The Issue The issue presented in this case is whether the Petitioner has established by a preponderance of the evidence that Respondent sold alcoholic beverages to a person under the age of 21, in violation of Section 562.11(1)(a), Florida Statutes, as alleged in the Notice To Show Cause issued October 8, 1992.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent, Jin I. Jeon, (licensee), held license number 39-03637, series 2-APS, authorizing him to sell alcoholic beverages on the premises of the Diwan Food Store, located at 7504 N. Florida Avenue, Tampa, Hillsborough County, Florida (premises). On or about September 16, 1992, Special Agent A. Murray, Special Agent K. Hamilton, Investigative Aide D. Snow and Intern M. Dolitsky went to Diwan Food Store to investigate complaints of alcoholic beverage sales to minors. Investigative Aide D. Snow's date of birth is November 11, 1973. She was 18 years of age on September 16, 1992. In accordance with the intructions of the law enforcement officers, Investigative Aide Snow entered the premises and selected a one-quart bottle of Budweiser beer, an alcoholic beverage, from a cooler. The bottle of beer was sealed and clearly marked as an alcoholic beverage. She proceeded to the cash register, where the Respondent was waiting. Snow paid the Respondent, who rang up the sale on the register. The Respondent did not request to see Snow's identification, nor did he ask her whether she was at least 21 years of age. The Respondent's defense was that he was not the person who sold Snow the beer. When he was confronted with the charges, he disclaimed any knowledge of them and blamed an employee, Min Sup Lee, whom he believed must have been the person involved in the sale. He immediately fired Lee because of the charges. Lee testified that he was employed by the Respondent from March 1992 through January, 1993. Lee testified that he worked for Respondent six days a week, primarily at night, and that he was the person in charge of the cash register the majority of the time. He asserted that he probably worked the cash register on the night of the violation. However, he denied ever having seen either Special Agent Murray or Special Agent Hamilton, or Investigative Aide Snow, and he denied any knowledge of the incident. It seems clear that Lee was not the person who sold the beer to the Investigative Aide Snow. Communication problems (the Respondent's English language limitations) may be at the root of the Respondent's inability to understand and to carry out his responsibilities as a vendor under the Beverage Law. Later on the evening of the sale in question, Special Agent Murray returned to the store to talk to the Respondent about the violation but she was not confident that he understood anything she was saying. It is possible that, due to the Respondent's lack of facility with the English language, he did not understand that Murray was charging him with illegal sale of alcoholic beverages to a minor and that, when, some time later, the Respondent came understand the nature of the charge against him, he assumed that his employee must have been responsible. On the other hand, it is possible that the Respondent knows full well his responsibilities under the Beverage Law, and knows full well that he failed to meet those responsibilities on September 16, 1992, but that he knowingly and unfairly tried to use his employee to avoid his own responsibity. In any event, it is found that it was the Respondent, not Lee, who sold the beer to Snow and that, in all likelihood, Lee either was not working on September 16, 1992, or was occupied elsewhere with other responsibilities when Snow and Murray were in the store. The Division's standard penalty for the violation alleged in the Notice to Show Cause is a twenty-day license suspension and a thousand dollar ($1,000.00) civil penalty. This standard penalty has been noticed as proposed Rule 7A-2.022, Penalty Guidelines, pending public workshop and approval.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: (1) finding the Respondent guilty as charged in the Notice to Show Cause; (2) suspending the Respondent's alcoholic beverage license for twenty days; and (3) ordering the Respondent to pay a $1,000 civil penalty. RECOMMENDED this 27th day of July, 1993, 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 27th day of July, 1993. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32399-1007 Jin I. Jeon 7504 N. Florida Avenue Tampa, Florida 33604 John Harrison, Acting Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Donald D. Conn, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee Florida 32399-1000
Findings Of Fact By check dated September 17, 1974 Willie Calhoun attempted to pay the 1974-75 beverage license fee for Blount's Place and the check was returned to the Division stamped "Closed". The witness for the Division testified that the check was returned marked "NSF". Willie Calhoun is the son of Annie Lee and with his mother, owns the "6129 Corporation" known as King the Tailor. This is their primary business and the accounts from Blount's Place are co-mingled with those funds. This business is located in a section of Miami which has been the locale of numerous racial incidents and the proprietors were unable to obtain fire insurance. A fire occurred at this store in 1973 which burned the assets and records. The IRS audited the corporation and levied against the owners. When the check for the 1974-75 beverage license was written there was sufficient funds in Willie Calhoun's account to honor the check; however, before it was presented for payment the IRS had garnished the account. During the period between 1972 and December 2, 1975 Willie Calhoun and his mother paid the IRS some $42,000 in taxes and penalties. They now have returned to a solvent status and their beverage license payments are current.
