Findings Of Fact Exhibit 1, a certified copy of the county court record of Gadsden County, Florida, shows that on August 4, 1972 Petitioner was charged with unlawfully selling beer without license, posted bond of $250, and on the date set for trial, did not appear and the bond was ordered forfeited. Exhibit 2, a certified copy of the commitment order by the circuit court of Gadsden County shows that on November 26, 1973 Willie Chandler was sentenced to the county jail for nine months on an adjudication of guilty of receiving stolen property. Exhibit 3, a certified copy of the county court of Gadsden County minutes book, shows that Willie Jasper Chandler was, on 8-16-71, found guilty of unlawfully selling beer "between the hours of 12:00 midnight Saturday and 7:00 A.M. Monday". Testifying in his own behalf Petitioner acknowledged guilt of selling beer on Sunday as charged in Exhibit 3. He acknowledged that he served time as shown by Exhibit 2, but that he was framed. With respect to the charge shown in Exhibit 1, Petitioner contends that he was asleep and never authorized his step daughter to sell any of the beer at the filling station he had just bought which, according to Chandler, constituted the basis for the charge.
Findings Of Fact Petitioner previously operated the Casinea Lounge in Waverly, Florida, which he shut down in September, 1980. He plans to reopen this lounge if he can secure the requested beverage license. Petitioner was adjudicated guilty of violating a Polk County ordinance on June 6, 1980, regarding an after-hours sale of an alcoholic beverage. There is no other impediment to grant of this application.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a Final Order granting Petitioner's application. DONE and ENTERED this 8th day of December, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1982.
The Issue Should Respondent’s license to sell alcoholic beverages be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent El-Bireh, Inc., held license number 63-02202, ZAPS, authorizing Respondent to sell alcoholic beverages on the premises of Sam’s Big Apple Number 2, located at 110 Manor Drive, Bartow, Polk County, Florida. Zahieh Awad Awadallah is the sole corporate officer and sole shareholder of El-Bireh, Inc. On January 18, 1997, as a result of a complaint from the City of Bartow, the Department initiated an investigation of Respondent’s premises located at 110 Manor Drive, Bartow, Polk County, Florida, for the sale of alcoholic beverages to persons under 21 years of age. On January 18, 1997, Special Agent Greenlee, along with another Department Special Agent, and Gabriel Shuler, went to Respondent’s licensed premises to investigate the sale of alcoholic beverages to persons under 21 years of age. Gabriel Shuler was born on January 7, 1978, and on January 18, 1997, was 19 years of age. At times pertinent to this proceeding, Shuler was 6 feet 6 inches tall and weighed 270 pounds. Shuler had a valid State of Florida driver’s license in his possession on January 18, 1997. The driver’s license carried Shuler’s correct age, height, and weight. The Department’s special agents present at Respondent’s licensed premises on January 18, 1997, instructed Shuler to enter the premises and attempt to purchase an alcoholic beverage. Shuler was also instructed to produce his driver’s license for identification, if requested, and not to attempt to deceive the clerk as to his correct age. Shuler entered the licensed premises and selected a 16-ounce can of “Budweiser” beer from the cooler inside the premises. Shuler purchased this 16 ounce can of “Budweiser” beer from a person later identified as Zahieh Awad Awadallah, the sole shareholder of Respondent. Sahieh Awad Awadallah did not ask Shuler for any identification or ask Shuler if he was 21 years of age. The 16 ounce of “Budweiser” beer purchased by Shuler from Respondent was in a container labeled “beer” and contained “beer,” an alcoholic beverage. The Respondent has not denied that Shuler purchased the beer. Special Agent Greenlee entered the licensed premises after Shuler and witnessed the sale of the beer to Shuler by Respondent. After purchasing this beer, Shuler exited the premises. Upon Shuler’s exiting the premises, the Department’s Special Agent took custody of the beer. Respondent was subsequently advised of the violations by Special Agent Greenlee and was issued a Notice to Appear by Special Agent Greenlee. There is sufficient evidence to show that Sahieh Awad Awadallah, the sole shareholder of El-Bireh, Inc., d/b/a Sam’s Big Apple Number 2, sold a 16-ounce can of “Budweiser” beer, an alcoholic beverage, to Gabriel Shuler, a person under the age of 21 years, without asking Shuler his age or requesting Shuler to produce identification showing his age to be 21 years. There are no mitigating circumstances which would support a reduction of the standard penalty imposed for the violation alleged in the Administrative Action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a final order be entered finding Respondent guilty of violating Section 562.11(1)(a), Florida Statutes, and for this violation that the Department issue an administrative fine in the amount of $1,000 against Respondent and that Respondent’s alcoholic beverage license number 63-02202, ZAPS, be suspended for a period of 7 days. