Findings Of Fact 1718, Inc. held alcoholic beverage license number 58- 1581, Series 2-Cop; for the premises of the Fox Hunter, 1718 South Orange Avenue, Orlando, Florida, at all times relevant to these proceedings. The license was issued on June 18, 1981. Although the testimony of Captain Jack B. Wallace that John and Fay Knight (Knights) were the owners of the real property located at 1718 South Orange, Orlando, Florida, went unrebutted, the record does not reveal the date when John and Fay Knight became the owners of the real property located at 1718 South Orange Street, Orlando, Florida. The Knights were absentee landlords and leased the premises to 1718, Inc. d/b/a/ Fox Hunter (Fox Hunter) through a real estate agency in Orlando, Florida. On June 3, 1985 Petitioners mailed a letter to the Knights informing them that the alcoholic beverage license of Fox Hunter had been suspended on an emergency basis due to 13 alleged sales of narcotics on the premises by employees of Fox Hunter; that Respondent had requested a hearing on the charges; that Petitioner would seek license revocation with prejudice as provided in Section 561.58, Florida Statutes (1983); that the Petitioner would present evidence at the hearing in support of license revocation with prejudice; and that the Knights would be advised of the date, time and location of the hearing at a later date. The record does not reveal that Petitioner ever advised the Knights as to the date, time and location of the hearing, however, counsel for Respondent announced at the time of the hearing that he would be representing the Knights. Additionally, the record does not reveal that a copy of the original or Amended Notice To Show Cause was ever furnished to the Knights. Nor does the record reveal that the Knights had any knowledge of any previous violations at the premises. On April 29, 1985, Orlando Police Officer Kerry Farney (Farney) went to the premises of Fox Hunter and spoke to dancer Joyce Travis concerning the purchase of cocaine. Joyce agreed to sell Farney a half gram for $50.00. Farney gave Joyce $55.00, including $5.00 for a dance which she performed, and Joyce returned to Farney a dollar bill wrapped around two- plastic packages of cocaine. Officer Farney returned to the Fox Hunter on April 30, 1985, and spoke with dancer Lisa Nolen a/k/a Dusty concerning the purchase of a quarter gram of cocaine. Dusty agreed to sell the cocaine and obtained $25.00 from Farney. She later returned to Farney and handed him a plastic package containing cocaine. Officer Farney again returned to the Fox Hunter on May 2, 1985 and was later met there on this same day by Investigator Rodney Russ (Russ). The Officers arranged to purchase cocaine from the dancer Dusty. Farney gave Dusty $30.00, $5.00 for a dance and $25.00 for a quarter gram of cocaine. Russ gave Dusty $50.00 for one half gram of cocaine. After going into the dancers' locker room, Dusty returned to the officers and handed to Farney a dollar bill wrapped around two plastic packages of cocaine and asked Farney to pass it to Russ. Farney passed the cocaine wrapped in the money to Russ which Russ opened and inspected the two plastic-packages of cocaine contained therein. Later that same night Dusty delivered the cocaine to Farney which he had paid for earlier. Russ returned to the Fox Hunter on May 3, 1985 and entered into conversation with dancer Laura, who asked if he was looking for a quarter gram of cocaine. Russ stated that he wanted a half gram and Laura responded that she would see what she could do. After speaking with an unknown male patron, Laura returned to Russ and stated that all he had left was three- tenths of a gram for $30.00. Russ stated that he would take the three tenths of a gram and gave Laura $30.00. Laura again approached the unknown patron and then returned to Russ after being assured by Russ that he was not a cop or with law enforcement, placed a bill in his pocket. Russ removed and opened the bill and inspected the plastic package of cocaine. Russ returned to the Fox Hunter on May 7, 1985 and entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. Joyce stated that she would be able to get it later. Joyce subsequently asked Russ how much he wanted to buy and Russ responded that he wanted a half gram. Russ gave Joyce a $100.00 bill and she went into the women's dressing room. Joyce later returned to Russ and gave him $25.00 change wrapped around two clear plastic packages of cocaine. Russ returned to the Fox Hunter on May 8, 1985, and was solicited by dancer Joyce for the purchase of two beers. Russ returned to the premises of the Fox Hunter on May 9, 1985, and entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. Joyce left Russ to talk to an unidentified black male and returned to inform Russ that she could get the half gram of cocaine from the black male after he split it up and that Russ would have delivery soon. The male went into the restroom and when he emerged from the restroom, Joyce approached him and then went into the women's restroom. After exiting the restroom, Joyce performed a dance for Russ, during which she told him to take a dollar bill out of her garter. Russ took the dollar bill and opened it up to inspect two tinfoil packages of cocaine. Russ returned to the licensed premises on May 10, 1985, and again entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. When Joyce agreed, Russ handed her $75.00. Joyce subsequently returned to Russ and handed him a plastic package of cocaine which Russ placed into the cellophane wrapper of his cigarette pack. Joyce stated that the person from whom she had obtained the cocaine only had a quarter gram but would be getting a delivery soon, at which time Joyce would give Russ his other quarter gram. Russ did not obtain the additional quarter gram prior to leaving the premises on this occasion. Russ returned to the Fox Hunter later the night of May 10, 1985 and spoke with Joyce about obtaining his remaining quarter gram of cocaine and she advised him that delivery had not been made. Russ then talked with dancer Laura about obtaining some cocaine. Laura first said that it would be after 2:00 a.m. when the bar closed but when Russ told her he could not wait that long she obtained a short quarter gram from an unidentified white male. Laura then left to go into the women's restroom. When she returned to Russ, Laura placed a plastic package of cocaine in his pocket stating that she had tried the substance and it was good. Russ removed the package from his pocket and inspected it. As Russ was leaving, Joyce approached him near the entrance and handed him a plastic package containing his remaining quarter gram of cocaine. Russ returned to the premises of the Fox Hunter on May 15, 1985, and was solicited