Findings Of Fact The parties stipulated and agreed that Grace Industries, Ltd., Inc. held License No. 26-1488 on or about September 25, 1975 and October 16, 1975. The parties entered into a stipulation that the facts alleged in the Administrative Complaint were true and accurate. Therefore, the facts are established, that on or about the 25th of September, 1975, the Respondent, its agent, servant or employee did unlawfully sell alcoholic beverages, to wit: one case of Black Horse Ale, to a licensed vendor, Tom Relaford's Liquors, License No. 26-944, 4-COP, while such vendor was on the delinquent "no sale" list issued by the Division effective July 16, 1975. The stipulation further established that on or about the 16th of October, 1975, the Respondent, its agent, servant or employee did unlawfully sell alcoholic beverages, to wit: two cases of assorted wine, to a licensed vendor, Tom Relaford's Liquors License No. 26-944, 4-COP, while such vendor was on the delinquent "no sale" list issued by the Division effective July 16, 1975. The word "Division" as used in this statement of fact refers to the Division of Beverage.
Recommendation The permit held by the Respondent, Grace Industries, Ltd., Inc., is a new permit and offenses as set forth in the Complaint under consideration are the first offenses by the Respondent. The parties have stipulated that the undersigned may make conclusions of law and a recommendation, notwithstanding the lack of disputes in fact. Furthermore, the Petitioner's attorney had indicated that it would not recommend any imposition of sentence more than a civil penalty, not to exceed $150.00 and that it would be counsel for the Petitioner's suggestion that the Director of the Division of Beverage abide by the undersigned's recommendation. It is therefore RECOMMENDED that the Director of the Division of Beverage assess a fine in the amount of $100.00 against the licensee, Grace Industries, Ltd., Inc. DONE and ENTERED this 23rd day of August, 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: Charles F. Tunnicliff, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Dennis Katz, President Grace Industries, Ltd., Inc. 2410 Silver Street Jacksonville, Florida 32207
Findings Of Fact On June 6, 1978, Jack Morrissette, as President of Sorel Corporation, Inc., d/b/a Le Spot Restaurant, signed an Application for New Alcoholic Beverage License, a form required by the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. In that Application, Mr. Morrissette swore that no persons were directly or indirectly interested in the business other than he as President, Lise Proulx as Secretary, and Michel Berard as Treasurer. As part of that Application, Personal Questionnaires were executed by all three officers. Mr. Morrissette's questionnaire stated that he, Lise Proulx, and the First National Bank of Greater Miami were investing $10,000 each in the proposed operation. Mrs. Proulx's questionnaire stated that she and Mr. Morrissette were investing $10,000 each in the proposed operation. Mr. Berard's questionnaire stated that he was making no personal investment in the proposed operation. All three questionnaires contained signed affidavits that no other person possessed any interest in the proposed operation, or in the alcoholic beverage license. In conjunction with the Application, a Declaration of Stock Ownership was filed, which Declaration certified that as of June 2, 1978, Morrissette, Proulx, and Berard were the only officers, directors, and stockholders of the Respondent corporation. This form indicated that Mr. Berard possessed a forty percent interest in the stock of the Corporation, although his Personal Questionnaire had certified that he was making no investment in the business. On June 2, 1978, the Board of Directors of Sorel Corporation passed a Corporate Resolution designating Jefferson National Bank at Sunny Isles as the Corporation's bank. That Corporate Resolution indicated that Marcel Salvail was a director of Sorel Corporation and an authorized signature regarding the Corporation's bank account. A copy of a Canadian Bank Draft made payable to Marcel Salvail in the amount of $4,000 was obtained from the Sorel Corporation's account at Jefferson National Bank at Sunny Isles. Melvin M. Lubar, a Certified Public Accountant, met with Marcel Salvail and Jack Morrissette on May 24, 1978, for the purpose of negotiating a lease for the proposed restaurant premises. On August 2, 1978, Mr. Lubar again met with Jack Morrissette, Lise Proulx, and Marcel Salvail regarding bookkeeping aspects of the proposed new business. Mr. Lubar was aware that Mr. Salvail's name would net appear on any records, although he was active in the Corporation for the reason that he understood Mr. Salvail to have some type of problem with the Immigration and Naturalization Service. On January 17, 1979, Mr. Salvail was ordered deported from the United States based upon conviction of crimes involving moral turpitude prior to his entry into the United States. Mr. Salvail's appeal of that Order was dismissed on July 3, 1979. The Application for New Alcoholic Beverage License, the Personal Questionnaires, and the Declaration of Stock Ownership were all filed with the State Beverage Department on September 7, 1978.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: License No. 23-472 issued to Sorel Corporation, Inc., d/b/a Le Spot Restaurant, be revoked. RECOMMENDED this 22nd day of April, 1980, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James N. Watson, Jr., Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. John Harris Division of Alcoholic Beverages and Tobacco Department of Business Regulation Post Office Box 015269 Miami, Florida 33101 Le Spot Restaurant 19355 Collins Avenue Miami Beach, Florida 33165 Mr. Jack Morrissette 1650 N.E. 150th Street North Miami, Florida 33181 Mr. Charles A. Nuzum Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street, Johns Bldg. Tallahassee, Florida 32301
The Issue The issue presented here concerns the accusation by the Petitioner directed to the Respondent that the Respondent, on or about January 24, 1980, did unlawfully have in her possession or permit or allow someone else to have in their possession, namely, Anthony Lewis Graham, alcoholic beverages, to wit: one partial quart bottle of Smirnoff Vodka, one partial quart bottle of Gordon's Gin and one 200 ml bottle of Gordon's Gin, on the licensed premises and it is further alleged that the substances were not authorized by law to be sold under the Respondent's license, contrary to Section 562.02, Florida Statutes.