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997. COPIES FURNISHED: James D. Martin, Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Brandon Rafool, Esquire Post Office Box 7286 Winter Haven, Florida 33883 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 Whether Respondent sold alcoholic beverages in violation of a municipal ordinance concerning the hours of sale of such beverages and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with regulating the sale of alcoholic beverages and tobacco in Florida. Respondent, Ferrell A. Melton and Nora J. Melton, d/b/a Prince Grocery (Respondent), is the holder of Alcoholic Beverage License No. 30-00004, Series 2APS. This license authorizes the Respondent to sell alcoholic beverages on the premises of Prince Grocery, located at 705 West Columbus Drive, Tampa, Florida (licensed premises). Prince Grocery is a neighborhood store. The City of Tampa Code, Article I, Section 3-3, prohibits places within its city limits and licensed by the State of Florida to sell alcoholic beverages after 3:00 a.m. and before 1:00 p.m. on Sunday. On September 21, 1997, Officer Anthony Pullara of the Tampa Police Department was dispatched to Respondent's licensed premises at approximately 3:00 a.m. Officer Pullara was dispatched to investigate complaints that Respondent was selling alcoholic beverages after hours. When Officer Pullara began the investigation of Respondent, he did not immediately go on the licensed premises, but rather positioned himself directly across the street from and facing the licensed premises. This location placed Officer Pullara about 200 feet from the licensed premises and gave him a clear view of the outside of the store and the parking lot. To aid his vision from this distance and to get a view of what was occurring inside the licensed premises, Officer Pullara used binoculars. On Sunday, September 21, 1997, between 3:00 a.m. and 3:55 a.m., Officer Pullara observed several persons enter the licensed premises. In each instance, the person would go to the front door of the premises and then knock on the door. Respondent, Nora Melton, who was inside the premises, would unlock the door and allow the person to come inside. After a short time inside, the patron would leave the premises carrying a brown paper bag that appeared to contain something. Officer Pullara could not see the contents of the bags. However, from the size and shape of the bags, the bags appeared to contain objects about the size of either bottles of beer or a quart of beer. Although Officer Pullara never verified the contents of any of the bags, he suspected that the bags contained beer. At approximately 3:55 a.m. on Sunday, September 21, 1997, George Munoz went to the front door of the licensed premises and appeared to knock on the door. Thereafter, George Munoz entered the premises. From Officer Pullara's vantage point, he observed Respondent and Munoz in the licensed premises appearing to engage in a friendly conversation. Officer Pullara also observed Respondent gather some bags from the front register area and then escort Munoz to the rear of the store. For the brief time Respondent and Munoz were in the rear of the store, they were out of Officer Pullara's view. When they returned to the front area of the licensed premises to the area where the cash register was located, Officer Pullara observed Munoz give something to Respondent. It then appeared to Officer Pullara that Respondent escorted Munoz to the front door and unlocked it so that he could leave. Munoz then exited the licensed premises carrying a brown paper bag. From Officer Pullara's observation's, the transaction with Munoz appeared to be similar to the transactions that Officer Pullara had observed between Respondent and other individuals who had come to the licensed premises between 3:00 a.m. and 3:55 a.m. on this same day. As Munoz was leaving the licensed premises, Respondent came to the front door and she and Munoz continued to engage in a conversation. Due to his position, Officer could not hear what the Respondent and Munoz were saying to each other, but it appeared to him to be a friendly conversation. After Munoz left the licensed premises, he went toward the car from which he had earlier