The Issue This case concerns the application of William E. Morey, who does business as Morey's Restaurant, to acquire a new series 2-COP beverage license from the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, in which the Respondent has denied the license application on the grounds that the granting of such a license would be contrary to provisions of Section 561.42, Florida Statutes, and Rule 7A-4.18, Florida Administrative Code. These provisions of the Florida Statutes and Florida Administrative Code deal with the prohibition of a financial interest directly or indirectly between distributors of alcoholic beverages and vendors of alcoholic beverages.
Findings Of Fact The Petitioner, Willian E. Morey, applied to the State of Florida, Departent of Business Regulation, Division of Alcoholic Beverages and Tobacco, for the issuance of series 2-COP alcoholic beverage license. By letter dated, January 23, 1979, the Director of the Division of Alcoholic Beverages and Tobacco denied the application based upon the belief that such issuance wood violate the provisions of Section 561.42, Florida Statutes, and Rule 7A-4.18, Florida Administrative Code. The pertinent provision of Section 561.42, Florida Statutes, states: 561.42 Tied house evil; financial aid and assistance to vendor by manufacturer or distributor prohibited; procedure for en- forcement; exception.-- (1) No licensed manufacturer or distributor of any of the beverages herein referred to shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the Beverage Law, nor shall such licensed manu- facturer or distributor assist any vendor by any gifts or loans of money or property of any description or by the giving of rebates of any kind whatsoever. * * * In keeping with the general principle announced in Section 561.42, Florida Statutes, the Respondent has enacted Rule 7A-4.18, Florida Administrative Code, which states: 7A-4.18 Rental between vendor and distri- butor prohibited. It shall be considered a violation of Section 561.42, Florida Sta- tutes, for any distributor to rent any property to a licensed vendor or from a licensed vendor if said property is used, in whole or part as part of the licensed premises of said vendor or if said property is used in any manner in connection with said vendor's place of business. The facts in this case reveal that William E. Morey leases the premises, for which he has applied for a license, from Anthony Distributors, Inc., of 1710 West Kennedy Boulevard, Tampa, Florida. Anthony Distributors, Inc., is the holder of a J-DBW license to distribute alcoholic beverages in the State of Florida. This license is held with the permission of the State of Florida, Division of Alcoholic Beverages and Tobacco. Consequently, the issuance of a series 2-COP license to William E. Morey at a time when he is leasing the licensed premises from a distributor of alcoholic beverages, namely, Anthony Distributors, Inc., would be in violation of Section 561.42, Florida Statutes, and Role 7A-4.18, Florida Administrative Code.
Recommendation It is recommended that the Petitioner, William E. Morey's application for a series 2-COP beverage license be DENIED. DONE AND ENTERED this 10th day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Willian E. Morey d/b/a Morey's Restaurant 4101 North 66th Street St. Petersburg, Florida 33709 Mary Jo M. Gallay, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether or not on or about February 2, 1977, James P. Pope, a licensee under the beverage laws, failed to file application for transfer of said license after a bona fide sale of said business and license was made by James P. Pope to Gary W. Simmons and Anthony W. Speakman contrary to 561.32, F. S. Whether or not on or about February 2, 1977, James P. Pope, licensed under the beverage laws, did allow persons, to wit; Gary W. Simmons and Anthony W. Speakman to assume a direct interest and engage in selling alcoholic beverages prior to filing a sworn application and being approved, contrary to 561.17, F. S. Whether or not on or about February 2, 1977, James P. Pope, licensed under the beverage laws, failed to manage and maintain control of all business conducted on his licensed premises, by allowing Gary W. Simmons and Anthony W. Speakman to take complete control of his premises contrary to Rule 7A-3.17, Florida Administrative Code.