Findings Of Fact Exhibit 1, a certified copy of the county court record of Gadsden County, Florida, shows that on August 4, 1972 Petitioner was charged with unlawfully selling beer without license, posted bond of $250, and on the date set for trial, did not appear and the bond was ordered forfeited. Exhibit 2, a certified copy of the commitment order by the circuit court of Gadsden County shows that on November 26, 1973 Willie Chandler was sentenced to the county jail for nine months on an adjudication of guilty of receiving stolen property. Exhibit 3, a certified copy of the county court of Gadsden County minutes book, shows that Willie Jasper Chandler was, on 8-16-71, found guilty of unlawfully selling beer "between the hours of 12:00 midnight Saturday and 7:00 A.M. Monday". Testifying in his own behalf Petitioner acknowledged guilt of selling beer on Sunday as charged in Exhibit 3. He acknowledged that he served time as shown by Exhibit 2, but that he was framed. With respect to the charge shown in Exhibit 1, Petitioner contends that he was asleep and never authorized his step daughter to sell any of the beer at the filling station he had just bought which, according to Chandler, constituted the basis for the charge.
The Issue The issue in this case is whether the Petitioner's application for an alcoholic beverage license should be approved or whether it should be disapproved for the reason set forth in the letter of disapproval dated April 13, 1990.
Findings Of Fact Based upon the testimony of the witness and the evidence admitted into evidence, the following findings of fact are made: The Department is the state agency authorized to process applications for alcoholic beverage licenses. On January 10, 1990, the Petitioner, Mary L. Hooks, submitted an application to the Department for a series 1-APS alcoholic beverage license. Petitioner sought the license for a business known as Mary's Bait & Tackle which is located at 110 Conners Highway, Canal Point, Palm Beach County, Florida. According to records submitted to the Department, Petitioner's mailing address was P.O. Box 604, Canal Point, Florida, 33438. In response to questions posed on the alcoholic beverage application form, Petitioner disclosed that she was convicted of a felony, the delivery of marijuana, on January 22, 1986. That charge and conviction stemmed from activities which had purportedly occurred in Palm Beach County, Florida. Petitioner's civil rights were restored by executive order entered December 2, 1988. On April 13, 1990, the Department notified the Petitioner that her application for license no. 60-5357, 1-APS had been disapproved. That notice provided the following reason and authority for the disapproval: Authority 561.15(1)(2) and 112.011, Florida Statutes Reason(s) Applicant, Mary L. Hooks, has been convicted of a felony within the last past fifteen years and is not believed to be of good moral character. While Mrs. Hooks has a Restoration of Civil Rights, the crime for which she was convicted directly relates to the alcoholic beverage laws and, for this reason, the application is being denied. Petitioner timely filed a challenge to the notice of disapproval, but did not appear for the formal hearing. No evidence was presented on her behalf.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco entered a final order denying Petitioner's application for a series 1-APS license. DONE AND ENTERED this 24th day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 August, 1990. APPENDIX TO CASE NO. 90-2916 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1, 2, 3, 5, and 6 are accepted. Paragraph 4 is rejected as not supported by the record or hearsay. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. COPIES FURNISHED: D. Lance Langston Assistant General Counsel Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Mary L. Hooks P.O. Box 605 Canal Point, FL 33438 Cpt. Debbie L. Gray Elisha Newton Dimick Building 111 Georgia Ave., Room 207 West Palm Beach, FL 33401 Leonard Ivey, Director Dept. of Business Regulation Div. of Alcoholic Beverages & Tobacco The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1007