exited. However, prior to getting into the vehicle Munoz pulled down the brown bag and a plastic bag contained therein, revealing two quarts bottles bearing the name "Schlitz Malt Liquor." In describing this event, Officer Pullara testified that "[Munoz] held them up in the air in front of his face, as if showing the other occupant of the vehicle that he had in fact purchased the beer." Officer Pullara then drove his police car into the parking lot of the licensed premises and observed Munoz get into his vehicle with the two quarts of Schlitz Malt Liquor. After Munoz pulled out of the parking lot, Officer Pullara stopped him. Officer Pullara then confiscated the two quarts of malt liquor. After he confiscated the malt liquor from Munoz, Officer Pullara returned to the licensed premises and arrested Respondent Nora Melton for after-hour sale of alcoholic beverages. Respondent was charged with the after-hour sale of alcoholic beverages and resisting an officer. Munoz did not testify at trial and Respondent Nora Melton was subsequently acquitted of the charge related to after-hour sale of alcoholic beverages. As a result of the events of September 21, 1997, Respondent was convicted of resisting arrest although adjudication was withheld on this charge. There is no dispute that, on September 21, 1997, Munoz got two quarts of Schlitz Malt Liquor from the licensed premises. However, Respondent's version of how Munoz came in possession of the malt liquor is at odds with that of Officer Pullara. According to Respondent, a female customer who had been in the licensed premises earlier telephoned Respondent and indicated that Respondent had forgotten to give the customer the cigarettes which she had purchased. Respondent knew this customer. However, when the customer called, Respondent did not recall whether she had given the customer the cigarettes. Nonetheless, Respondent gave the customer the benefit of the doubt and told her that if she came "right now . . . I'll give them to you." After the telephone conversation, the customer arrived at the licensed premises to retrieve the cigarettes. Respondent went to the front door and unlocked it to let the customer in, but did not relock the front door once the customer was inside. After Respondent gave the customer the cigarettes, the customer decided to purchase lottery tickets, which were located on the front counter area of the licensed premises. During the course of these transactions, Respondent and the customer engaged in a casual conversation in the front counter area of the licensed premises. While Respondent and the customer were engaged in conversation, Munoz, who appeared to be drunk, entered the premises through the unlocked front door and then reached around the customer for a bag. Respondent had known Munoz for several years and warned the customer that Munoz was a "dangerous person." As Munoz proceeded to the back of the store where the beer was located, Respondent told him that he could not purchase any beer because it was after 3:00 a.m. Munoz told Respondent, "Wait and see what I do." Munoz continued to the back of the store, moved a barricade that was in front of the beer, and removed two quarts of malt liquor. When Munoz returned to the front of the licensed premises, Respondent ordered him to give her the beer because he was not going to "[take] it outside." Respondent came from behind the counter where she had been standing, got between the customer and Munoz, and tried to grab the beer from Munoz. Munoz refused to give Respondent the beer and began "turning around and swinging the beer at [Respondent]." While Respondent was attempting to take the beer from Munoz, she thought of using a bat to break the beer bottles but decided against doing that for fear that he would hurt her. Respondent's concern for her own safety was based on her knowledge or belief that on an earlier occasion Munoz had broken his girlfriend's arm and "knocked her eye out." Respondent told Munoz that if he left the premises with the beer, she would "charge" him with shoplifting. Despite Respondent's threats and attempts to grab the malt liquor from Munoz, he left the licensed premises with the two quarts of malt liquor. While in the parking lot, Munoz removed or lowered the bag and displayed the two quarts of Schlitz Malt Liquor, by waving it in front of his face. At the time of the investigation which is the subject of these proceedings, Respondent had known Munoz for many years. Although Munoz had been a customer of the licensed premises, Respondent has had problems with him. About six years ago, Munoz gave Respondent a "bad check" which he never paid. Respondent believes that her problems with Munoz are due to his anger toward her because she always asks him about paying the check. On Monday morning, at about 