by the dancer Dusty to purchase her a bottle of champagne for $5.75, which he did. Russ again went to the Fox Hunter on May 16, 1985 and entered into conversation with the dancer Laura concerning the purchase of a half gram of cocaine. Laura stated that she would be able to get him some. Laura approached and spoke to an unknown patron and the dancer Michelle, after which she went into the women's dressing room. She shortly returned to Russ and placed two plastic packages of cocaine into his pocket. On May 17, 1985, the Respondent served an Emergency Order of Suspension and Search Warrant on the Fox Hunter. Located during the search was a dollar bill wrapped around a package of cocaine, a plastic package of cocaine, a package of marijuana and several marijuana cigarettes. The sale or delivery of the cocaine on April 29, 30, 1985 and May 2, 3, 7, 9, 10, 16, 1985 to investigator Farney and Russ took place in and around the dance area of the premises. On April 20, 1982 the Respondent served a letter of warning to Fox Hunter alleging that on August 4, 1981, an employee had solicited the sale of an alcoholic beverage in violation of Section 562.131, Florida Statutes and further alleging that on October 30, 1981, an employee had delivered a controlled substance to a police officer on the premises. No proof was offered as to the disposition of those matters, or indeed, whether the incidents ever actually took place. In July, 1984, the manager of Fox Hunter --Lawrence Siegel -- apprehended one of its employees and a patron engaged in a drug transaction: he detained them and called the Orlando Police Department, and the two were taken into custody. The Petitioner's response to this action was to issue a citation against the Fox Hunter for the alleged sale, even though it was Lawrence Siegel who uncovered the transaction and apprehended the perpetrators. Mr. Siegel contacted Lt. Farmer of the Orlando Police Department and requested assistance in placing an undercover officer in the lounge as an employee. Mr. Siegel wanted to interdict narcotics and assist in the apprehension of the persons who might be dealing with them. However, the request was turned down because, as Lt. Farmer explained, the police department did not have the necessary resources to assist in this manner. The record is not clear as to the period of time Lawrence Siegel maintained contact with the police, but he did contact them about the problem, identifying suspected dealers and providing names and descriptions of vehicles. However, Jason Robaudo replaced Lawrence Siegel as night manager during this period of time. James Robaudo was present in the licensed premises during most of, if not all of, the time during which the unlawful activities accursed. Although the record is not entirely clear on the details, there were other alcoholic beverage establishments in the same general area that had been charged with the sale of controlled substances on the premises where a heavy fine plus a short license suspension had been imposed rather than a license revocation or a license revocation with prejudice.
Recommendation For all of the foregoing reasons it is RECOMMENDED that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 58-1581, Series 2-COP, issued to 1718, Inc., d/b/a Fox Hunter. Respectfully submitted and entered this 3rd day of September, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 3rd day of September, 1985. COPIES FURNISHED: Louisa E. Hargrett, Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Richard L. Wilson, Esq. 1212 East Ridgewood Street Orlando, Florida 32803 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr. Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
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 Early Mitchell t/a Mitchell's Fish Market holds 1-COP beverage license which authorizes the sale of beer only for consumption on the premises. At the time scheduled for the commencement of the hearing Mitchell was not present and the hearing commenced. Exhibit 1 shows that the notice of the hearing was served upon Mitchell on May 10, 1977. Shortly thereafter Mitchell arrived and the hearing proceeded. On October 5, 1976 a beverage agent accompanied by an officer from the Tallahassee Police Department inspected Mitchell's Fish Market. Inside they found a partially filled bottle of Smirnoff vodka which was seized, duly marked, and presented in evidence at the hearing. A description of the bottle was substituted for the exhibit and Exhibit 2 was returned to the Beverage Division. On March 9, 1977 another beverage officer, on a routine inspection of Mitchell's Fish Market, discovered behind the counter concealed in an open beer case, one partially filled bottle of Smirnoff vodka. The bottle was seized, marked for identification and retained in the custody of the seizing beverage officer until such time as it was produced in evidence at the hearing. A description of the bottle was entered into the record and Exhibit 3 returned to the Division of Beverage.
The Issue Whether Respondent violated the Beverage Laws as alleged in Notice to Show cause dated January 3, 1991.
Findings Of Fact At all times relevant hereto Dorsa Inc., trading as The Establishment, held 2-COP license No. 61-00066 to sell alcoholic beverages at 311 Pennsylvania Avenue, San Antonio, Florida. On October 31, 1990 several Beverage agents entered The Establishment where a Halloween party was in progress among the St. Leo College students. Upon entering the bar an employee at the door checked identification and stamped the back of the entering patron's hand. An underage operator with DABT entered with another agent and the stamp placed on the back of the minor's hand could not be distinguished from the stamp on the hand of the adult agent. The minor went to the bar and purchased beer on two occasions without further questioning or identification by the bartender. Bartenders had been directed to sell beer to those with stamps or wrist bands as they had been cleared by the bouncer at the door as age-qualified to purchase alcoholic beverages. During the evening of October 31-November 1, 1990 several minors were arrested for possessing alcoholic beverages (beer) in bottles with Annheuser- Busch labels and several others had purchased beer from the bartender. The ages of these minors were verified by driver's licenses possessed by these patrons. One of the DABT agents, Sgt. Timothy Allen, had a discussion with James John Redman III who appeared to be in charge of The Establishment. Allen was told by Redman that Redman was the new owner of The Establishment and the papers verifying this ownership were in an attorney's office in Miami. No application to change ownership has been presented at the district office of the Petitioner.