The Issue This case concerns the issue of whether Respondents' beverage license should be suspended or revoked or otherwise disciplined for sale of alcoholic beverages to a minor. At the formal hearing, the Petitioner called as witnesses Ervin A. Hooper, Patricia Perkins, Christine Ellis, Paul C. Davis, and John Sokol. Petitioner offered and had admitted into evidence one exhibit. Respondent Richard N. Jiosne testified on behalf of Respondents and Respondents also called John Hanks as a witness. Respondents offered and had admitted two exhibits. Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with the findings and conclusions in this order, they were rejected as being not supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact At all times relevant to these proceedings, the Respondents Richard N. and Ann N. Jiosne were the holders of beverage license No. 39-186, Series 2APS. The license is issued to a drive-through beverage establishment located in Brandon, Florida, and known as the Beverage Castle. The licensed premise is a drive-through facility which sells beer, along with other grocery items and sundries. The Beverage Castle is operated by Mr. and Mrs. Jiosne, along with their son and an employee named John Hanks. Late in the afternoon or early evening of July 22, 1983, Patricia Perkins and Christine Ellis drove into the Beverage Castle for the purpose of buying beer. They drove in and stopped and a young boy that appeared to be between 12 and 14 years old came to the car and asked what they wanted. The driver, Patricia Perkins, told him that they wanted a six pack of Michelob beer and he immediately went to a cooler and removed a six pack of Michelob beer and handed it to an older gentleman. The older gentleman then handed the beer to Patricia Perkins and collected her money for the beer. At no time was Patricia Perkins asked for identification. She had not purchased beer at this establishment previously. The young boy was Ritchie Jiosne, the son of Mr. and Mrs. Jiosne, the owners. The older gentleman was John Hanks, the evening manager of the Beverage Castle. On July 22, 1983, Patricia Perkins was 16 years old and her date of birth is December 30, 1966. The passenger in the automobile, Christine Ellis, at the time of the purchase was 17 years old and her date of birth is December 28, 1965. Prior to Patricia Perkins and Christine Ellis entering the Beverage Castle, a deputy of the Hillsborough County Sheriff's Department had had the licensed premises under surveillance. He had observed several cars drive through with individuals who appeared to be young purchasing beer without being required to show identification. The officer also observed the purchase made by Patricia Perkins and Christine Ellis and observed no identification being shown by Patricia Perkins to either of the individuals working at the Beverage Castle that evening. The owners have a policy against selling alcoholic beverages to minors. There is a sign posted next to the register which states: LOOK WE ABSOLUTELY DO NOT, WILL NOT, AND REFUSE TO SERVE ANYONE!, WHO IS ASKED AND DOES NOT HAVE PROPER I.D. HAVE YOUR CARD READY. The employees have been instructed to not serve alcoholic beverages to minors and to check identification. The Beverage Castle has a reputation within the high school students of Brandon, Florida, as a place where minors can buy beer. A prior violation was brought against the Respondents' license within the past year for sale of alcoholic beverages to a minor. That case resulted in recommended dismissal by the Hearing Officer and the Director of the Division of alcoholic Beverages and Tobacco adopted that recommendation and dismissed the case.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered finding the Respondents guilty of the charge as set forth above and imposing a civil penalty of $150.00. DONE and ORDERED this 8th day of June 1984, in Tallahassee, Florida. MARVIN E. CHAVIS 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 8th day of June 1984. COPIES FURNISHED: Louisa Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. Patrick McElroy, Esquire Suite 200 - Rutland Bank Building 1499 Gulf to Bay Boulevard Clearwater, Florida 33515 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether respondent's alcoholic beverage license should be revoked or suspended on grounds that its corporate officer was convicted of a federal crime--Conspiracy to Import Marijuana.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: In 1977, the Division issued an alcoholic beverage license No. 23-276, series 4-COP, to licensee. (Joint Exhibit Nos. 1, 8.) At all times material to this proceeding, Eugene Willner has been an owner and officer of the licensee corporation. On August 27, 1980, Eugene Willner was convicted of violating federal law; the U.S. District Court of the Eastern District of Louisiana found him guilty of Conspiracy to Import Marijuana, a violation of Title 21 U.S.C. 963. (Joint Exhibit Nos. 1, 4, 8.) By application dated March 10, 1981, the licensee sought Division approval to transfer the beverage license in question to a new owner. The Division notified licensee that it intended to deny the application because of the pending administrative charge against the licensee, the charge which is the subject of this proceeding. (Joint Exhibit Nos. 5, 6, 8.)