11:00 a.m., September 22, 1997, Respondent went to the police department to file an incident report regarding Munoz taking the malt liquor from the licensed premises. Immediately after filing that incident report, Respondent went to the Internal Affairs Office and filed a complaint against Officer Pullara. The basis of Respondent's complaint against Officer Pullara was that he had mistreated her when he arrested her on September 21, 1997. Petitioner filed the subject Administrative Action against Respondent based on a complaint and report from the Tampa Police Department regarding an alleged violation of a City of Tampa Code provision relating to the hours that alcoholic beverages may be sold. At all times relevant to this proceeding, Respondent Nora Melton stayed at the licensed premises. She began staying there because of the increased number of burglaries occurring on the licensed premises. Respondent usually locked the front door to the premises at about 10:00 p.m., but the business did not close at this time. If someone who Respondent knew came to the front door of the licensed premises after 10:00 p.m., she would open it and let that person come inside to make a purchase. Since the September 21, 1997, incident, however, the shutters to the licensed premises are put down no later than 2:30 a.m. and no customers are allowed into the premises. The testimony of Respondent was credible and was unrebutted by Petitioner. Petitioner acknowledged that George Munoz has a long criminal record dating back to July 10, 1979, with his last arrest listed as July 23, 1997, about two months before the subject incident. The records reviewed at hearing by Agent Thompson reflected only arrests and not the disposition of the arrests. According to the records, Munoz has been arrested for: unlawful use of a weapon; theft; at least three incidents involving the purchase of cocaine; delivery and control of cocaine; disorderly conduct; petty theft; criminal mischief; burglary of a structure; burglary of a dwelling; at least two incidents involving probation violations; escape; domestic assault; domestic battery; at least two incidents of trespass; battery; and trespass of a structure. The record also revealed that a warrant had been recently issued against Munoz for domestic violence, aggravated battery, and driving under the influence. In an Administrative Action signed on June 2, 1998, Respondent was charged with violating a city ordinance relating to the hours that alcoholic beverages may be sold. The matter was disposed of by an informal hearing and Respondent was fined $250.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a Final Order (1) finding that Respondent did not violate Section 561.29(1)(a), Florida Statutes, by selling alcoholic beverages after hours in violation the Tampa City Code; and (2) dismissing the charge in the Administrative Action. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998. COPIES FURNISHED: Thomas D. Winokur Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Nora J. Melton, pro se 705 West Columbus Drive Tampa, Florida 33602 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Miguel Oxamendi, Esquire Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399
Findings Of Fact On December 15, 1981, Petitioner's beverage officer conducted a routine inspection of Respondent's licensed premises. He found a draft beer keg with an embossed Anheurser-Busch label leading to a spigot at the bar labelled "Miller High Life". Petitioner seized the keg and requested that Anheuser-Busch officials test the contents. Their brewers, who are trained beer tasters, established that the keg contained Anheuser-Busch and not Miller product. The evidence was inconclusive as to whether the Respondent or the Miller beer distributor was responsible for the mix-up. However, there was no intentional deception by Respondent and the misrepresentation is determined to have been accidental.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Section 563.03, Florida Statutes (1981), and imposing a civil penalty of $100. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of March, 1982. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1982. COPIES FURNISHED: James N. Watson, Jr., Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301 Earle Bennett, Esquire 2726 College Street Jacksonville, FL 32205
The Issue The issues for determination are whether Respondent, holder of an alcoholic beverage license, sold or permitted the sale of alcoholic beverages to minors on his licensed premises; whether Respondent retained alcoholic beverage invoices or sales tickets for three years in accordance with licensure requirements; and whether Respondent kept cigarette invoices or sales tickets for three years in accordance with licensure requirements.
