The Chevas Regal Whiskey was a present that had been given to Mr. Pagini, and at the time of the inspection, the whiskey was in a box in his office. The Sambuca Di Amare is a "digestive" liquor made in Italy and was for Mr. Pagini's personal use. Although most of the liquor was found on Respondent's premises during the inspection, Respondent's menu does not list any of the suspect liquors as an ingredient in any of the menu items. The beer discovered on Respondent's premises on November 21, 2007, consisted of the following: (a) 41, 12-ounce bottles of Bud Light, with a born date of September 2007; (b) six, 12-ounce bottles of Budweiser; (c) 27, 12-ounce bottles of Miller Lite; (d) 12, 12-ounce bottles of Heineken; and (e) 19, 12-ounce bottles of Corona. The Bud Light's "born date" of September 2007, is the date in which the beer was manufactured. Thus, it can be reasonably concluded that beer with a "born date" of September 2007, cannot be purchased prior to that month. During the November 21, 2007, investigation, the Division's agent requested invoices for the beer found on the premises. Respondent produced a receipt from Sam's Club dated November 16, 2007, which reflected the sale of various items to a "member," identified, presumably, by a membership number. Among the items purchased were other documents provided to Agent Simon which showed that Latin American Café was the member on the November receipt. Next to the name of each kind of beer was the number "24" which, presumably, indicated the number of bottles of beer that were purchased. Mr. Pagini testified that many of the items purchased from Sam's Club on November 16, 2007, including the Bud Light and the Heineken, were for personal use. At this proceeding, Respondent introduced into evidence copies of two receipts which reflect that it purchased alcoholic beverages from two authorized distributors, J.J. Taylor Distributors Florida, Inc. ("J.J. Taylor Distributors") and Great Bay Distributors, Inc. ("Great Bay Distributors"). The receipts were dated August 9, 2007, and August 23, 2007, respectively. The receipt from J.J. Taylor Distributors dated August 9, 2007, reflects that Respondent purchased the following alcoholic beverages: (a) 24, 12-ounce bottles of Becks beer; (b) 24, 12-ounce bottles of Braham beer; (c) 24, 12-ounce bottles of Heineken beer; (d) 24, 12-ounce bottles of "Lite" beer; and (e) 24, 12-ounce bottles of Presidente. The receipt from Great Bay Distributors dated August 23, 2007, reflected the purchase of the following alcoholic beverages: (a) 24, 12-ounce bottles of Budweiser beer; (b) 24, 12-ounce bottles of Corona beer; (c) 24, 12-ounce bottles of Modesto Especial; and (d) 24, 12-ounce bottles of Negro Modesto. Despite Respondent's providing receipts from distributors, no plausible explanation was provided to establish when and from whom the Bud Light, discovered on Respondent's premises on November 21, 2007, was purchased. The receipts from the distributor were dated about one month prior to the Bud Light's born date of September 2007. The suspect Bud Light has a born date of September 2007, which is after the dates of the distributor receipts and after Respondent was placed on the "No Sale" list. No evidence was offered to establish where the suspect beer, Bud Light, was purchased or acquired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: (1) finding that Respondent, Latin American Café and Market, Inc., d/b/a Latin American Café, violated Section 562.02, Florida Statutes; (2) finding that Respondent did not violate Subsection 562.14(3), Florida Statutes; (3) imposing an administrative fine of $1,000.00 for the violation of Section 562.02, Florida Statutes; and requiring the fine to be paid within 30 days of the final order. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 March, 2009.