Findings Of Fact The Respondent, James P. Pope, is the holder of license no. 27-526, series 2-COP, held with the Petitioner, State of Florida, Division of Beverage. James P. Pope has held this license from October 1, 1976, up to and including the date of the formal hearing. This license allows the licensee to sell beer and wine for consumption on the licensed premises. The licensed premises is located at 4220 West Fairfield Drive, Pensacola, Florida. The licensee is trading as Tavern on the Mall. On February 2, 1977, agent Daniel J. Cobb, State of Florida, Division of Beverage, went to the Respondent's licensed premises. When he arrived at the licensed premises, he spoke with one Gary W. Simmons. Simmons indicated that he was the new owner of the licensed premises although the transfer of ownership had not been completed. Simmons further indicated that he was in charge of the licensed premises and running the licensed premises. Simmons indicated that he and Anthony W. Speakman had a lease agreement with the licensee, James P. Pope. This lease agreement as shown by Petitioner's Exhibit no. 3, admitted into evidence and made a part of the record, establishes that James P. Pope as lessor entered into a lease agreement with Gary Simmons and Anthony W. Speakman as lessees, in which the lessees would manage the Tavern on the Mall, with the option to buy the business and equipment as soon as the beverage department approved the application for the transfer of the beer and wine license. The lease also indicated that the lessees would receive all the money from the business for managing the business, with the exception of $150 a week which was to be paid to James P. Pope and would go toward the down payment for the licensed premises which would come about at the time of the license transfer. The lease agreement additionally said that the purpose of the Tavern was for dispensing beer and wine. Agent Cobb also discovered the existence of a bank account which Simmons and Speakman had established to operate the business on the licensed premises. In addition, agent Cobb found that a local utility company, Gulf Power, was providing electric power to the licensed premises in the name of Simmons and Speakman. In an interview on February 3, 1977, between Cobb and Pope, the Petitioner's Exhibit no. 3 was presented to agent Cobb to establish the arrangement between Pope, Simmons and Speakman. (This lease was produced voluntarily and the Respondent has cooperated with the Division of Beverage in investigating this matter.) James P. Pope was not running or managing the business at the licensed premises on February 2, 1977, nor has he been managing the business from February 2, up to and including the date of the hearing. Pope only comes to the licensed premises two or three times a week just for purposes of checking up, but not for purposes of management. The facts in this cause do not establish that on or about February 2, 1977, James P. Pope, a licensee under the beverage laws, faced to file an application for a transfer of his license after a bona fide sale of the business located 4220 West Fairfield Drive, Pensacola, Florida, under s. 561.32, F. S. The agreement between James P. Pope and Gary W. Simmons and Anthony W. Speakman is a lease agreement with an option to buy and this is not a bona fide sale of the premises. The facts in this cause do establish that James P. Pope did allow Gary W. Simmons and Anthony W. Speakman to assume a direct interest in the licensed premises and engage in selling alcoholic beverage prior to filing a sworn application and being approved by the Division of Beverage, contrary to s. 561.17, F. S. This is established by the conditions existant on February 2, 1977, in the licensed premises. Finally, the facts as established, show that on February 2, 1977, James P. Pope, licensed under the beverage laws, was not managing and controling all the business conducted on the licensed premises under the beverage law, nor was his authorized employee or employees managing or controlling such business conducted on the licensed premises under the beverage law. Therefore James P. Pope was operating contrary to Rule 7A-3.17, Florida Administrative Code.
Recommendation Based upon the facts as shown, and the violations as established, it is RECOMMENDED: That the Director of the Division of Beverage grant the Respondent, James P. Pope, 30 days from the date of the final order, within which time to effect a legal transfer of his beverage license, license no. 27-526, series 2-COP, to Gary W. Simmons and Anthony W. Speakman or some satisfactory party, after which time if no legal transfer has been achieved, the license held by James P. Pope, license no. 27-526, series 2-COP shall be revoked. DONE AND ENTERED this 15th day of June, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles T. Collett, Esquire Division of Beverage The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 James P. Pope 4220 West Fairfield Drive Pensacola, Florida
The Issue Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, with the intent to sell, a controlled substance; cocaine, and whether said cocaine was sold to one E. Santiago, for the price of $100 in U.S. currency, and whether said sale was consummated at the aforementioned beverage license premises, on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine contrary to Section 893.13, F.S. thereby violating Section 561.29, F.S. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc. d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $100 U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage licensed premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $2,200, U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises, on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. A count seven was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing. A count eight was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing. Whether or not on or about November 20, 1976, a bottle of non-tax paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered on the licensed premises, and whether or not said bottle bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid, contrary to Section 562.16, F.S., thereby violating Section 561.29, F.S. Whether or not on or about September 1, 1976, and continuing until on or about November 24, 1976, the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did maintain a public nuisance, to wit; maintain a place where controlled substances were illegally sold, kept or used, contrary to Section 823.10, F.S., thereby violating Section 561.29, F.S. Whether or not investigation revealed that on or about November 20, 1976, the Respondent, its agent, servant, or employee, did remove, deposit, or conceal a beverage, to wit, one (1) 2,000 cc bottle of Ron Medeliin Rum, with the intent to defraud the state of tax, contrary to Section 562.32, F.S. and Section 562.30, F.S., thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to this complaint the Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, was the holder of a license no. 23-1901, held with the State of Florida, Division