Findings Of Fact Respondent is David L. Crews, holder of Alcoholic Beverage License No. 55-00162, series 1-APS, for a licensed premises known as Crews Texaco located in Nassau County, Florida. On December 15, 1989, Respondent sold William Christopher Brannan a twelve pack of beer which is an alcoholic beverage. Brannan was 17 years of age at the time Respondent sold him the beer. At the time of the sale, Respondent did not ask for proof of age or any other form of identification from Brannan. Accompanying Brannan on December 15, 1989, were two other teenagers: Robert Terrell Simmons, Jr., and Larry W. Wilkerson. Respondent sold Simmons a case of Busch beer, an alcoholic beverage, at the same time as the sale to Brannan. Simmons was 18 years of age at the time of the sale. Respondent did not ask for proof of age or any other form of identification from either Simmons or Wilkerson. It was common knowledge in the area that Respondent would readily sell alcoholic beverages at a higher than normal price to persons under the lawful age of 21 years. Respondent charged Brannan and Simmons a higher price for the alcoholic beverages purchased by them because he knew they were under the age of 21 years. Brannan, Simmons and Wilkerson had attempted to purchase alcoholic beverages from Respondent earlier in the evening, but Respondent waved them away because law enforcement personnel were investigating a domestic disturbance near his business. Later in the evening of December 15, 1989, after purchasing the alcoholic beverages from Respondent, the three youths were involved in a alcohol related accident and Brannan was killed. On April 30, 1990, Respondent was convicted in Nassau County Court of two counts of providing alcoholic beverages to a minor and paid a fine of $127.50 on each count. He also received a 30 day suspended sentence on each count. On March 9, 1990, agents for Petitioner's Division of Alcoholic Beverages and Tobacco interviewed Respondent about the matter of sale of alcoholic beverages to underage persons and conducted an inspection of his licensed premises. In the course of the inspection, the agents requested that Respondent produce his alcoholic beverage and cigarette invoices. Respondent was unable to produce the invoices and admitted to the agents that he had used the invoices for writing paper and had then thrown them away. Respondent reaffirmed these statements at the final hearing. As of December 20, 1991, Respondent has failed to produce either alcoholic beverage or cigarette invoices. As established by his own testimony at the final hearing, prior to March 9, 1990, Respondent did not maintain either alcoholic beverage or cigarette invoices on the licensed premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered suspending Respondent's beverage license bearing number 55-00162, Series 1- APS, for a period of 40 days and requiring payment of a administrative fine in the amount of $2,000. DONE AND ENTERED this 14th day of January, 1992, 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 14th day of January, 1992. 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.-21. Adopted, although not verbatim. 22.-26.Rejected, unnecessary. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Robin L. Suarez, Esq. Assistant General Counsel Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007 David L. Crews U. S. 1 & 5th Street Hilliard, Florida 32046 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007 Janet Ferris, Secretary Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1000 Richard W. Scully, Director Division of Alcoholic Beverages Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007
Findings Of Fact The Respondents, J. F. Walthier III and Andrew Erickson, are the holders of a current valid beverage license, No. 46-00210, Series 2-APS, held in the name of Walthier, J. F. III and Ericks. This license is for a premises located at 4721 Palm Beach Boulevard, Fort Myers, Lee County, Florida. The Respondents conduct their business at this licensed premises under the name Foam and Fizz. This beverage license series entitled the Respondents to sell a class of alcoholic beverage for consumption off the licensed premises. One of the categories of alcoholic beverages allowed for sale under the terms and conditions of the license is beer. The subject beverage license was issued by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. The Petitioner is charged with the licensure and regulation of the several alcoholic beverage license holders within the State of Florida. In pursuit of its function, the Petitioner has brought an Administrative Complaint/Notice to Show Cause against the named Respondents and the terms and conditions of that complaint may be found in the issue statement of this Recommended Order. The facts in this case reveal that between 9:00 p.m. and 10:00 p.m. on January 25, 1980, three young men under the age of eighteen drove to the licensed premises for purposes of purchasing beer. Once the car was parked, Ira J. Frasure and dames Craig McDowell exited the car. On that date, Ira J. Frasure was seventeen years of age and James Craig McDowell was sixteen years of age. They left Frank Edward Gordon in the automobile, where he would remain during the pendency of the other juveniles' activities in the licensed premises. Once in the store, Frasure retrieved a six-pack of Budweizer beer and McDowell picked up several single cans of Budweizer beer. The beer which had been picked up by the juveniles was presented at the checkout counter to Barbara Joyce Walthier, the wife of one of the licensees and an employee in the licensed premises. At that point, Frasure paid Walthier for the beer from money which he had and money which had been given to him by McDowell. The juveniles then left the store. Neither of the juveniles had been asked for any form of identification prior to the sale of the alcoholic beverages, nor had they been asked about their ages, and they did not make any comment concerning their ages. Frasure's date of birth is September 30, 1962, and at the time of the purchase he was approximately six feet one inch tall and had a mustache. Frasure gave testimony in the course of the hearing and appeared to be eighteen years of age or older at that time. Investigative officers who saw Frasure on January 25, 1980, said they felt he appeared to be less than eighteen years of age. McDowell's date of birth is February 9, 1963, and at the time of the hearing he appeared to be less than eighteen years of age, and this comported with the impression of the investigating officers when they saw him on January 25, 1980. At the time Frasure purchased the beer from the clerk, Barbara Joyce Walthier, she was not busy with other customers to the extent that it would hinder her ability to check the appearance of Frasure and McDowell; however, business on the evening in question had been moderate to heavy at times and she does not remember seeing Frasure and McDowell. Barbara Joyce Walthier was working in accordance with a set of instructions from the licensees, in the person of her husband, to the effect that she should always require written identification prior to purchase from those persons who looked like they should be "carded". Moreover, she had been instructed that those persons who have beards are not normally "carded". Other factors to be considered, per instruction she had been given, were to require written identification from those persons who acted suspiciously while in the store, or who parked a great distance away from the store after driving slowly by. In keeping with these instructions, she routinely requires written identification from patrons. Finally, there was a sign in the licensed premises which stated, "Under age don't ask".