Findings Of Fact The Petitioner in this action is an agency of the State of Florida which has as its purpose the regulation of those several licensees who sell alcoholic beverages and tobacco products in the State of Florida. The Respondent, Estelle Collins, is the holder of an alcoholic beverages license issued by the Petitioner, License No. 26-00766, Series 2-APS. This license allows the Respondent to sell beer and wine to be consumed off the licensed premises. The license is issued for the Respondent's premises located at 1152 East 21st Street, Jacksonville, Florida, where the Respondent trades under the name 21st Street Grocery. On January 24, 1980, Anthony Lewis Graham, one of the Respondent's patrons in her licensed premises, removed a box from his automobile which was parked on the street in the vicinity of the licensed premises. He carried the box which contained a partially filled quart bottle of Gordon`s Gin; a partially filled quart bottle of Smirnoff Vodka and a partially filled 200 ml bottle of Gordon's Gin into the licensed premises. These bottles contained liquor, that is, alcoholic or spiritous beverages that were not authorized to be sold at the licensed premises under the terms and conditions of the license issued to the Respondent. The box containing the liquor was carried in while an employee of the Respondent was working in the licensed premises and placed behind the meat counter. The box was left with the top opened. It is not clear whether the employee saw the bottles in the box prior to a routine premises inspection conducted by officers with the Division of Alcoholic Beverages and Tobacco. The inspection took place shortly after Graham had brought the alcoholic beverages into the licensed premises. When the officers entered the premises, they identified themselves to the employee working in the store and this employee left to get the licensee. The employee returned with the Respondent, Estelle Collins, and the officers commenced inspection of the premises. In the course of that inspection, they discovered the aforementioned bottles of alcoholic beverages in the box. They also noted other empty liquor bottles in the area of the meat counter and the service counter within the licensed premises. (There had been another occasion in February, 1979, when the Petitioner's officers had discovered empty gin and vodka bottles in the licensed premises, and this former situation brought about a citation to the Respondent but no penalty action was taken against the Respondent.) No testimony was developed on the matter of the instructions which the Respondent had given to her employees on the subject of keeping unauthorized forms of liquor out of the licensed premises. The only remark which was established by the hearing dealing with the question of keeping those items away from the licensed premises was a statement by Graham, who said that it was not unusual for him to go behind the service counter in the licensed premises. Following this inspection and the discovery of the alcoholic beverages, to wit: liquor bottles in the box, the Petitioner brought the present action against the Respondent.