of Beverage, and that license was for the premises located at 1601 Collins Avenue Miami Beach, Florida. The management of the licensed premises makes arrangements to hire entertainment in the form of musicians. This arrangement is made through agreement with the band leader. One of these agreements was made with a band leader who had as his band member Leouigildo Hernandez. On September 28, 1976, Officer E. Santiago, of the Miami Beach, Florida, Police Department entered the licensed premises and while in the licensed premises entered into discussion with Hernandez. Hernandez left the bar proper and came back with an amount of a substance known as cocaine. Santiago paid Hernandez $100 for the quantity of cocaine and the sale was consummated in the licensed premises. On October 30, 1976, Officer Santiago returned to the licensed premises. Santiago had been in the licensed premises many times prior to that occasion. Among the persons he had seen in the bar was Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales. Morales was the girlfriend of Anthony Bilbao, one of the principals in the ownership of the licensed premises. Morales had also served Santiago drinks in the bar on more than 50 occasions. On the evening in question, October 30, 1976, discussion was entered into between Santiago and Morales about the purchase of a substance known as cocaine. Morales produced a quantity of the cocaine and reached across the bar that she was standing behind and handed the quantity of the substance cocaine to Santiago, who was in the area where customers were served at the bar. Santiago paid her $100 for the cocaine. In the late hours of November 4 and early hours of November 5, 1976, Santiago again entered the licensed premises, his purpose for going to the licensed premises was to purchase a large quantity of cocaine from Morales. This arrangement had been entered into based upon the sample of cocaine that had been provided him on October 30, 1976. Morales left the licensed premises and returned 3 to 5 minutes later with a quantity of cocaine, for which Santiago paid her $2,200. On one of the above occasions of a purchase of cocaine from Morales, while in the licensed premises, Morales had conferred with Anthony Bilbao. In the course of that conference, Bilbao told Morales to be careful to whom she sold because "you don't know him", meaning Santiago. In the course of an investigation in the license premises on November 28, 1976, a bottle of non-tax-paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered in the licensed premises, which bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid. The size of the bottle was 2,000 cc.
Recommendation Based upon the violations as established in the hearing on the notice to show cause, it is recommended that the license no. 23-1901 held by Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, be revoked. DONE AND ENTERED this 24th day of February, 1977, in Tallahassee ,Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Michael B. Solomon, Esquire Division of Beverage Theodore M. Trushin, Law Office The Johns Building 420 Lincoln Road, Number 600 725 Bronough Street Miami Beach, Florida 33139 Tallahassee, Florida 32304 Nathaniel Barone, Esquire 777 N.E. 79th Street Miami, Florida 33138
The Issue Whether respondent's alcoholic beverage license should be revoked for violating a stipulation stated on the record in a prior license revocation proceeding.
Findings Of Fact Respondent holds alcoholic beverage license no. 16-2337, Series 2-APS and owns and operates Hammer's Package Store, the licensed premises, at 3231-A West Broward Boulevard, Ft. Lauderdale, Florida. In 1981, DABT filed two administrative actions to revoke respondent's alcoholic beverage license pursuant to Section 561.29, Florida Statutes. The charges were, apparently, disputed and a hearing officer requested, since the cases were forwarded to the Division of Administrative Hearings for assignment of a hearing officer. Thereafter, on April 18, 1981, Hearing Officer Robert T. Benton, II, conducted a Section 120.57(1) hearing on the charges. At hearing, both parties were represented by counsel: DABT by James N. Watson, Jr., a staff attorney for the Department of Business Regulation; respondent by Ray Russell, whose address was 200 S. E. 6th Street, Ft. Lauderdale, Florida 33301. At the outset, counsel for both parties advised Hearing Officer Benton that they had reached "an agreement" (P-1, p. 3), thus obviating the need for a hearing on the charges. Counsel then recited, on the record, the terms of their settlement agreement: respondent was given 90-days in which its corporate entity could be sold, with the period beginning to run from March 19, 1981--the next day--and ending on June 16, 1981; when the corporate entity was sold or the 90-day period expired, whichever occurred first, respondent was to surrender its alcoholic beverage license to DABT for cancellation; respondent waived its right to an evidentiary hearing on the charges and to appeal any matters covered by the agreement; and, from the time the corporate entity was sold or the 90-day period for sale expired, no corporate officers, directors, or shareholders of respondent would again engage in the alcoholic beverage business, make any application for a beverage license, apply for transfer of a beverage license, or hold an interest in any business involved in the sale or distribution of alcoholic beverages. (DABT Ex. 1, p. 5-8). Without objection from respondent's counsel, DABT's counsel described the consent order (or settlement agreement) as "in the nature of a final administrative action and [respondent] acknowledges that its failure to abide by such would subject him to the provisions of Florida Statutes 120.69 (P-1, p. 6). Although this settlement agreement was effective and began to operate immediately (the 90-day period for sale commenced the next day) DABT's counsel contemplated that a written and signed consent order embracing the terms of the settlement agreement would be subsequently issued. Although such follow-up action was intended, it never occurred. DABT never issued a written order, consent or otherwise, embracing the terms of the settlement agreement. Hearing Officer Benton and, at least one party, thereafter relied on the settlement agreement. The hearing officer closed both Division of Administrative Hearings files, and DABT no longer prosecuted respondent under the pending charges. Since June 16, 1981, the expiration of the 90-day period provided in the agreement, respondent has continued to operate its licensed alcoholic beverage premises, has failed to sell its corporate entity, and has failed to surrender its alcoholic beverage license. Respondent has presented no evidence justifying or excusing its failure to surrender its alcoholic beverage license to DABT for cancellation on or before June 16, 1981. Neither does it seek to withdraw from or set aside the settlement agreement.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be revoked. DONE and ENTERED this 26th day of May, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1983.