Recommendation In view of the fact that this is a single count violation and in view of the physical appearance of Ira J. Frasure at the time of the alcoholic beverage purchase in question, that appearance leading one to believe that he was eighteen years of age or more, it is RECOMMENDED that the Respondents be required to pay a fine in the amount of one hundred fifty dollars ($150.00) in lieu of suspension or revocation and it is FURTHER RECOMMENDED that if this civil penalty is not paid within thirty (30) days of the rendition of the final order, that the Respondents' beverage license be suspended for a period of fifteen (15) days. DONE AND ENTERED this 20th day of May, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee Florida 32301 (904) 488-9675 COPIES FURNISHED: James N. Watson, Esquire Office of General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Allan Parvey, Esquire 2201 Main Street Post Office Box 2366 Fort Myers, Florida 33902
The Issue The issue presented is whether Respondent Willie Lee Lewis d/b/a LS Lounge is guilty of the allegations contained in the notice of Administrative Action filed against him, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact Respondent Willie Lee Lewis d/b/a LS Lounge is the holder of alcoholic beverage license No. 53-01765, series 2-COP, authorizing him to operate as a vendor of alcoholic beverages. On May 31, 1996, Respondent filed with the Department his Application for Alcoholic Beverage License and Cigarette Permit and its accompanying Personal Questionnaire form. The Personal Questionnaire form contains a question asking if the applicant has ever been arrested or charged with any violation of the law other than minor traffic violations, and, if so, whether the applicant was convicted. Respondent answered "yes" to the first part of the question and "no" to the second part and added a notation that "adjudication was withheld." At the bottom of that series of questions, the form requests full particulars for any "yes" answer and lists the type of information requested, only a portion of which is legible on the copy of the form admitted in evidence. On this portion of the application, Respondent wrote "Martin County Sherifs [sic] Department." On April 14, 1992, Respondent was charged by Information in the Martin County Circuit Court, Case No. 92-352 CFA, with one count of unlawfully selling, delivering, or possessing with the intent to sell or deliver a controlled substance, cocaine. The second count alleged that Respondent unlawfully used or possessed with the intent to use drug paraphernalia, i.e., a razor blade. Respondent pled nolo contendere to count one, possession of cocaine. On December 9, 1992, the Court entered its Order Withholding Adjudication of Guilt and Placing Defendant on Drug Probation, placing Respondent on probation for a period of two years. When Respondent was completing his application for a beverage license, he went to the Department's offices in Martin County on several occasions. Department employees assisted him in completing his application. Respondent was concerned as to whether he was eligible for licensure due to the arrest which resulted in adjudication being withheld. He discussed that concern with the Department's employees in its Martin County office. The lady he spoke with did not know if Respondent could obtain a beverage license if adjudication had been withheld. She telephoned the Department's Tallahassee office regarding that question and then advised Respondent that he was not precluded from licensure. Respondent submitted certified copies of the Information and of the Order Withholding Adjudication of Guilt. The Department issued a beverage license to Respondent in May 1996, and Respondent set up his business. He entered into a lease for the business premises at a cost of $1,000 a month and spent $5,000 to $6,000 renovating the premises. He leased a big- screen T. V. at a cost of $200 a month. He purchased D. J. equipment for $8,000. He purchased inventory, hired employees, and began advertising. It costs Respondent approximately $1,800 a week to operate the business. He has a one-year contract for radio advertising and renewed the lease for his business premises for another year in May of 1997. It is the policy of the Department to determine on a case-by-case basis whether a person who has a criminal history should be given a license. The Department does issue licenses to persons who have been charged with a crime, have pled