Recommendation It is recommended that the 2-COP alcoholic beverage license No. 61-00066 issued to Dorsa Inc., trading as The Establishment, be revoked. RECOMMENDED this 7th day of June, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1991. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Lance Joseph, Esquire 9990 S.W. 77 Avenue, Suite 210 Miami, FL 33156 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Don D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times material hereto, respondent, Cesar J. Reyes, held alcoholic beverage license number 23-05034, series 2-COP, for the premises known as Busy Cafeteria Bar (the "premises"), located at 4601 West Flagler Street, Miami, Dade County, Florida. In November 1993, Special Agent Joe Lopez of the Division of Alcoholic Beverages and Tobacco, together with the assistance of a confidential informant (CI), began an undercover investigation of the premises. Such investigation was predicated on information Special Agent Lopez had received from federal authorities which indicated that narcotics were being sold upon the premises. On December 1, 1993, Special Agent Lopez and the CI entered the licensed premises. While inside the premises, the CI met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On the same occasion, Special Agent Lopez met with respondent, and he also purchased a small plastic package containing 1/2 gram of cocaine for $30.00. 1/ On December 2, 1993, Special Agent Lopez and the CI returned to the licensed premises. While inside the licensed premises, they again met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On December 7, 1993, Special Agent Brian Weiner of the Division of Alcoholic Beverages and Tobacco served respondent with an emergency order suspending his alcoholic beverage license, and placed respondent under arrest for the sale of cocaine. Incident to such arrest, Special Agent Weiner searched respondent's person and discovered six small plastic packages, each containing 1/2 gram of cocaine, in a small box tucked under respondent's waist band.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing Counts 1 and 2 of the notice to show cause, finding respondent guilty of Counts 3, 4, 5 and 6 of the notice to show cause, and revoking respondent's alcoholic beverage license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December 1993.
Findings Of Fact At all times pertinent to the issues herein, alcoholic beverage license No. 26-01841, Series No. 2-APS, was issued to Respondents, Frank D. and Estella S. Ryers, for their establishment known as the Big B Restaurant, located at 5570 Avenue B, Jacksonville, Florida. A 2-APS license permits the package sale only of beer and wine. It does not permit the consumption on the premises of beer, wine, or liquor. On March 27, 1983, Investigator Wendell M. Reeves conducted an undercover operation directed against the Big B Restaurant predicated upon reports received by Petitioner that Respondents were conducting sales of alcoholic beverages not permitted by the license at the licensed premises. In furtherance of that operation, Reeves utilized another beverage agent, Van Young, in an undercover capacity to make a controlled buy of an improperly sold substance from the licensees. Prior to sending Young into the licensed premises, Reeves searched Young to ensure that he, Young, had no alcoholic beverage or money in his possession. Satisfying himself that that was the case, he gave Young $15 in U.S. currency and sent him into the licensed premises to make the buy. Young entered the Big B Restaurant at 1:00 p.m. and came out 17 minutes later. When he came out of the licensed premises, Young came over to where Reeves was waiting and turned over to him a sealed 200 ml bottle of Fleishman's Gin. Young told Reeves that he had purchased the gin in the licensed premises from a black male whose description matched that of Respondent Frank D. Byers which is contained on Respondent's application for license. Respondent Frank Byers denies making the sale. On balance, however, there is little doubt it was Respondent who made the sale, especially in light of the fact that this same licensee was issued a letter of warning by the Division of Alcoholic Beverages and Tobacco in October 1981 for possession on the premises of an alcoholic beverage not permitted to be sold under the license. Young also stated that he purchased a second bottle which he consumed on the premises with another black male. However, this evidence was in the form of Reeves' report of what was told him by Young. As such, it is clearly hearsay and can be used only to corroborate or explain other admissible evidence. Therefore, as to the allegation regarding the consumption of the gin on the premises, since it is the only evidence of that offense, it cannot be used to support a finding of fact on that allegation. It may, however, be used to explain how Young got the bottle with which he was seen by Reeves to come out of the licensed premises. Several days later, on March 30, 1983, Reeves again entered the licensed premises, where he told Respondent Estella Byers he was there to inspect the site. She opened the cooler for him and he inspected the beer inside and the cigarettes. While he was doing that, however, he noticed her take a cloth towel and drape it over something behind the bar. He went over to it, removed the towel, and found that it covered a bottle of Schenley's gin. Mrs. Byers immediately said she thought it was her husband's, Respondent Frank Byers, but another individual present at the time, Sharon Thomas, said she had taken it from her brother, who was drunk, and had put it there. Again, as to Ms. Thomas' comments, they, too, are hearsay and can only serve here to explain or corroborate other admissible evidence. In any case, after Ms. Thomas made her comment, she was immediately contradicted by Respondent Estella Byers, who again indicated she thought the bottle was her husband's. In any case, at the hearing, Respondent Estella Byers contended she did not know it was there. On balance, Mr. Reeves' testimony that she covered it with a towel while he was inspecting and the evidence of the prior warning for an identical offense tend to indicate she did know it was there and that it was unlawful for it to be there. There is, however, no evidence to establish sufficiently the reason for its being there.