Recommendation It is RECOMMENDED that the Notice to Show Cause/Administrative Complaint accusation placed against the Respondent, Estelle Collins, d/b/a 21st Street Grocery, License No. 26-00766, Series 2-APS, be DISMISSED. DONE AND ENTERED this 4th day of September, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1980. COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. Kennedy Hutcheson, Esquire 341 East Bay Street Jacksonville, Florida 32202
The Issue Should Respondent's alcoholic beverage license 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 times pertinent to this proceeding, Respondent held alcoholic beverage license No. 63-02541, series 2APS, for an establishment known as Green and White Texaco (the licensed premises), located at 3501 Cleveland Heights Boulevard, Lakeland, Florida. The Department opened an investigation of the licensed premises after an arrest was made by the Lakeland Police Department related to alleged sales of alcoholic beverages to underage persons by Respondent's employees. James Carl Clinard was identified as the underage Investigative Aide No. 97032 in the Administrative Action filed against Respondent by the Department. On December 5, 1997, James Carl Clinard was 18 years of age (date of birth May 23, 1979) and his appearance on December 5, 1997, was that of a person under 21 years of age. On December 5, 1997, Clinard was working with Officer Leron Strong and Lt. Nelson in an attempt, as an underage Investigative Aide, to purchase an alcoholic beverage from the licensed premises. Before beginning work on December 5, 1997, Clinard was instructed by Strong and Nelson that he was not to attempt to deceive anyone as to his age or appearance. Clinard's identification (a valid State of Florida driver's license which indicated his age to be 18 years) was checked by Lt. Nelson and Officer Strong and found to be legitimate. Clinard's photograph on his identification and his appearance on December 5, 1997, were similar and not misleading as to his age listed on his identification. Clinard was only allowed to carry into the licensed premises his identification and the money furnished by the Department for the purchase of the alcoholic beverage. Sometime around 6:20 p.m. on December 5, 1997, Clinard entered Respondent's licensed premises. Both Strong and Nelson waited outside the licensed premises. After entering the licensed premises, Clinard went to the cooler and selected a bottle of "Bud Light" beer which he brought to the counter. Before selling Clinard the beer, the cashier, Robin Ann Boss asked for and Clinard presented his identification. The cashier sold Clinard the beer, notwithstanding that Clinard's identification showed his age to be 18 years of age. After paying for the beer, Clinard took possession of the beer and exited the licensed premises. Subsequently, Clinard turned the beer over to the Department's agents. Clinard does not remember the cashier giving him a receipt for the beer. Likewise, the agents do not remember Clinard turning in a receipt for the beer. As a result of selling the alcoholic beverage to Clinard, Robin Ann Boss was arrested by Officer Strong. On December 8, 1997, Lt. Nelson mailed Respondent an Official Notice advising Respondent that its employee, Robin Ann Boss, had been "warned or charged" for selling, giving, or serving persons under 21 years of age alcoholic beverages in violation of Section 562.11, Florida Statutes. Crystal Henry was identified as the underage Investigative Aide No. 97028 in the Administrative Action filed against the Respondent by the Department. On January 7, 1998, Henry was 16 years of age (date of birth October 22, 1981) and her appearance on January 7, 1998, was that of person under the age of 21 years. On January 7, 1998, Henry was working with Agent Cleveland McKenzie and Anne Ekstrand in an attempt, as an underage Investigative Aide, to purchase alcoholic beverages or tobacco products from the licensed premises. Before beginning work on January 7, 1998, Henry was instructed by Agents McKenzie and Ekstrand that she was not to attempt to deceive anyone as to her age or appearance. Agents McKenzie and Ekstrand checked Henry's identification (a valid State of Florida driver's license which indicated her age to be 16 years) and found it to be legitimate and found that her identification was not misleading as to her age or her appearance on January 7, 1998. Henry was only allowed to carry into the licensed premises her identification and the money furnished to her by the Department for the purchase of the alcoholic beverage and tobacco product. Sometime around 5:00 p.m. on January 7, 1998, Henry entered the licensed premises. Upon entering the licensed premises, Henry proceeded to the beer cooler and obtained a Bacardi Breezer wine cooler. Henry then walked to the check-out counter with the wine cooler and asked the clerk for a five-pack of Black and Mild Cigars. The sales clerk completed the sale without asking Henry for any form of identification. Henry paid the sales clerk $1.79 for the cigars and $2.09 for the wine cooler. Henry took possession of the wine cooler and cigars and exited the licensed premises. Subsequently, Henry turned the wine cooler and cigars over to Agent McKenzie. Henry does not remember the clerk giving her a receipt for the wine cooler and cigars. Likewise, the agents do not remember Henry turning in a receipt for the wine cooler and cigars. The clerk was identified as Valerie Ann Walker, who was subsequently charged with and arrested for, the sale of an alcoholic beverage and tobacco product to an underage person in violation of Section 562.11, Florida Statutes. A Final Warning was issued to Respondent on January 9, 1998, advising Respondent of the violation and giving Respondent notice that another violation would result in the issuance of an Administrative Action by the Department which could subject Respondent's alcoholic beverage license to formal revocation or suspension proceedings. Enrique Ramos was identified as the underage Investigative Aide No. 97033 in