The Issue Whether or not on or about the 14th of March, 1976, Pearlie Mae Smith, a licensed vendor, did have in her possession, permit or allow someone else, to wit: Junior Lee Smith, to have in their possession on the licensed premises, alcoholic beverages, to wit: 5 half-pints of Smirnoff Vodka, not authorized by law to be sold under her license, contrary to s. 562.02, F.S.
Findings Of Fact On March 14, 1976, and up to and including the date of the hearing, the Respondent, Pearlie Mae Smith, held license no. 72-65, series 2-COP with the State of Florida, Division of Beverage. The licensed premises is located at 1013 West Malloy Avenue, Perry, Florida. On the morning of March 14, 1976, Officer B.C. Maxwell with the State of Florida, Division of Beverage acting on an informant's information, searched the informant to determine if the informant had monies other than the money that the officer had given him or any alcoholic beverages on his person. Once the informant had been searched and it was determined that the informant was carrying with him only the money that the officer had given him to purchase alcoholic beverages, the informant was sent into the subject licensed premises. The informant returned with a half-pint bottle of alcoholic beverage not permitted to be sold on the licensed premise and indicated that this purchase was made from one Junior Lee Smith. Later in the morning, around 11:30, officers of the State of Florida, Division of Beverage entered the licensed premises and an inspection of those premises revealed a bag containing 5 half-pint bottles of Smirnoff Vodka in the kitchen area of the licensed premises. This bag and contents were admitted as Petitioner's Exhibit #2. The 5 half-pint bottles of Smirnoff Vodka are alcoholic beverages which are not allowed to be sold under the series 2-COP license on the subject premises. When the officers entered, the same Junior Lee Smith was in the licensed premises and indicated that he was in charge of the licensed premises and had been selling alcoholic beverages for "quite some time" together with his wife, Pearlie Mae Smith, the licensee. The bag he indicated, had been whiskey that had been left over from the night before.
Recommendation It is recommended that based upon the violation as established in the hearing that the licensee, Pearlie Mae Smith, have her beverage license suspended for a period of 30 days. DONE and ENTERED this 19th day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Larry D. Winson, Esquire Staff Attorney Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Mrs. Pearlie Mae Smith 1013 West Malloy Avenue Perry, Florida
Findings Of Fact The Respondent, Cornelia T Brown, doing business as the Oasis Restaurant Bar and Lounge, is the holder of beverage license No. 45-356, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located on Douglas Road, Groveland, Florida. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has its responsibility the licensure and regulation of beverage license holders in the State of Florida. On June 12, 1980, pursuant to a search warrant, Lake County Sheriff and Groveland Police officials accompanied by Petitioner's Beverage Officer, conducted a search of the licensed premises. Respondent was present throughout the investigation. Among the items seized as suspected controlled substances were seven plastic baggies and eight small manila envelopes containing a total of 52.1 grams of cannabis. Currency in the amount of $2,273,67 was also seized. The cannabis and currency were contained in a purse belonging to Respondent. The purse was discovered in the kitchen of the licensed premises, an area not open to bar/restaurant patrons or other members of the public.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2 and 4. It is further RECOMMENDED that County 3, which duplicates County 2, and Count 5, be DISMISSED. It is further RECOMMENDED that Respondent's License No. 45-356 be REVOKED. DONE AND ENTERED this 30th day of September 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September 1981. COPIES FURNISHED: Cornelia T. Brown Route 1, Box 350-7 Groveland, Florida 32736 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Seminole Park and Fairgrounds, Inc., holds alcoholic beverage license number 69-255, Series 12, RT, which licensed premises is located at Seminole Greyhound Park, a greyhound racing facility in Casselberry, Florida. The officers of this corporation who are accused of filing false personal questionnaires with Petitioner are Paul Dervaes, Jack Demetree, William Demetree and Ernest Drosdick. Paul Dervaes and William Demetree also filed a certificate of incumbency and stock ownership which is also alleged to have been false. The principal issue concerns the involvement of John Fountain in the affairs of Seminole Park and Fairgrounds, Inc. Fountain is a convicted felon who was adjudicated guilty of bookmaking in the Jacksonville Federal District Court in October, 1972. The principal parties to this matter, Paul Dervaes, Jack and William Demetree and Ernest Drosdick knew from the outset that John Fountain was a convicted felon ineligible for licensing in this state under either the pari- mutuel or beverage laws. John Fountain conceived the idea of acquiring Seminole Park and Fairgrounds, Inc., a money-losing harness racing facility, and obtaining