Findings Of Fact There is no dispute that the licensee is holder of Beverage License Permit no. 23-1940, 1-COP. On January 23, 1976, 1/ Ed Wayne Pfitzenmaier, a beverage officer for approximately 6 years visited the Calder Race Track stable area and on the dates January 23 and January 30, witnessed the sale of food from a vending truck. He approached the truck where the sales of food and other items were taking place and approached one Joann McFadden, who according to Pfitzenmaier is an employee of Calder Race Track Concessions, Inc. He viewed the windshield of the vehicle and noted that it did not have a permit authorizing the transportation of alcoholic beverages. He phoned the Department of Motor Vehicles dispatcher to determine the registered owner of the vehicle and it was later revealed by the Department that the vehicle was registered to Calder Race Track Concessions, Inc. Pfitzenmaier and Officer Bokberg witnessed the sale of a sealed can of Schlitz and Falstaff Beer on the dates January 23 and 30. On the second occasion, January 30, Pfitzenmaier asked to speak to the agent in charge and he was referred to Mr. Cleissnor who is the manager of the concession area. He also spoke to a Mr. Fernandez, who as it later turned out, was and is one of the licensee's corporate officers. Pfitzenmaier was given a transfer sheet which reflected the transfer of goods i.e., food and other beverages from the track kitchen to the vendor's truck. It is clear that the licensee has not made application from the Division of Beverage to obtain a permit to transport alcoholic beverages in the vehicle witnessed by officers Pfitzenmaier and Bokberg. The Licensee's agent testified that the sale of food and other beverages including beer was done exclusively for the use and consumption of its employees and that there was no overt act on the licensee's part to violate any of the alcoholic beverage laws. It was also noted that the application for beverage license was accompanied by a sketch of the entire race track stable area and there was no stipulation in the grant of the license indicating that the sale of alcoholic beverages were to be restricted to the concession area. In fact, the application itself reveals that the location of the business designates the street address 21001 Northwest 27th Avenue/stable area, Opa Locka, Dade, Florida. Based on this fact and the concluding fact that the sale took place in the stable area, I therefore find and conclude that the sale of the alcoholic beverages, to wit, two cans of beer, was not in violation of Florida Statutes 562.06, inasmuch as the stable area was the area designated in the license application itself. I further find that the licensee, by permitting to be transported alcoholic beverages in a vehicle not authorized to transport alcoholic beverages by a permit violated Administrative Rule 7A-3.27.
The Issue The issues presented are those set forth in a notice to show cause filed by Petitioner against Respondents in Case No. AY-74-87-0201. In particular, it is alleged that on March 16, 1988, October 21, 1988 and February 24, 1989, that the Respondents or their agents, servants or employees sold alcoholic beverages to minors in violation of Sections 561.29, Florida Statutes and 562.11(1)(a), Florida Statutes.
Findings Of Fact At all times which pertain to this Notice to Show Cause/Administrative Complaint, Respondents were doing business at 238-240 Atlantic Avenue, Daytona Beach, Volusia County, Florida under the business name Speidi Shack and pursuant to a beverage license issued by Petitioner. That license number was and continues to be number 74-01802, Series 2-COP. On March 16, 1988, and again on October 21, 1988, Michael Vanorder, whose birthday is March 27, 1969, purchased a Light beer from employees of the Respondents in the licensed premises. On February 24, 1989, Tina May purchased a Light beer from an employee of the Respondents in the licensed premises. Her date of birth is August 4, 1968. The Light beers that were purchased by those two individuals are alcoholic beverages. In the incident of March 16, 1988, Vanorder entered the licensed premises as an underage operative of the Petitioner. The purpose of underage operatives is to assist the Petitioner in investigations to ascertain whether suspected alcoholic beverage license holders will sell alcoholic beverages to minors. Vanorder was provided money from the Petitioner to purchase the alcoholic beverage if the licensees, their agents or employees would sell. Betty Warner and Tanya Pandarakis, who are Alcoholic Beverage Agents for Petitioner were in the bar and watched as Vanorder was asked by the bartender what Vanorder wanted. Vanorder indicated that he wanted a Light beer. Mark Barker, the bartender, brought a Light beer to Vanorder and accepted payment for that beer. In this purchase, Vanorder was not asked to produce any identification nor was he asked how old he was. Vanorder was under instructions from Petitioner's agents to validly respond to any questions about his age and to provide accurate identification in support of his remarks. The beer that he was given had been opened by the bartender. These events occurred around 8:35 p.m. The beer that was purchased was then given from Vanorder to Warner. Barker was then arrested by Warner and another Alcoholic Beverage Agent, Fred Dunbar, for selling alcoholic beverages to a minor. The arrest occurred when Dunbar entered the licensed premises following the sale and identified himself as an Alcoholic Beverage Agent. Prior to leaving the premises on that occasion, Respondent John M. Macker was told of the arrest and why an investigation had been made in the first place about suspected sales to minors in the licensed premises. Macker came the next day to meet with Dunbar at the invitation of Dunbar. Macker was told that a complaint file would remain open and that underage operatives would continue to be sent into the licensed premises to see if Macker had corrected the problem of selling to underage patrons. Respondent Macker promised that he would have closer supervision and would give training to his employees about proper identification techniques for sales of alcoholic beverages in the licensed premises. An official notice was given to the Respondents, a copy of which may be found as Petitioner's Exhibit No. 3 which was admitted into evidence. That notice is dated March 17, 1988 and is issued from Dunbar and is acknowledged as having been received by Respondent Macker. It identifies the facts of the sale to a minor and the arrest of Mark Barker and warns Respondents that if the violation occurs again, that Respondents could be charged with the violation of March 16, 1988 and any future violations. Throughout this warning phase associated with the sale of March 16, 1988 Respondent Macker was cooperative in his attitude. As forecast, Petitioner sent Vanorder back into the licensed premises on October 21, 1988 to see if Respondents, their agents, servants or employees would sell him alcoholic beverages. Beverage Agent John Szabo, Agent Dunbar, Lt. Powell and Vanorder went to the licensed premises on that evening. Their activities at the licensed premises commenced around 8:55 p.m. At this time, there were around 10-20 patrons in the bar. Szabo went in first and sat down at the bar and ordered a beer. Vanorder came in some 2-3 minutes later and sat down at the bar. A white female bartender who was identified later as Beth Ann Marsden approached Vanorder and asked him what she could get for him. He asked for a Bud Light. The