the Administrative Action filed against the Respondent by the Department. On February 17, 1998, Ramos was 18 years of age and his appearance on February 17, 1998, was that of a person under the age of 21 years. On February 17, 1998, Enrique Ramos was working with Agents McKenzie and Ekstrand in an attempt, as an underage Investigative Aide, to purchase alcoholic beverages from the licensed premises. Before beginning work on February 17, 1998, Ramos was instructed by Agents McKenzie and Ekstrand not to attempt to deceive anyone about his age or appearance. Agents McKenzie and Ekstrand checked Ramos' identification (a valid State of Florida driver's license which indicated his age to be 18 years) and found his identification to be legitimate and his identification not misleading as to his age or appearance. Ramos was only allowed to carry into the licensed premises his identification and the money furnished by the Department for the purchase of the alcoholic beverage. At approximately 4:15 p.m. on February 17, 1998, Ramos entered the licensed premises and went to the beer cooler and obtained a six-pack of Budweiser Beer (12-ounce bottles) and approached the check-out counter and placed the beer on the counter. The clerk sold Ramos the beer without checking his identification. Ramos paid the clerk $5.19 for the beer. Ramos took possession of the beer from the clerk and exited the licensed premises where he subsequently turned the beer over to Agents McKenzie and Ekstrand. The clerk was later identified as Ravin E. Bradshaw. Bradshaw was charged with selling an alcoholic beverage to a person under the age of 21 in violation of Section 562.11, Florida Statutes. Respondent's back-up cash register tapes (Respondent's Exhibit number 2) do not reflect a beer sale during the period of time Ramos testified that he purchased the six-pack of Budweiser Beer on February 17, 1998. However, I find the testimonies of Ramos, Agent McKenzie, and Agent Ekstrand to be more credible concerning the purchase of the beer on February 17, 1998, than the back-up cash register tapes or the testimony of Bradshaw, Respondent's clerk and Jung I. Huang, Respondent's manager. The testimony of Respondent's clerks were that they were instructed to "card" or check each alcoholic beverage or tobacco product purchaser's identification to determine if the purchaser was 21 years old or older. However, it was also the practice of Jung Huang and his wife, Yu Chin Lin, a.k.a Michelle, president of Green and White, Inc., to become angry with a clerk who was "carding" every customer. In some instances, both Huang and Michelle would advise a clerk not to card certain customers. Respondent failed to comply with all the training and record-keeping requirements of the Responsible Vendor Program set out in Sections 561.701-561.706, Florida Statutes, notwithstanding the testimony of Jung Huang to the contrary and whose testimony I find lacks credibility.
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 the Division of Alcoholic Beverages and Tobacco enter a final order suspending Respondent's alcoholic beverage license No. 63-02541, 2APS for a period of seven days and it is further recommended that Respondent be required to pay an administrative fine of $1,000.00 to the Division of Alcoholic Beverages and Tobacco. DONE AND ENTERED this 10th of August, 1999, 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 (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 10th day of August, 1999. COPIES FURNISHED: Elsa Lopez Whitehurst, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Tony Dodds, Esquire 825 East Main Street Lakeland, Florida 33801 Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 William Woodyard, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether or not on or about the 19th day of August, 1975, the Respondent, Leartis Frazier, his agent, servant or employee, one Robert Henry Williams did unlawfully sell an alcoholic beverage, to wit: one 16 ounce can of Budweiser beer, in a manner not permitted by the Respondent's beverage license, to wit: while the license was suspended, contrary to Section 562.12, Florida Statutes.
Findings Of Fact On August 19, 1975, the beverage license which the Respondent, Leartis Frazier, held with the State of Florida, Division of Beverage was on active suspension. The notice of suspension had been served on Leartis Frazier at Frazier's Grocery, 2273 Commonwealth Avenue, Jacksonville, Florida. Furthermore, a sign had been posted at that address which indicated that the license of Leartis Frazier t/a Frazier's Grocery was suspended. On August 19, 1975, while the license was under suspension an officer of the Jacksonville Sheriff's Office observed one David Brooks enter Frazier's Grocery, without any objects in his hands. This observation occurred after the officer had encountered Brooks moments before in the conduct of an investigation and Brooks had not been carrying any objects in his hands at that moment either. Several minutes after entering the Frazier's, the same David Brooks exited Frazier's Grocery with a paper bag in his hands which contained one 16 ounce can of Budweiser beer. The Officer then entered the licensed premises and went to the beer counter and opened it up and discovered one can of beer missing from a six-pack container of Budweiser beer. At the time the officer made this investigation the sign which had been placed in the window of Frazier's Grocery to indicate the license suspension was being displayed. A Mr. Williams was sitting behind the counter inside the licensed premises as an employee, agent or servant of the Respondent at the time the officer of the Jacksonville Sheriff's Office discovered the missing can of beer. Mr. Brooks, when questioned about where he had bought the can of beer, after discussion, indicated that he had bought it at Frazier's Grocery. By Mr. Brooks' statement and the officer's observation, it is established that Mr. Williams sold the Budweiser beer to Brooks. The Mr. Williams was identified in the hearing, as being Robert Henry Williams.