necessary legislation to convert the facility to greyhound racing. Fountain first brought this idea to his long-term friends and business associates, Jack and William Demetree, in the mid to late 1970's. Fountain also initiated the involvement of another longtime friend, Paul Dervaes, as President of Seminole Park and Fairgrounds, Inc. When the enterprise was short of cash in late 1978 and early 1979, Fountain made successive loans of $152,000 and $169,499.82 to the corporation through Paul Dervaes for use in converting and operating Seminole Park. When the necessary legislation was passed to convert to a greyhound facility, John Fountain, for several months, worked long hours without any salary as head of the physical conversion project for the Demetrees. Fountain originated the Super 8 betting feature at Seminole Park, one of the cornerstones of the track's promotion and publicity endeavors. Fountain also, after the conversion was complete and the facility was opened for business, authorized complimentary meals and drinks at the licensed premises at Seminole Park and authorized petty cash disbursements for a wedding present for a newspaper reporter and the distribution of gasoline without charge from Seminole Greyhound Park's fuel tanks. On March 31, 1980, Paul Dervaes, who at the time held 53 percent of the outstanding stock of Seminole Greyhound Park, sent a memo to William Demetree and sought to extricate himself from a managerial position at the track on the basis that the Demetrees appeared not to be satisfied with his managerial abilities. In this memo, Dervaes identified himself as a minority stockholder of the enterprise, despite his then ownership of a majority of 53 percent of the shares of stock. Respondent has sought to explain such incongruity by candidly admitting that Dervaes was fronting for John Fountain as to 43 shares or 43 percent of the stock in Seminole Park. As this time, Ernest Drosdick, who had for years handled all legal affairs for Seminole Park as well as for William Demetree, advised Dervaes and Jack and William Demetree that the loans to Seminole from John Fountain through Paul Dervaes had to be repaid so that the involvement of Fountain could be terminated. Drosdick's advice was predicated on Fountain's felony conviction and he noted that Fountain's continued involvement in such manner would be violative of the pari-mutuel and beverage licensing laws. The corporation thereupon obtained $321,499.82 in early April of 1980, such sum being the total of the principal but not interest due on the $152,000 and $169.499.82 loans made from John Fountain to Seminole Park through Paul Dervaes. Drosdick's advice was not consistently applied, however, with regard to recalling the loans from John Fountain. The $321,499.82 was paid by check to Paul Dervaes on April 1, 1980, which Dervaes deposited in his bank account. William Demetree then asked Dervaes if $160,000 of the funds just paid him could be borrowed back from Fountain despite Drosdick's advice against such loans. The re-loan was agreeable with Fountain and on April 9, 1980, Dervaes wrote a check in the amount of $160,000 back to Seminole Park and Fairgrounds, and on April 21, repaid the remaining $161,499.82 to Fountain. The $160,000 loan was reflected in an April 9, 1980, note signed by William Demetree as Chairman of Seminole Park and Fairgrounds, Inc. It was also acknowledged by William Demetree that he knew the money was coming from John Fountain. It is this loan, which was repaid as to principal only in November of 1980, that was not reflected on the personal questionnaires of each of the principal parties. At the time the April 9, 1980, $160,000 loan was made by Fountain to Seminole Park through Dervaes, all of the principal parties, Paul Dervaes, Jack and William Demetree and Ernest Drosdick, knew that John Fountain was a convicted felon and knew that his involvement through loans would be impermissible under pari-mutuel and beverage licensing statutes. It was established that the $160,000 loan was not listed on the personal questionnaires filled out in July of 1980, by each of the aforementioned individuals despite the clearly expressed directive of such questionnaire forms, which states: List the total amount and sources of money you personally are investing in the proposed operation. Also, list any persons, corporations, partnerships, banks, and mortgage companies who have or will invest or lend money in the proposed operation. Immediately prior to the applicant's signature line on the personal questionnaire form is the following statement: I swear or affirm under penalty of perjury as provided for in Florida Statute 837.06 that the foregoing information is true to the best of my knowledge, and that no other person, persons, firm or corporation, except as indicated herein, has an interest in the alcoholic beverage license for which these statements are made. Immediately under the signature line is a boxed-in passage entitled "WARNING" with the word "warning" capitalized and underlined and the following: Read carefully, this instrument is a sworn document. False answers could result in criminal prosecution, subject to fine and/or imprisonment. The principal parties seek to excuse their failure to include the Fountain loan on their personal questionnaires by claiming that Drosdick, who is now