Recommendation Based on the foregoing, it is RECOMMENDED: That licensee's alcoholic beverage license No. 23-276, series 4-COP, be REVOKED. DONE AND RECOMMENDED this 3rd day of February, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1982.
The Issue Should Petitioner discipline Respondent's Alcoholic Beverage License based upon Respondent's president selling, serving or giving an alcoholic beverage, on the licensed premises, to a person under the age of twenty-one contrary, to Section 562.11(1)(a), Florida Statutes?
Findings Of Fact Respondent, Rose Anne, Inc., d/b/a Scooters, holds license number 74-05039 SRX, Series 4COP issued by Petitioner for the premises located at 217 North Woodland Boulevard, Deland, Florida. Scott A. Price is the president and owner of that business. On October 22, 1997, Petitioner, through its agents, made random checks of businesses holding alcoholic beverage licenses issued by Petitioner. Those checks were made in Deland, Florida. In particular, the checks were designed to determine if businesses holding alcoholic beverage licenses were acting in compliance with the prohibition against selling, serving or giving alcoholic beverages on their licensed premises, to persons under the age of twenty-one, in violation of Section 562.11(1)(a), Florida Statutes. Respondent's premises was one of the licensed premises checked on that date. Petitioner's employees involved in the random checks included Special Agents Betty D. Adazzio, Melissa Winford and Kristin Hunt, operating with the assistance of Sergeant Steve Dovi of the Deland Police Department. The law enforcement personnel were supported in their activities by Ryan N. Luttrell, an under-aged person, who was used to determine if persons within the licensed premises under consideration would sell, serve or give Mr. Luttrell an alcoholic beverage in the licensed premises. Mr. Lutrell was born on November 23, 1978, as reflected on a Florida driver's license issued to him. That driver's license bore a picture of Mr. Luttrell which accurately depicted his appearance at the time. The license also indicated in bold print that Mr. Luttrell was under twenty-one years of age. In contact with Mr. Price, within Respondent's licensed premises, Mr. Luttrell used the license as a means of identification. Mr. Luttrell entered the licensed premises on the date in question. At that moment Mr. Price was tending the bar in the premises. Mr. Price brought Mr. Luttrell a menu and asked Mr. Luttrell if he wanted anything to drink. Mr.Luttrell told Mr. Price to give Mr. Luttrell a minute to decide. Mr. Luttrell then asked Mr. Price for a Bud Lite, an alcoholic beverage which is a beer. Mr. Luttrell also ordered cheese sticks. Mr. Price asked Mr. Luttrell for identification. Mr. Luttrell then produced the driver's license that has been described. Mr. Price briefly looked at the driver's license. Then Mr. Price took the driver's license to another area within the premises and held the license up by a chart. Mr. Price came back to where Mr. Luttrell was seated and asked what Mr. Luttrell would like. Mr. Luttrell repeated that he wanted a Bud Lite. Mr. Price filled a glass with beer and brought it back to Mr. Luttrell's location placing the glass of beer and a napkin in front of Mr. Luttrell. Mr. Price remarked that the cheese sticks would be right out. Mr. Luttrell asked Mr. Price where the bathroom was. Mr. Luttrell took the beer in the glass with him and took a sample of the beer and placed it in a vial. Mr. Luttrell went back to the bar area, and in further conversation with Mr. Price, Mr. Luttrell claimed that his pager had gone off, and used that excuse as a reason to exit the licensed premises. Once outside, Mr. Luttrell realized that he had not paid for the beer and Agent Adazzio sent Mr. Luttrell back into the premises to pay it. Mr. Luttrell re-entered the premises. Mr. Price was still behind the bar. Mr. Luttrell paid Mr. Price for the beer that Mr. Price had given Mr. Luttrell. Mr. Luttrell then again exited the licensed premises. At the time of the incident Respondent was not qualified as a Responsible Vendor pursuant to Section 561.705, Florida Statutes, and entitled to protections against suspension or revocation of its beverage license for the illegal sale of an alcoholic beverage to a person not of lawful drinking age, as envisioned by Section 561.706, Florida Statutes. Respondent's disciplinary history involves a violation of Section 561.501, Florida Statutes, for failure to timely file surcharge reports and to remit surcharges collected for periods in 1990. That case was resolved by entry into a Consent Agreement on December 17, 1990, in which Respondent acknowledged the violations and agreed to remit the sum of $250.00, as a civil penalty. This circumstance was in association with Respondent doing business as Scooters Coast To Coast at U.S. Highway #1, MM92.5, Tavernier, Monroe County, Florida, under license number 54-00658, Series 2COP.