bartender went to the cooler and came back with an open can of Bud Light and said that the cost of that beer would be $1.25. Vanorder paid her and she gave him back change. Vanorder then went outside the licensed premises and gave the beer to Dunbar. During the course of this purchase, Vanorder was not asked his age or asked for any form of identification which would demonstrate his age. As before, Vanorder was prepared to show a valid identification and give his correct age. After Dunbar was given the beer, he came into the licensed premises and he and Szabo confronted the bartender with the fact that she had sold beer to an underaged patron. They asked if the owner was on the premises and she said that he was not. The bartender was then charged with selling to a minor. She was given a Notice of Appearance for October 25, 1988 which constituted of a letter of final warning to the licensee. A third phase of the investigation occurred on February 24, 1989 when Tina May, an underaged operative for the Petitioner assisted in the investigation of sales to minors. Around 10:50 p.m., Officer Szabo, Beverage Officer Sullivan and Tina May went to the licensed premises. Szabo went in the bar first. One customer was in the bar. Szabo asked for a beer and was asked for his identification and showed his license and was served a beer. Before Tina May entered the license premises, she had been instructed to dress in normal attire and to carry her drivers license and to tell the truth about her age and to give the correct identification. Once inside the licensed premises, May sat where she could be seen by Officer Szabo. The other patron left the bar. Around 11:00 p.m., May was approached by Beth Ann Marsden who asked May what she wanted. May replied that she wanted a Bud Light. The bartender asked for identification and a driver's license was produced which showed May to be underage. Marsden was seen to count on her fingers when shown the identification. She opened up a Bud Light beer for May and gave it to her and said that the price of the beer was $1.25. May gave her $5.00 and received change. She then gave the beer to Szabo. Szabo then told the bartender that he was a Beverage Officer. Marsden recognized Szabo from the prior incident with Vanorder on October 21, 1988. Marsden told Szabo that May was 21 years old. Szabo got the driver's license from May and showed it to the bartender who admitted that she had made a mistake and that she didn't look at the month of the birth. She had only looked at the year, 1968. Out of this incident, an Official Notice was prepared, a copy of which may be found as Petitioner's Exhibit No. 4 admitted into evidence. It sets out the violations of March 16, 1988, October 21, 1988 and February 24, 1989 and the intention of the Petitioner to file administrative charges against the Respondents for sales to minors. Since the Respondents were not there, the list was left with a Rosemarie Savini. That notice was served on November 2, 1989. Before the time of the final hearing in this case, the sole ownership of the licensed premises had been left with John M. Macker. Linda F. Williams no longer is involved with the license in question. Respondent Macker's principle business is that of a commercial fisherman. During the pendency of this investigation, he was gone a lot from his licensed premises because of his other work and relied on his employees to act appropriately concerning sales to minors. In the period 1985 until January, 1989, he had not experienced problems with this. He had posted notices around the bar about sales to minors and had instructed his employees about being careful not to sell to minors. He has calendars from beer distributors which assist in ascertaining the age of minors. March 16, 1988 was Barker's first day on the job, as was October 21, 1988 the first day on the job for Beth Ann Marsden. His instructions to his employees was to check identification if people did not look at least in their fifties or older than Respondent. Since these events, Respondent has taken more detailed steps and placed other signs to avoid sales to minors. He doesn't wish these problems to occur again and regrets that they happened on this occasion. On the other hand, he did not ask for help from the Petitioner after the October 21, 1988 incident as was offered. Following the third sale, he has moved into the licensed premises to maintain better control of the circumstance. No other incidents were reported to have occurred beyond that adjustment concerning sales to minors.
Recommendation Having considered the facts, and the conclusions of law reached, it is, RECOMMENDED that a Final Order be entered which fines the Respondents in the amount of $500 for these violations. DONE and ORDERED this 19th day of October, 1989, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2457 Those facts as suggested by the Petitioner are subordinate to facts found in this Recommended Order. COPIES FURNISHED: Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John B. Fretwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John M. Macker 238-240 North Atlantic Avenue Daytona Beach, Florida 32018
Findings Of Fact The Respondent, Edward Lee Howell (Howell), holds alcoholic beverage license number 46-01252, Series 2-COP, for licensed premises located at 2712 Towles Street, Fort Myers, Florida, known as Mr. B's Lounge. Violation of Local Ordinance Lee County Ordinance 76-9, as amended by Ordinance 79-1, provides in pertinent part: All places or establishments within the unincorporated area of the county and lawfully licensed by the State Beverage Department of Florida, may sell or serve, or permit to be sold, served or consumed, any type of alcoholic beverage of any kind whatsoever for consumption both on or off the premises only during the hours of 7:00 a.m. and 2:00 a.m. of the following morning every day of the week, including Sundays. Howell was cited on or about July 1, 1989, for allegedly violating this "hours of sale" ordinance, but he was aquitted in August, 1989. In 1990, Lee County Sheriff's Office (LCSO) Deputy James Nygaard warned Howell a half dozen times not to sell alcoholic beverages after 2 p.m. On or about December 28, 1990, Nygaard cited Howell for allegedly violating the ordinance by allowing a patron to consume alcoholic beverages on the premises after hours. Howell was tried and acquitted because it was not proven that the patron was drinking an alcoholic beverage. After successive reassignments to another patrol zone and to work as a detective, Nygaard was reassigned to patrol the East Zone in January, 1995. Beginning in January, 1995, Nygaard warned Howell twice not to sell alcoholic beverages after 2 p.m. On or about March 11, 1995, Nygaard cited Howell for violating the ordinance. Howell denied the charges, which still were pending in criminal court at the time of the final hearing. Nygaard testified that, this time (in contrast to the December, 1990, charge), he retained a sample of the contents of the container out of which the patron was drinking after 2 p.m. He testified that the sample was tested and found to be an alcoholic beverage. But the evidence shed no light on the extent of Howell's responsibility for the violation (e.g., how long after 2 p.m. the violation occurred, whether the violation was flagrant, whether Howell was even on the premises at the time of the violation or, if not, how diligent he was in training his employees on how to prevent violations of the "hours of sale" ordinance.) Howell denied that he sells or serves or allows