nolo contendere to those charges, and have had adjudication withheld and been placed on probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent not guilty of the allegations against him and dismissing the notice of Administrative Action. DONE AND ENTERED this 12th day of September, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1997. COPIES FURNISHED: Leslie Anderson-Adams, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Iola Mosley, Esquire Whitfield & Mosley, P.A. Post Office Box 34 West Palm Beach, Florida 33402 Lt. Bob M. Young 800 Virginia Avenue, Suite 7 Fort Pierce, Florida 34982 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Richard Boyd, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399
Findings Of Fact On November 7, 1985, Marcos E. Cardenas, store manager of the Save-A- Step store, the licensed premises operated by the Respondents, DeCardenas and Bates, at 11005 N.E. 6th Avenue in Miami, Florida, under 2APS alcoholic beverage license 23-01862, sold, gave, served or permitted to be served a six- pack of 12 ounce cans of Budweiser beer to E.O., an individual 18 years of age. As a result of this sale, which was observed by Officer Beverly Jenkins, the Respondents were issued an official notice indicating that the offense had taken place and what it was. The purpose of this violation notice is to give the Respondent/licensee a warning of the OABT's policy regarding sale of alcoholic beverages to minors and the laws of the State of Florida prohibiting such activity. Ordinarily a disciplinary charge does not result from a first offense. Somewhat later, on February 5, 1986, however, the Respondents, this time through employee Enrique Mario Ribas, a clerk at the same store, also sold, gave, served or permitted to be served a 12 ounce container of Michelob beer to a 17 year old individual, K.A.W. On this second occasion, the Respondents were served with a final letter of warning indicating that this was the second offense and urging the licensees to strongly and personally address the problem. The licensee was also advised that if he or an employee violated the law for a third time, a Notice to Show Cause would be filed including past violations and as a result, the license would be subject to discipline. Notwithstanding this, on May 28, 1986, Eric William Guzman, a store clerk in Licensees' facility, sold, gave, served or permitted to be served a 12 ounce can of Old Milwaukee Light beer to a 19 year old underage individual, H.M. All three violations took place on the licensed premises and all three constituted a violation of the statutes. As a result of this third violation, and consistent with the terms of the final letter of warning, a Notice to Show Cause was filed alleging all three violations. It is the policy of DABT to impose, for a third offense of this nature, a $1,000.00 fine and a 20 day suspension of the license. There is, however, an opportunity for this penalty to be mitigated and counsel for Petitioner stipulated that a suspension is not always included as an action for violations of this nature. Mitigation activity, however, is that activity shown by the licensee to indicate what efforts he or she has made to prevent repeated actions of the nature involved here. It is not sufficient that the offending employee be discharged upon commission of the offense, though there was no evidence that was done here. Mitigation would be those actions take in advance of the offense, of a prophylactic nature, to insure as best as is possible that future offenses do not occur. Here, according to Sergeant Jenkins, who was present at the first violation, the licensees had displayed no signs or other indications on the licensed premises that individuals under the lawful drinking age would not be allowed to purchase alcoholic beverages. In short, Respondents offered no mitigation evidence to reduce the gravity of the offense. The personal representative's argument will be considered.
Recommendation RECOMMENDED that Respondents' 2 APS alcoholic Beverage license number 23- 01862 be revoked. RECOMMENDED this 15th day of June, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1987. COPIES FURNISHED: Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 W. Douglas Moody Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Rene M. Valdez, pers. rep. 1830 N.W. 7th Street Miami, Florida 33125 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 =================================================================