Recommendation It is recommended that the license of the Respondent, Leartis Frazier, be suspended for a period of one year for the violation as established in the hearing on this Notice to Show Cause. DONE and ENTERED this 14th day of September, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Leartis Frazier 2273 Commonwealth Avenue Jacksonville, Florida 32209 Charles F. Tunnicliff, Esquire Division of Beverage The Johns Building 725 Bronough Street Tallahassee, Florida 32304
The Issue Whether or not on or about July 13, 1975, Arthur Hayes, Jr., licensed under the beverage laws, and or his agent, servant or employee did sell or permit to be sold, served or consumed alcoholic beverages, to wit: a quart bottle of Schlitz beer, any time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29 Whether or not on or about July 20, 1975, Arthur Hayes, Jr. licensed under the beverage laws and or his agent, servant or employee did sell or permit to be sold, served or consumed, alcoholic beverages, to wit: a quart bottle of Schlitz beer at a time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29.
Findings Of Fact In the presentation of its case, the petitioner called beverage agent Eugene Fogel to the stand. On or about July 13, 1975, agent Fogel was working for the Sanford, Florida, Police Department and in addition was acting in an undercover capacity for the Division of Beverage. At around 2:00 p.m. July 13, 1975, then police officer Fogel met with agent Herb Baker of the Division of Beverage in Sanford, Florida, for purposes of investigating alleged illegal alcoholic beverage sales which were being made on Sunday. The witness, Fogel, went to the address of Dinah's West Side Grocery, entered the store and purchased a quart bottle of Schlitz beer from the respondent, Arthur Hayes, Jr., This particular item of evidence became petitioner's exhibit 1 and is currently in the custody vault of the Division of Beverage District Office in Orlando, Florida. Testimony by agent Herb Baker indicated that the meeting as spoken of by agent Fogel had transpired, and he had seen agent Fogel enter the subject premises on July 13, 1975, and come out with a paper bag which contained petitioner's exhibit number 1. This exhibit was turned over to agent Baker. Officer Fogel testified that on Sunday, July 20, 1975, the same sequence of events occurred that had occurred on Sunday, July 13, 1975. He met agent Baker and then went to Dinah's West Side Grocery around 3:30 p.m. and purchased a quart bottle of Schlitz beer, which is petitioner's exhibit number 2. The petitioner's exhibit number 2 is now located in the custody of the District Office, Division of Beverage, Orlando, Florida. Again, agent Baker stated that he observed officer Fogel go into the premises on July 20, 1975, return with a bag and that the bag contained a quart bottle of Schlitz beer. The testimony was given by officer Fogel that July 13, 1975 and July 20, 1975, were Sundays. Other Petitioner's exhibits admitted into evidence were exhibit number 3 which is a notice to show cause with accompanying administrative complaint, exhibit 4 which is a notice of hearing, and exhibit 5 which is a copy of an ordinance in Seminole County, Florida. This ordinance was in effect on July 13, 1975 and July 20, 1975, and prohibited the sale of alcoholic beverages on any Sunday. The respondent took the stand in his own behalf and indicated that he knew Eugene Fogel in July of 1975, and knew that Eugene Fogel was a policemen with the Sanford Police Department. He stated that he therefore would not have sold beer to Officer Fogel on Sunday, because he knew such a sale would be illegal. The witness also stated that the only employees in his store were he and his wife and consequently the only explanation he could think of for the two quarts of beer, was that the policemen had stolen the beer from his freezer. He said this would have been easy since there was no lock on the beer freezer and it was close to the door. After assessing the testimony of the witnesses, together with the examination of the evidence it is determined that the violations as alleged in counts 1 and 2 in the administrative complaint have been proven. This determination is arrived at because it would not appear that there is any motive on the part of the two police officers to promote absolute falsehoods. On the other hand considering the interest of the respondent and the quality of his comments, he has not effectively explained or defended against the charges.