deceased, was unaware of the $160,000 loan, that he filled out the questionnaires for them and that they merely signed them under oath and attested to their veracity without reading them. This testimony is not credible in view of the material, self-serving omission made on these questionnaires. Therefore, Respondent's agents, who are experienced businessmen, must be held responsible for their sworn statements. The principals have also sought to excuse their conduct on the basis that any matters which transpired between John Fountain and Paul Dervaes in connection with the loan were personal matters between Dervaes and Fountain and thus immaterial to the corporation. However, this theory avoids recognizing that personal questionnaires were submitted by four individuals and not by the corporate entity. It was established that each of the four individuals had knowledge of the $160,000 loan in question and thus were required to list such loan on their personal questionnaires. It was Fountain who conceived the idea of conversion, who supplied the capital necessary to effectuate the conversion, who without salary headed the physical conversion of the facility and who after the opening of the track authorized the expenditure of funds and the giving of certain gratuities at the track. Fountain was clearly and intimately involved with the overall success of the track. Indeed, the original loans in the amount of $152,000 and $169,499.82 from Fountain called for the payment of 10 percent interest and the $160,000 loan called for the payment of 15 percent interest, none of which has ever been paid. Such interest, as of September 30, 1982, had accrued in the amount of $15;173. Dervaes acknowledged that such interest was but a "paper transaction" in that the principal parties and Fountain all knew and agreed that Fountain would not be paid until such time as the track paid Dervaes the interest. Consequently, Fountain has held with the full knowledge of all the principal parties, an impermissible pecuniary interest in the licensed facility which continues to the present time. The Certificate of Incumbency and Declaration of Stock Ownership submitted as part of the beverage license application process was likewise incorrect. It reflected Jack and William Demetree as 50 percent each owners of Seminole Park and Fairgrounds, Inc. when, in fact, the separate corporate entity Seminole Greyhound Park, was the sole stockholder of this corporation. Such document was signed by William Demetree and certified as being true and correct by Paul Dervaes under oath. William Demetree and Paul Dervaes attempt to place the blame on Drosdick for improperly preparing the document. However, they signed this document and cannot avoid responsibility for their sworn statements.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's alcoholic beverage license no. 69-255. DONE and ENTERED this 23rd day of November, 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 23rd day of November, 1982. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Steven A. Werber, Esquire 2000 Independent Square Jacksonville, Florida 32202 Charles A. Nuzum, 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
Findings Of Fact The Respondents, Thomas Olhausen and Henry Stripling, d/b/a Trackside Lounge, hold Beverage License No. 23-1647, Series No. 4-COP, which was issued for the current year. On or about June 5, 1983, the Respondent Thomas Olhausen sold a controlled substance, namely cocaine, to Beverage Officer Terminello while he was on the licensed premises known as Trackside Lounge in Dade County, Florida. On or about June 8, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Dodson while he was on the Trackside Lounge premises. On or about June 12, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Terminello while he was on the premises of Trackside Lounge. The Respondent Henry Stripling did not go onto the Trackside Lounge between the dates of March 10 and June 10, 1983, pursuant to a restraining order issued on March 10, 1983, by the Dade County Circuit Court. This March 10, 1983, court order appointed two receivers to supervise the operation of the business known as Trackside Lounge. Pursuant to this authority the receivers employed Thomas Olhausen to operate and manage the business. Thus, Thomas Olhausen was not subject to the restraining order which barred Henry Stripling from entry onto the Trackside Lounge premises. The Respondent Henry Stripling had no connection with the sale of cocaine by the Respondent Thomas Olhausen to the Beverage Officers on June 5, 8 and 12, 1983. The court order of March 10, 1983, did not attempt to effect a judicial transfer of the beverage license held by the Respondents. The court appointed receivers did not file an application for a beverage license pursuant to Section 561.17, Florida Statutes, and there is no evidence that the receivers attempted to transfer the beverage license held - by the Respondents pursuant to Section S61.32(1)(a) and (b), Florida Statutes, or Section 7A-2.06(6), Florida Adminstrative Code. The court appointed receivers did not file a certified copy of the order appointing them as receivers with the Division of Alcoholic Beverages and Tobacco pursuant to Section 7A-2.06(6), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the alcoholic beverage license held by