alcoholic beverages to be served, sold or consumed in violation of the ordinance. Mr. B's remains open after 2 a.m. and patrons dance and listen to music, but Howell testified that they are not allowed to drink alcohol in the lounge after 2 a.m. Towles Street Near Mr. B's Mr. B's Lounge is in a section of Fort Myers, Florida, where in recent years violent crime increasingly has become an undeniably serious problem to area residents and the LCSO, which is the law enforcement agency having jurisdiction. Towles Street is a two-lane road that runs between Edison Avenue and State Road 82 outside the city limits of the City of Fort Myers. During the evening hours, especially on weekends, large numbers of people park cars in the street and congregate in the area. Some of these people patronize Mr. B's, but many more congregate in the street and on both sides of the street up and down Towles Street in the vicinity of Mr. B's. A good number of these people drink too much and become noisy and violent. (Not all of the drinking takes place in Mr. B's, and not all of what is drunk comes from Mr. B's. Many of these people buy their alcoholic beverages elsewhere, or bring them from home, and drink their alcoholic beverages outside on and along Towles Street.) Many drive at recklessly high speeds up and down the street (when the streets are passable.) Loud music is played from stereos in car driving up and down the street and parked in the street. Some of these people, drunk or not, come to the area with the intention to engage in crime, violence and other disruptive conduct. More and more carry knives and firearms, or keep them in their cars, and many use or threaten to use their weapons. Assaults and armed robberies are common. The area around and including Mr. B's has become known to those who frequent it as a place to go to "hang out" and be a part of this violent scene. The violence, including stabbings and shootings, has become so prevalent that residents of the area who do not participate in the violence are afraid to leave their homes at night and, even in their homes, they are not completely safe from stray bullets. The violence and reputation for violence on Towles Street in the vicinity of Mr. B's has become like no other place in Lee County. One LCSO deputy testified that he has heard more automatic weapon fire on duty at night on Towles Street than he heard during his entire experience as a member of the United States armed forces. Some deputies testified that, especially on weekends, there often are so many cars parked illegally in Towles Street that deputies patrolling the area or responding to complaints have to park their police vehicles on Edison Avenue or State Road 82 and walk in. They believe that, when they are seen approaching, the people congregating in the vicinity of Mr. B's lock their weapons in cars and that many of them enter Mr. B's to avoid the deputies. On occasion, the crowds of people encountered by LCSO deputies on Towles Street do not disperse so readily. Once, two deputies responding to a call for service in the vicinity of Mr. B's were assaulted before reaching the lounge and received injuries, including a broken jaw, requiring medical attention in the hospital. (Howell assisted the deputies in subduing the assailant.) On another occasion, it took deputies approximately an hour to control and disperse the crowd, during which time another call for LCSO assistance had to go unanswered for half an hour. Some of the incidents on Towles Street occur before 2 a.m., but many occur later, after the LCSO patrols have been reduced to a single shift. With fewer deputies on patrol, the violence on Towles Street becomes an even greater problem for law enforcement. By the time backup arrives in response to calls on Towles Street, practically no deputies remain available to patrol or respond to calls for service in the rest of the zone. The Licensed Premises No sketch of the licensed premises was introduced in evidence. The evidence was that Mr. B's faces Towles Street and that the front door opens onto a front step that is separated from the street by an unpaved strip of grass and dirt about seven feet wide. Until very recently, Mr. B's had only four parking spaces and did not have a parking lot. The precise extent of the licensed premises was not made clear from the evidence. During an inspection of the licensed premises on February 23, 1995, DABT Special Agent Odom recovered 141 spent gun shell casings in the vicinity of Mr. B's, including: seventy-four 74 9mm's; three 38 Specials; sixteen 16 357 Magnums; four 45-caliber; three 30-caliber; three 44 Magnum; one 10mm; 2 25- caliber; and nineteen 12 gauge shotgun shell cases. Some of these spent shell casings were recovered between the front door to Mr. B's and Towles Street. Most were recovered within 15 to 20 feet from the lounge building, but some were recovered as far as 20 yards away, including some that were found all the way across Towles Street on the opposite side of the street. Four were recovered under the cushion of a couch inside Mr. B's, but there was no evidence how they got there and no evidence that they were fired inside Mr. B's. Except for these four, it was not proven that any of the spent shell casings actually were recovered from the licensed premises themselves. From February, 1991, through October, 1994, there have been 135 calls for LCSO service arising out of incidents in the vicinity of Mr. B's. Some of the calls reported finding lost property or suspicious persons or were for the purpose of reporting some other information to the LCSO. Many of the calls were for relatively minor offenses, such as disturbances, trespassing, vandalism, nuisances, car accidents and highway obstruction. But many were for more serious crimes such as assaults, use or display of firearms, burglaries and robberies. Although many of these calls were placed from a telephone at Mr. B's, the evidence was not clear which, if any, of the incidents instigating calls actually occurred at Mr. B's. It seems clear that the police records use a reference to "Mr. B's" as as short hand way of describing Towles Street in the vicinity of Mr. B's. Some of the incidents in the vicinity of Mr. B's constituted violent crimes. Since 1988, there have been: two murders; four attempted murders; 11 batteries with a firearm; two batteries with a knife; one sexual battery or attempted rape; one shooting into a vehicle; one robbery with a firearm; and two batteries with a dangerous weapon. Most of these crimes occurred outside of Mr. B's, and the evidence did not prove that they occurred on the licensed premises, or how close to the licensed premises they occurred. One incident that clearly occurred on the licensed premises was a fight that broke out during the early morning hours of February 12, 1995. One person was hit on the head with a claw hammer, and another was stabbed with a knife. After some of the participants left Mr. B's, fighting continued outside on the street. Someone telephoned the LCSO, and when deputies arrived, they witnessed four men kicking another who was lying on the ground behind a car, while approximately fifty other people stood watching. As the deputies approached, a man with a sawed-off shotgun walked up to the man lying on the ground and shot him in the leg. It was not clear from the evidence whether any of the people involved in the incident outside on the street had been patrons of Mr. B's. On or about August 3, 1993, the LCSO investigated an incident in which a patron of Mr. B's was shot while walking