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: It is recommended that a final order be entered finding Respondent in violation of the aforementioned provisions and imposing a seven day suspension, together with a civil penalty of $1,000.00. DONE AND ENTERED this 12th day of August, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1998. COPIES FURNISHED: Susan C. Felker-Little, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Scott A. Price, President Rose Anne, Inc., d/b/a Scooters 102½ West Rich Avenue Deland, Florida 32720 Richard Boyd, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact Respondent Lois Davis, who does business under the name of The Cotton Club, holds License No. 60-00245, a Series 2-COP license issued by petitioner authorizing her to sell beer and wine for consumption on the licensed premises, which are located at 233 Southwest Fifth Street, Belle Glade, Florida. At one time Ms. Davis held License No. 60-576 which authorized sale of hard liquor as well as wine and beer for consumption on the premises of The Cotton Club. On January 25, 1980, as a result of foreclosure proceedings against respondent's landlords, an order was entered directing that "all right, title and interest to Alcoholic Beverage License 60-576" be conveyed to Mr. and Mrs. Robert Daniel. Robert Daniel, et ux. v. Gilbert Adams, et al. v. Lois Davis, No. 78-4667 CA (L) 01 G (Fla. 17th Cir.). At the time respondent applied for her current license, shortly before the previous license expired, she asked that the latter be extended so that she could sell off her stock of hard or spirituous liquors. Petitioner's Lieutenant Little explained that the matter was before a court but agreed to approach the judge. In September of 1980, L. Dell Grieve, a six-year veteran of the Belle Glade Police Department, visited The Cotton Club, saw liquor in a storeroom, and told the bartender that it should be removed. The bartender protested that it was all right to store the liquor while something was being worked out about the license, or words to that effect. Beverage Officers Ramey and Rabie accompanied Officer Grieve on November 15, 1980, on a visit to The Cotton Club, where they found Andre Lavince Moore, respondent's son, tending bar. In the storeroom, they found numerous bottles of spirituous liquors which they confiscated. Petitioner's Exhibit No. Wine and beer were stored in a separate place in the same storeroom. At no time after she lost License No. 60-576 did respondent or her agents or employees sell any alcoholic beverages other than wine or beer at The Cotton Club, or have any intention of doing so without petitioner's permission.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint. DONE AND ENTERED this 14th day of May, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II 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 14th day of May, 1981. COPIES FURNISHED: Daniel C. Brown, Esquire Lt. J. E. Little 725 South Bronough Street Post Office Drawer 2750 Tallahassee, Florida 32301 West Palm Beach, FL 33402 Lois Davis The Cotton Club 233 Southwest Fifth Street Belle Glade, Florida
Findings Of Fact Petitioner previously operated the Casinea Lounge in Waverly, Florida, which he shut down in September, 1980. He plans to reopen this lounge if he can secure the requested beverage license. Petitioner was adjudicated guilty of violating a Polk County ordinance on June 6, 1980, regarding an after-hours sale of an alcoholic beverage. There is no other impediment to grant of this application.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a Final Order granting Petitioner's application. DONE and ENTERED this 8th day of December, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1982.