the Respondents, Thomas Olhausen and Henry Stripling, being number 23-1647, Series No. 4-COP, be revoked. THIS RECOMMENDED ORDER entered this 26th day of July, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1983. COPIES FURNISHED: William A. Hatch, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Mark A. Jacobs, Esquire 18204 Biscayne Boulevard North Miami Beach, Florida 33160 Richard F. Hayes, Esquire Suite 20 4601 Ponce de Leon Boulevard Coral Gables, Florida 33146 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Eugene Willner is the corporate officer and sole stockholder of G.W. Liquors of Broward, Inc., d/b/a Case Deliveries, and G.W. Liquors of Collier, Inc., d/b/a Discounted by the Case. On August 27, 1980, Eugene Willner entered a plea of guilty in the United States District Court for the Eastern District of Louisiana to a violation of Title 21, United States Code s. 963, Conspiracy to Import Marijuana. Based upon his plea he was convicted and sentenced to two years of imprisonment, and a fine of $5000 was imposed. Willner had never before been convicted of any offense, nor has he been convicted of any offense subsequent to the 1980 conviction. Other than the 1980 conviction, Willner has a reputation of good moral character in his community. On July 8, 1983 Willner received a Certificate of Restoration of Civil Rights which provided, in relevant part, that he ... is restored to all civil rights in this State, except the specific authority to possess or own a firearm, lost by reason of any and all felonies this person may have been convicted of in another state, federal, or military court . In early 1987, the Petitioner corporate entities controlled by Willner applied for new quota alcoholic beverage licenses. Those applications disclosed Willner's 1980 conviction and his 1983 restoration of civil rights. On October 28, 1987, Respondent denied the applications. Of the 8500 licensed alcoholic beverage premises in Dade and Monroe Counties, only approximately 20 to 25 (or approximately one-quarter of one percent) are experiencing a problem with narcotics.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered approving Petitioners' applications for alcoholic beverage licenses. DONE and RECOMMENDED this 28th day of June, 1988, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-5565 & 87-5566 Petitioners' proposed findings of fact numbered 1-5 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-4 have been adopted either verbatim or in substance in this Recommended Order. Respondent's unnumbered proposed finding of fact has been rejected as being irrelevant to the issues under consideration herein for the reasons set forth in this Recommended Order. Additionally, that proposed finding of fact contains phrases which are not supported by the evidence in this cause. Respondent's proposed finding of fact numbered 5 has been rejected as not constituting a finding of fact but rather as constituting background information forming the basis for Respondent's proposed agency action in this cause. Respondent's proposed findings of fact numbered 7 and 6, respectively, have been rejected as not constituting findings of fact but rather as constituting argument of counsel and recitation of the testimony. COPIES FURNISHED: C. I. Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Bruce Rogow, Esquire 2097 S.W. 27th Terrace Fort Lauderdale, Florida 33312 W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Sy Chadroff, Esquire 2700 S.W. 37th Avenue Miami, Florida 33133 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Respondent committed the offenses set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent was licensed by Petitioner, having been issued license number 60-01280, Series 1- APS. No dispute exists that such license permits Respondent to make packaged sales of beer and wine at its establishment. Respondent's last known address is 148 West Avenue A, Belle Glade, Florida. Respondent's establishment is a convenience store. On or about April 17, 2002, Jeremiah Alexander Maxie went to Respondent's establishment for the specific purpose of attempting to purchase beer. Mr. Maxie is employed as an investigative aide for Petitioner. At the time that he visited Respondent's establishment, Mr. Maxie was under 21 years of age; he was 17 years of age, having been born on August 10, 1984. Mr. Maxie did nothing to alter his appearance in an attempt to affect his age. Mr. Maxie attempted to purchase beer at twelve other locations on April 17, 2002. He was paid $35 by Petitioner for that day. Mr. Maxie entered Respondent's establishment at approximately 4:50 p.m. Shortly thereafter, approximately 20 seconds later, Petitioner's Special Agent Danny Stoops, who was undercover, entered Respondent's establishment. Agent Stoops observed the actions of Mr. Maxie. Agent Stoops is a 24-year veteran with Petitioner. He gave Mr. Maxie instructions as to what to do. Agent Stoops instructed Mr. Maxie to attempt to purchase a Budweiser product and, if the clerk requested identification, for Mr. Maxie to politely set the beer down and leave. Mr. Maxie proceeded to the rear of Respondent's establishment to the coolers. He removed a can of beer, a Budweiser product, and proceeded to the cash register. At the time of hearing, Mr. Maxie could not recall the particular type of Budweiser