out the door of Mr. B's. The victim did not know who shot him or where the shot came from. On or about June 7, 1994, the LCSO investigated an incident involving an alleged sexual battery or attempted rape that occurred in the restroom at Mr. B's. The alleged victim in that case withdrew her complaint, and the case was closed. One LCSO deputy testified that he has received several telephone calls from a pay phone down the street at Edison Avenue reporting assaults and other crimes that allegedly occurred inside Mr. B's and that the victim reportedly was afraid to place the call to the police while still at Mr. B's (for fear of further assault.) But there was no specific evidence about any of these alleged crimes. Although some local residents blamed Mr. B's for the loud music heard in the neighborhood, especially on weekend nights, it was not clear whether the loud music being heard by the local residents actually is coming from Mr. B's, as opposed to being played from car stereos on the streets. The Respondent's Responsibility for the Violence and Noise It was not proven that Howell does anything to condone violence and noise in or around Mr. B's Lounge or that he is protecting criminals from apprehension by the LCSO. To the contrary, almost all of the crime reports to the LCSO from 2712 Towles Street were placed by Howell himself or his employees. Not only has Howell telephoned the police for assistance on many occasions, he also has put himself at risk of physical harm by helping law enforcement officers subdue violent subjects in and around the premises. In addition, Howell employs a bouncer who uses a metal detector to try to insure that no weapons are brought into Mr. B's and denies entrance to certain people known to cause problems. (Surprisingly, given the kind of people who congregate on Towles Street, there also was no evidence sufficient to support a finding of illegal drug use in or about the licensed premises.) One LCSO sergeant recalled an occasion when he confronted Howell about problems in and around Mr. B's and, in the sergeant's opinion, Howell treated him rudely. Howell does not recall the incident. No other law enforcement officer testified to any occasion when Howell was anything but cooperative with law enforcement. There was no evidence that the DABT counseled Howell on measures to take to reduce violence on his licensed premises. For example, the DABT could have required the Respondent to supervise and control the entire licensed premises, including both the building and grounds (including parking lot). The Respondent also could have been required to fully cooperate with law enforcement in its efforts to control crime in the area, including allowing LCSO complete access to the licensed premises. See Section 562.41(5), Fla. Stat. (1993). Instead, the evidence was that the LCSO complained to the DABT about Mr. B's on or about February 20, 1995, that the DABT inspected the premises on February 23, 1995, and that the DABT then initiated the proceedings that led to the issuance of the Emergency Suspension Order on or about March 16, 1995. Since Mr. B's has been under the Emergency Suspension Order, there have been markedly fewer problems for law enforcement and law-abiding residents in the area. The people who had been congregating near Mr. B's and causing problems either have found somewhere else to congregate or have dispersed for the time being. Mr. B's apparently attracted and served as a focal point for these people. It seems that suspending the Respondent's license has had a positive effect on the level of crime in the immediate vicinity. (However, some law enforcement officers seemed to support Howell's opinion that the people causing the problems near Mr. B's eventually will find another place to hang out and cause problems.) Clearly, the LCSO and many of the local residents would like to see Mr. B's closed permanently. But the reduction in violence and loitering after the Respondent's beverage license was suspended does not, in itself, prove that the Respondent was culpably responsible for violence and loitering that occurred while the licensed premises were open and operating. Howell operates a package store, not far from Mr. B's but within the city limits of Fort Myers, and near another lounge. City police regularly patrol the area, and it has relatively few of the problems experienced on Towles Street. A more frequent and visible law enforcement presence on Towles Street also would reduce violence and disturbances there. Five to ten years ago, Mr. B's operated in the same location with fewer problems. In those earlier years, LCSO patrolled the area more frequently. In those days, parking laws were enforced more consistently, and LCSO patrol cars could drive down Towles Street without difficulty. When loiterers were encountered in the street, LCSO required them to either go inside Mr. B's or go home.
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 (DABT), enter a final order: (1) dismissing the charges in the Notice to Show Cause against the Respondent, Edward Lee Howell; and (2) also dismissing the Notice to Show Cause seeking to impair the licensed location owned by the Respondent, William A. Bell. RECOMMENDED this 21st day of April, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-1403 and 95-1404 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. (However, the reputation attached to licensed premises actually applies not only to the licensed premises but also to Towles Street and the area surrounding Mr. B's. First sentence, rejected as not proven. (Many of the 176 calls on DABT Ex. 3 were not made from Mr. B's.) Second and third sentences, accepted and incorporated to the extent not subordinate or unnecessary. (However, it only was proven that a few of the violent acts actually were committed on the licensed premises.) Accepted and incorporated to the extent not subordinate or unnecessary. (One of the questions for determination in this case is the extent of Howell's "affirmative duty.") Rejected as not proven that the violent acts were committed by patrons or, if they were patrons, that they were committed on the licensed premises. Otherwise, the first sentence is accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. However, in the public mind, "Mr. B's" describes not just the licensed premises but also Towles Street and the area surrounding Mr. B's. First sentence, rejected as not proven that the initial service call reported the shooting of a patron. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the incidents described in the second sentence occurred during the investigation. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the 141 shell casings were recovered in the Respondent's "parking lot." (They were recovered from the immediate vicinity of Mr. B's, starting from the side of the building and extending for up to approximately 40 yards away, and including on the opposite side of Towles Street across from the licensed premises. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Nygaard warned Howell several times in 1990 before arresting him. Howell was tried and acquitted on a judge's ruling that it was not proven that the patron was drinking alcoholic beverages after hours. After Nygaard was reassigned to the East Zone in January, 1995, he again arrested Howell on similar charges, which Howell denies and which are still pending.) Accepted but subordinate and unnecessary. Accepted and incorporated. Howell's Proposed Findings of Fact. (Howell wrote a letter from which findings arguably have been proposed, as indicated.) Rejected as contrary to the greater weight of the evidence that the crimes described in the evidence did not "in the vicinity of" Mr. B's. Accepted that the Respondent recently added a parking lot and incorporated to the extent necessary. Accepted that, if they cooperate, the Respondent and LCSO can solve some of the problems, and incorporated to the extent necessary. Bell's Proposed Findings of Fact. (Bell also wrote a letter. Much of the letter is argument but findings arguably also have been proposed, as indicated. For purposes of these rulings, the unnumbered paragraphs of Bell's letter are treated as consecutive, separate proposed findings.) Accepted and incorporated. Rejected as argument and as not supported by any evidence. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as argument and as conclusion of law. Accepted and incorporated that Howell called LCSO frequently to report crime. Rejected as not proven that none of the incidents involved Mr. B's, that all involved "just the neighborhood"; accepted and incorporated that many of the calls involved incidents occurring off the licensed premises. The rest is rejected as argument and as subordinate and unnecessary. Rejected as not supported by the record that most of the alcoholic beverages drunk by people hanging around in Towles Street are from sources other than Mr. B's; accepted and incorporated that much is, and that all the liquor is. (Mr. B's has a Series 2-COP license.) Rejected as argument, as subordinate and unnecessary, and as unsupported by any evidence. Accepted and incorporated that LCSO has reduced patrols in the area, in part due to budgetary constraints but also in part due to the illegally parked cars that block Towles Street, and that Howell places many of the telephone calls reporting crime in the area. Otherwise, rejected in part as unsupported by any evidence, in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated that reduced police presence in areas like Towles Street increases crime. Otherwise, rejected as argument, as subordinate and as unnecessary. Accepted and incorporated that the DABT did not prove lack of due diligence. Otherwise, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. In part, rejected as contrary to the greater weight of the evidence (that only one of the violent crimes was reported to have originated in Mr. B's.) (See Findings of Fact 19 and 20.) Otherwise, accepted and incorporated in part. In part, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated that the wounds were not received on the licensed premises. Otherwise, rejected as cumulative. Accepted and incorporated that the evidence did not clearly identify either the victim or the assailant as being patrons. Otherwise, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Cumulative. Accepted and incorporated that Towles Street presents a difficult police problem and that increased patrols and manpower could help. Otherwise, rejected in part as unsupported by any evidence (the nine-block area), in part as argument, and in part as subordinate and unnecessary. Accepted and incorporated that many people congregate in the streets and that policing them is made difficult by the congestion. Otherwise, rejected in part as argument and in part as subordinate and unnecessary. 17.-18. Cumulative. Rejected that Tamayo's statement was naive. Accepted and incorporated that the problem could move elsewhere if Mr. B's were closed. Otherwise, argument, subordinate and unnecessary. Generally accepted and incorporated to the extent not subordinate or unnecessary, or argument. However, Bell does not seem to acknowledge the serious problems faced by law enforcement in the Towles Street. Rejected as contrary to the greater weight of the evidence that no problems occur before 2 a.m. Also, subordinate, unnecessary, and argument. 22.-23. Argument. COPIES FURNISHED: Thomas A. Klein, Esquire Chief Attorney Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1020 Edward Lee Howell 1348 Brook Hill Drive Ft. Myers, Florida 33916 William A. Bell 19450 Tammy Lane Ft. Myers, Florida 33917 Lynda L. Goodgame, Esquire General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris, Division Director Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1020
The Issue The issue presented concerns the entitlement of the named Petitioners to he granted a new Series 2-COP beverage license from the Respondent, in the face of a disapproval letter entered by the Director of the State of Florida, Division of Alcoholic Beverage and Tobacco.
Findings Of Fact Bruce F. Eggett and Timothy R. Miller, the named Petitioners in this cause, have made application for the issuance of a new Series 2-COP beverage license. This application has been made with the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco and in response to this request the Director of the Division of Alcoholic Beverages and Tobacco wrote the Petitioners on July 10, 1980, and in the course of that correspondence indicated his intent to deny the license application. The stated ground for denial was that "one of the applicants convicted of felonies within past fifteen years." The stated authority for the denial was Section 561.15, Florida Statutes. 1/ The Petitioners did not agree with the decision of the Director and orally requested an administrative hearing in this cause. This request was made with Captain Jack Wallace, Beverage Officer and District Supervisor for the Orlando, Florida, District. After receiving the oral request, this matter was made known to the legal staff of the Respondent and one of the staff attorneys, acting at the behest of the Director of the Division of Alcoholic Beverages and Tobacco, asked the Division of Administrative Hearings to conduct the formal hearing pursuant to Section 120.57(1), Florida Statutes. The hearing was conducted on September 8, 1980, and although the Petitioners had been duly noticed of the hearing, the Petitioners did not attend nor offer anything in behalf of their request for license. The Respondent presented copies of the license application request of both Bruce Francis Eggett and Timothy Robert Miller. The application form mentioned here is a personal questionnaire, individually, completed by the Petitioners. (Copies of those personal questionnaires pertaining to Eggett and Miller may be found as the Respondent's Exhibits No.1 and 2 admitted into evidence respectively.) Question 6 of the questionnaire asks the following: Have you ever been: Arrested for violation of any other law of this state, any other state or the United States? (excluding minor traffic) If answer to any of these questions is yes, list aliases and give full disclosure of charges, dates, arresting agencies and places of arrest." To this question, the Petitioner Eggett marked "yes" and stated (1) 1971 breaking and entering and (2) 1977, delivery of Methaquaalude. In response to the same question, Petitioner Miller answered that he had been arrested in 1968 for public intoxication and blocking traffic in Canton, Ohio. No further proof was offered by the Respondent on the question of these arrests and the disposition made of the matters.
Recommendation It is RECOMMENDED that the Director of the State of Florida, Division of Alcoholic beverage and Tobacco, deny the Petitioners, Bruce F. Eggett's and Timothy P. Miller's request to be granted a new Series 2-COP beverage license. DONE AND ENTERED this 24th day of September, 1980, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1980. Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1980.