Recommendation For committing the offense as alleged in Count 1 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes Jr., have his license suspended for a period of 30 days. For committing the offense as alleged in Count 2 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes, Jr., pay a civil penalty in the amount of $150.00. DONE and ENTERED this 5th day of February, 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: William Hatch, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Arthur Hayes, Jr. 1717 West 18th Street Sanford, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF BEVERAGE IN RE: DINAH'S WEST SIDE GROCERY 1717 West 18th Street CASE NO. 75-2011 Sanford, Florida DABT CASE NO. 5-75-94-A License No. 69-139 /
The Issue The issues are as follows: (a) whether Respondent violated Sections 562.11(1)(a) and 561.29(1)(a), Florida Statutes (2003), by selling an alcoholic beverage to Petitioner's undercover investigative aide on January 15, 2004; and (b) if so, what penalty, if any, should be imposed.
Findings Of Fact Respondent holds License No. BEV2601975, Series 1-APS. The license authorizes Respondent to sell beer and wine at the licensed premises, which is located at 1762 Sheridan Street, Jacksonville, Florida. Respondent is the sole owner of Express Food Store (the store), a relatively small convenience store. He has been licensed to sell beer and wine at the store since 1982. In the approximately 22 years that Respondent has owned and operated the store, he has no knowledge of an incident where he personally sold alcohol to an underage person prior to this case. Respondent has a personal and business rule not to sell alcohol to underaged persons. He usually checks an individual's identification before selling him or her alcohol and tobacco because underage persons frequently attempt to purchase these products from the store. He trains his employees not to sell alcohol to underaged persons. He posted Budweiser and Miller Lite signs in the store that say "We I.D." On January 15, 2004, Petitioner performed undercover compliance checks of licensed establishments, which were placed on a list by random sample. The store was on the list to be checked. At approximately 6:30 p.m., Respondent was at the store working behind the checkout counter in the capacity of owner and cashier. The store was relatively busy with several customers. Respondent was waiting on the customers, and in between customers, he was training a new employee, who was having some difficulty operating the lottery machine located near the cash register. Respondent was eager to keep the customers moving as fast as he could move them. Jerry Horky acted as Petitioner's underage operative/investigative aide on January 15, 2004. Mr. Horky, who was born on March 28, 1984, was 19-years-old. Mr. Horky was appropriately groomed and dressed. In other words, he was clean-shaven and not dressed up or down, but was wearing jeans and a shirt with a collar. Petitioner's agents took a picture of Mr. Horky on January 15, 2004. The copy of Mr. Horky's picture that Respondent offered in evidence is of a very poor quality. However, at the time of the hearing, Mr. Horky did not have the appearance of someone over the age of 21. To the contrary, he was average in stature and decidedly youthful in appearance. Mr. Horky, Agent Raymon Arguelles, and Agent Elizabeth Anno drove to the store and parked in front so that they could see inside the store. Petitioner's agents checked to make sure that Mr. Horky had his driver's license showing his correct age and that he did not have any false identification. The agents then instructed Mr. Horky to attempt to buy an alcoholic beverage from the store using funds provided by Petitioner. The agents specifically told Mr. Horky to answer truthfully if anyone inquired about his age. Following the instructions of Petitioner's agents, Mr. Horky entered the store, walked to the beer cooler, retrieved one 12-ounce Budweiser beer, and walked to the counter to wait his turn in line behind at least one customer. Respondent took care of the customer in front of Mr. Horky. Respondent then looked at Mr. Horky and asked if he could help him. Without saying a word, Mr. Horky placed the can of beer on the counter and handed Respondent the money to pay for it. Respondent accepted the money, selling Mr. Horky the beer. Respondent did not ask Mr. Horky's age or check his identification. Mr. Horky exited the store and gave the can of beer to Petitioner's agents, who had witnessed the transaction from their parked car. Petitioner's agents waited until all the customers left the store. Then they entered the store and spoke with Respondent. As soon as they identified themselves, Respondent asked if Mr. Horky was underaged. When the agents responded affirmatively, Respondent stated that he did not check Mr. Horky's identification because he thought Mr. Horky looked old enough. Agent Anno told Respondent how surprised she was that he had sold Mr. Horky a beer because: (a) She remembered him from the time that she first began working for Petitioner in 1992 when one of Respondent's employees was cited on two occasions for selling alcohol to an underaged person; (b) Petitioner had not received a complaint that Respondent was violating the beverage laws; and (c) Petitioner had never cited Respondent for personally violating the beverage laws. Mr. Horky worked for Petitioner as an underage investigative aide from the age of 16 until he reached age 20. During that period of time, Mr. Horky participated in 754 compliance check operations. In 504 of the operations, the licensed establishments refused to sell him alcohol. Approximately 250 licensed establishments sold him alcohol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner enter a final order dismissing the charges against Respondent DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 3rd of November, 2004. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Captain Cynthia C. Britt Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 600 Jacksonville, Florida 32211 Tonia Yazgi, Esquire 3123 Beach Boulevard Jacksonville, Florida 32207 Jack Tuter, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The basic issue for determination in an application for transfer of a license, which is the subject matter of this proceeding, is whether or not such transfer should be granted by the Division of Beverage. A review of the transcript reveals that the parties have not stipulated to facts sufficient to determine whether the applicant is entitled to a transfer. Rather, the parties have stipulated only to what is in essence a hypothetical situation wherein a secured party under the Uniform Commercial Code retakes a license pursuant to Chapter 679, Part V, Florida Statutes, without resorting to the courts of this state. The parties do not appear to have stipulated that in this case the applicant properly complied with the requirements of Chapter 679, Part V, Florida Statutes, but rather they seek an advisory opinion from the Hearing Officer on whether the Division of Beverage should recognize such action as validly vesting ownership of the license in the purchaser or his successors under Section 579.504, Florida Statutes. From the exhibits attached to the transcript it appears that Division of Beverage has issued a Declaratory Statement setting forth its position that the Division should not place itself in the position of recognizing a secured party's alleged interests in a liquor license through the default procedures of the UCC without court approval and direction. The exhibits to the transcript also show that the particular license in question is under an Order of Suspension dated July 24, 1974. As pointed out by counsel for the Division of Beverage in the transcript, Section 561.32(1), Florida Statutes, states that ". . . no one shall be entitled as a matter of right to a transfer of a license when . . . suspension proceedings have been instituted against a licensee, and a transfer of license in any such case shall be within the discretion of the division." The stipulated facts in this matter contain no showing that the discretion of the division has been challenged in this case or has been exercised arbitrarily or, for that matter, that the division intends in the exercise of this discretion to deny transfer. It is further noted that Section 561.32(1), Florida Statutes, sets forth the basic requirements for the transfer of a license issued under the beverage law and notes that the application for transfer shall be approved by the division in accordance with the same procedure provided for in Sections 561.17, 561.18 and 561.19, Florida Statutes. The stipulated facts in this matter do not pretend to show that the foregoing requirements have or have not been met. The Hearing Officers of the Division of Administrative Hearings are empowered to conduct hearings under Section 120.57(1), Florida Statutes. That section deals with matters involving disputed issues of material fact, Administrative hearings in which there are no disputed issues of material fact are to be conducted pursuant to Section 120.57(2), Florida Statutes, entitled "Informal Proceedings". Such a proceeding does not necessarily involve a Hearing Officer from the Division of Administrative Hearings and Chapter 120, Florida Statutes does not appear to give a Hearing Officer from the Division of Administrative Hearings any inherent or unique authority or responsibility with regard to such a proceeding. Any conclusion of law entered by a Hearing Officer from the Division of Administrative Hearings in an informal proceeding would, by law, be in no way binding on the agency involved and would amount to little more than a gratuitous legal opinion about a matter in which, in this case, the agency has issued a definitive statement setting forth its legal position. For that reason Hearing Officers from the Division of Administrative Hearings do not normally conduct informal proceedings. Further, in the matter currently at hand, the parties have not presented a fully developed, existing factual situation to the Hearing Officer, but rather have presented a hypothetical situation on a narrow issue of law and seek an advisory opinion on this theoretical question. Such advisory opinions by a Hearing Officer are not appropriate in proceedings conducted pursuant to Section 120.57, Florida Statutes. Therefore, considering the nature of this proceeding, it is not deemed proper for the Hearing Officer to enter a Recommended Order, Conclusions of Law and Findings of Fact as provided for in Section 120.57(1), Florida Statutes, and this matter is hereby returned to the Division of Beverage for further proceedings as appropriate. ORDERED this 28th day of June, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles L. Curtis, Esquire Staff Attorney Division of Beverage The Johns Building Tallahassee, Florida 32304 Henry A. Amoon, Esquire 123 N.W. 12th Avenue Miami, Florida 33128