Findings Of Fact On March 25, 1983, Mr. Luther Thomas, petitioner in this case, who operates an automotive repair shop in Gainesville, Florida, entered the Respondent's local office and secured an Application for Alcoholic Beverage License (DBR Form 700-1) and the related Personal Questionnaire (DBR Form 710L). These forms were filled out, signed under oath by Petitioner and submitted to Respondent for processing on March 28, 1983. At the time the forms were submitted, the questionnaire had on it a question regarding whether the applicant had ever been arrested for or charged with a violation of a felony law or misdemeanor law of the State of Florida, any other state, or the United States, excluding minor traffic laws. This form was marked "No" by Petitioner. Whether he did it at the time of submittal or when it was brought to his attention by a beverage officer who came to his place of business is in question, but when it was done is immaterial. The fact remains that Petitioner stated "No" when in fact, according to his testimony at the hearing, he had been charged several times: once for failure to pay support, and twice for driving while under the influence. Also, in addition, in 1968, he appeared before a judge on an allegation of assault with intent to commit homicide, but was never arrested. He voluntarily reported to the courthouse without being placed under arrest, and the allegation was dismissed. However, since Petitioner could not state with any particularity what actually happened, and since Respondent did not produce any evidence of a charge or arrest, this incident is not considered as being reportable. The DWIs and the failures to pay support were not felonies at the time of commission. Sometime after the submission of the application, Beverage Officer Woodrow came out to Petitioner's place of business to do a sketch of the layout which was needed to process the application. During this visit, Woodrow indicated to Petitioner that they needed to talk about his arrest record. At this point, Petitioner responded to the effect that he "ain't never been arrested." The prior involvement for assault with intent to commit homicide was known to Respondent and considered at the time it issued him a prior beverage license in 1973 or 1974. Mr. Thomas felt that since he had not been arrested then, since the allegation had been dismissed, and since he had previously been issued a license with this information known to Respondent, there was no reason to list it again. This former license lapsed when Mr. Thomas went out of business after a heart attack. It was not disciplined or revoked by Respondent. The questionnaire form which Petitioner filled out contains, in the oath, the reference to Section 559.791, Florida Statutes (1981), which provides that a false statement in the questionnaire or application constitutes grounds for denial of a license. The "pending and undetermined criminal and felony charges" referred to in Respondent's letter of denial, according to Petitioner, related to three separate worthless checks. These charges were reduced to a misdemeanor and resolved by Petitioner making restitution. No jail time or fine was imposed. Mr. Thomas is presently facing misdemeanor charges in Alachua County, Florida, in violation of Section 837.06, Florida Statutes (1981) , based on the same alleged false statement in the questionnaire as are used as basis for denial of his license here.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner, Luther Thomas, doing business as Lake Road Beverages, be issued an alcoholic beverage license as applied for. RECOMMENDED this 14th day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 14th day of December, 1983. COPIES FURNISHED: Mr. Luther Thomas 2824 N.E. 12th Street Gainesville, Florida 32601 Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