product. Agent Stoops observed Mr. Maxie proceed from the coolers to the cash register although he did not observe the product that Mr. Maxie had obtained. Mr. Maxie gave the cashier/clerk, Armando Rodriguez, who is Respondent's owner, U.S. Currency as payment for the beer. Mr. Rodriguez placed the Budweiser product in a paper bag and gave Mr. Maxie a receipt, but Mr. Maxie did not look at the receipt. Mr. Maxie departed Respondent's establishment. At the time of hearing, Mr. Maxie could not recall the denomination of currency that he gave to Mr. Rodriguez or the amount that he had paid for the beer. Agent Stoops observed Mr. Maxie give Mr. Rodriguez the currency but did not observe the denomination. Agent Stoops departed Respondent's establishment approximately 15 to 20 feet behind Mr. Maxie. When they were outside, the purchased Budweiser product was given to Agent Stoops by Mr. Maxie. Both Agent Stoops and Mr. Maxie initialed the paper bag into which Mr. Rodriguez had placed the Budweiser product. Agent Stoops placed the Budweiser product in an evidence bag, tagged it with an evidence receipt bearing a control number, and secured the bagged evidence in the trunk of his vehicle. Agent Stoops removed the bagged evidence from the trunk of his vehicle and placed it in Petitioner's evidence vault. For hearing, Agent Stoops retrieved the bagged evidence from the evidence vault. The Budweiser product presented at hearing was a can of Bud Light Beer, which was still in the paper bag in which the beer was placed at the time of purchase. No challenge to the chain of custody of the can of beer was made and no problem exists as to the chain of custody of the can of beer. No receipt for the purchase of the Budweiser product was included in the bagged evidence. Agent Stoops could not independently recall that a receipt was presented to him by Mr. Maxie. Respondent entered into evidence cash register receipts for April 17, 2002, which do not reflect the purchase of any alcoholic beverage. However, the cash register receipts reflect, among other things, "taxable" and "grocery" items, not the particular items themselves, and "meat"; thereby, the cash register receipts differentiate only between "grocery" and "taxable" and "meat" items. Further, the cash register receipts are numbered 058616 through 058619, with times of day reflecting 16:05 through 16:09, and 058624 through 058627, with times of day reflecting 16:46 through 16:52. Not included in the cash register receipts are receipts numbered 058620 through 058623, with times of day reflecting 16:10 through 16:45. With the missing numbered-cash register receipts included, a total of 12 transactions were completed, but only eight transactions were offered and admitted into evidence. No explanation was presented for the missing eight transactions. Taking into consideration the overwhelming evidence of the purchase of the Budweiser product by Mr. Maxie, not having a receipt is insufficient to show that the beer-purchase transaction did not occur. Moreover, the evidence is clear and convincing that the beer-purchase transaction did occur. The product purchased at Respondent's establishment by Mr. Maxie was a can of beer, a Budweiser product, a Bud Light. At the time of hearing, Mr. Rodriguez was 76 years of age and had owned Respondent's establishment for 36 years. He is Respondent's agent. Mr. Rodriguez speaks Spanish. At the time of hearing, an interpreter was provided for him. Mr. Rodriguez denies that he saw Mr. Maxie in Respondent's establishment and denies that he sold any beer to Mr. Maxie. Mr. Rodriguez failed to realize to whom he sold the can of beer. At the time Mr. Maxie purchased the can of beer from Respondent's establishment, Mr. Rodriguez was engaged in a conversation with another gentleman. Mr. Rodriguez did not ask Mr. Maxie any questions or ask for his identification. Mr. Maxie said nothing to suggest that he was 21 years of age or older. As a matter of fact, no evidence was presented that any conversation took place between Mr. Maxie and Mr. Rodriguez. The evidence further suggests that Mr. Rodriguez paid very little attention to Mr. Maxie even at the time of the purchase of the beer. Mr. Rodriguez did not knowingly and willfully sell the can of beer to a minor, i.e., Mr. Maxie. Mr. Rodriguez was negligent and failed to exercise reasonable diligence in preventing the sale of the can of beer to Mr. Maxie. No prior disciplinary action has been taken against Respondent by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a final order: Finding that Lake Supermarket, Inc., d/b/a Lake Supermarket, violated Subsection 562.11(1)(a), Florida Statutes; Imposing a fine of $1,000.00 payable within a time deemed appropriate; and Suspending the license of Lake Supermarket, Inc., d/b/a Lake Supermarket, for seven days. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of December, 2002. COPIES FURNISHED: Chad D. Heckman, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Valentin Rodriguez, Jr., Esquire Valentin Rodriguez, P.A. 318 Ninth Street West Palm Beach, Florida 33401 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Peter Williams, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Danny Stoops, Agent Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 400 North Congress Avenue, No. 150 West Palm Beach, Florida 33401