Findings Of Fact On July 6, 1977, petitioner caused respondent to be listed, for alleged noncompliance with Section 561.42(3), Florida Statutes (1977), in a notice to distributors of alcoholic beverages, according to which respondent was "prohibited from purchasing . . . any alcoholic beverages except for cash until further notice." Petitioner's exhibit No. 9. On July 29, 1977, Anthony J. Foglietta purchased ten cases of beer for respondent from Universal Brands, Inc., for which he wrote a check in the amount of sixty-four and one half dollars ($64.50). Petitioner's exhibit No. 2. In a separate transaction on the same day, Mr. Foglietta purchased three cases of beer for respondent from Universal Brands, Inc., for which he wrote a check in the amount of nineteen dollars and thirty-five cents ($19.35). Petitioner's exhibit No. 4. For the same amount, on August 9, 1977, Mr. Foglietta purchased three cases of beer for respondent from Universal Brands, Inc., which he paid for by check. Petitioner's exhibit No. 6. Two days later Mr. Foglietta bought three more cases of beer for respondent, which he paid for in cash. On the night of August 5, 1977, Mr. Foglietta purchased 18 to 20 bottles of liquor for respondent from The Beacon Bar, paying with a check in the amount of two hundred forty dollars and seventeen cents ($240.17). Petitioner's exhibit No. 10. On the same date, Mr. Foglietta purchased other liquor for respondent from Three Spirits, Inc., which he paid for with a check in the amount of one hundred seventy-nine dollars and twenty-six cents ($179.26). Petitioner's exhibit No. 11. Four days later Mr. Foglietta, bought for respondent additional alcoholic beverages from Three Spirits, Inc., which he paid for with a check in the amount of sixty-one dollars ($61.00), Petitioner's exhibit No. 12. On August 30, 1977, respondent's bar was well stocked with alcoholic beverages, although the notice issued on July 6, 1977, had not been rescinded. On July 14, 1977, Mr. Foglietta and Mr. Joseph P. Sgroi signed a corporate resolution, which was stamped with the seal of The Hospital Disco, Inc., and left with Landmark First National Bank; the resolution recites that Messrs. Foglietta and Sgroi were operating vice-president and president, respectively, of The Hospital Disco, Inc. Petitioner's exhibit No. 14. Messrs. Foglietta and Sgroi also signed a second corporate resolution to like effect. Petitioner's exhibit No. 13. Petitioner's records indicate that James C. Lorigo owned all of respondent's stock and was respondent's president, vice-president and secretary at the time of the hearing. Petitioner's records did not reflect the filing of any application for a license transfer, at the time of the hearing.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty of one hundred dollars ($100.00) against respondent. That petitioner revoke respondent's license on the thirtieth day after entry of this order unless respondent shall by then have complied with Rules 7A- 2.07 and 7A-3.37, Florida Administrative Code, and unless by then Mr. Foglietta and any other person associated with respondent who is required by law to do so shall comply with Section 561.17, Florida Statutes (1977). DONE and ENTERED this 28th day of June, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dennis E. LaRosa, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 The Hospital Disco, Inc. t/a Carmen's Restaurant and Disco 928 N. Federal Highway Ft. Lauderdale, Florida F. Ronald Mastriana, Esquire 2750 North Federal Highway Ft. Lauderdale, Florida 33306
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order suspending alcoholic beverage license number 39-0992, series 4-COP, for two years, beginning September 19, 1984, but also providing that the suspension will be lifted on the condi- tion that and so long as: The licensee gives assurances satisfactory to the DABT that it employ a qualified security guard during business hours for purposes of preventing the use, sale or delivery of illegal drugs and preventing illegal drink solicitations on the premises; The licensee prominently posts signs satisfactory to the DABT in content, form, and placement and easily visible to patrons and employees giving notice of the licensee's policy that violations of the law will be reported to the proper authorities and will result in termination of employees and exclusion of non- employees from the premises; The licensee and its employees enforce the policy described in subparagraph 2. above; The licensee gives assurances satisfactory to the DABT that it holds meetings with all employees at least once a week to reemphasize the policies set forth in subparagraph 2. above; The licensee screen all employees and prospective employees in an manner satisfactory to the DABT. RECOMMENDED this 28th day of November, 1984 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of November, 1984.
