The Issue Whether petitioner's application to change its corporate officers should be denied because the proposed officer allegedly lacks good moral character.
Findings Of Fact The Village Zoo holds alcoholic beverage license no. 16-839, Series 4- COP SR, authorizing it to serve alcoholic beverages at its bar (the "licensed premises") at 900 Sunrise Lane, Fort Lauderdale, Florida. On September 22, 1982, the Village Zoo filed an application with DABT to change corporate officers by adding James C. Dowd as a vice president1. While this application was pending, James C. Dowd was employed as one of the managers at the Village Zoo. One of his duties was to help the bartender serve alcoholic beverages on an as-needed basis. On November 5, 1982, undercover Beverage Officer Tom Wheeler, 24, entered the licensed premises to investigate complaints of alleged sales of alcoholic beverages to underaged persons--persons under the age of 19. He paid a cover charge at the door, his identification was not checked. Inside, he saw 50-75 young patrons crowded in the area of the second floor bar. Two persons were tending bar, one of whom was James C. Dowd. Officer Wheeler saw two young patrons, William Esler, 17, and Kelly Heatherman, 18, approach the bar and ordered drinks from Mr. Dowd, who then served them two alcoholic beverages. (William Esler ordered and was served a Whiskey and Seven- up; Kelly Heatherman ordered and was served a Budweiser beer). Mr. Dowd served them these drinks without asking their age or checking their identification. When these two underaged individuals ordered the drinks, they were standing at the bar and in plain view of Mr. Dowd; they were neither standing behind others nor hidden from view. After Mr. Dowd served these two drinks, he was arrested and charged with the crime of serving alcoholic beverages to persons under the age of 19. When Kelly Heatherman and William Esler, the two underaged persons, entered the premises that evening, they paid a cover charge but their age was not questioned at the entry door. Neither was their identification checked. The Village Zoo has a reputation in the community as a popular gathering place for young people. Both William Esler and Kelly Heatherman had been there before. William Esler had been there twice, prior to the November 5, 1982, incident, and once since. His identification had never been checked, although he did not order a drink on his last visit. Kelly Heatherman had been there every week from approximately September (1982) to November 5, 1982. During most of his visits, he ordered alcoholic beverages. One time, his identification was checked at the door and he was turned away. Since the November 5, 1982, incident, he has returned to the Village Zoo a couple of times. James C. Dowd was aware of Heatherman's continued patronage of the Village Zoo and described Heatherman as a regular customer. Heatherman continued to order and was served alcoholic beverages during his visits to the Village Zoo after November 5, 1982. After November 5, 1982, Heatherman continued to enter the Village Zoo without having his identification checked, despite the fact he was identified to the Village Zoo and James C. Dowd, on November 5, 1982, as being under the legal age (19) to possess or consume alcoholic beverages. Both William Esler and Kelly Heatherman were, as of the date of the administrative hearing on this case, under the age of 19 years. James C. Dowd knew or should have known that Kelly Heatherman's consumption of alcoholic beverages served by the Village Zoo after November 5, 1982, was contrary to the Beverage Law. (This paragraph contains findings of fact which are in addition to those found by the Hearing Officer. Such additional facts are not contrary to those found by the Hearing Officer, rather they amplify the same and are supported by competent, substantial evidence in the form of sworn testimony of Kelly Heatherman, William Esler and James C. Dowd). The Village Zoo had an announced policy prohibiting the sale of alcoholic beverages to underaged persons and prohibiting their entry onto the licensed premises. To enforce this policy, two persons were posted at the entryway to check identification and collect cover charges from patrons. Peter Balcunas, and off-duty Fort Lauderdale policeman, was also hired to provide security and assistance to the door-checkers. He was ordinarily posted near the front door, outside the premises. Under this Village Zoo policy, the two door-checkers had the primary responsibility to check the identification of patrons and prevent underaged persons from entering the premises. All employees, however, had the duty to check the identification of any patron if there was any question or doubt about whether the individual was of drinking age. Both William Esler and Kelly Heatherman fall within this "questionable or doubtful" category. From their demeanor and outward appearance at hearing, it is difficult to determine their true age. Their faces are mature for their age and they could reasonably pass as 18, 19 or 20-year olds. On the evening of November 5, 1982, Kelly Heatherman and William Esler entered the premises, walking past the door-checkers and Officer Balcunas. They then proceeded to the second floor bar and ordered drinks from Mr. Dowd. Their age was not questioned and their identification was not checked. The Village Zoo's announced policy of forbidding sale of alcoholic beverages to minors, including steps taken to enforce it, compares favorably with those of similar businesses in the area serving alcoholic beverages. James C. Dowd, the person allegedly lacking in good moral character, has a reputation in the community as an honest trustworthy, hardworking and law- abiding man. He attends church regularly. His business associates view him as a man who honors his financial obligations and who has good moral character. Mr. Dowd does not recall serving alcoholic beverages to William Esler and Kelly Heatherman on November 5, 1982. There was a crowd of customers near the bar at the time, and he was helping the bartender serve drinks as quickly as possible. Nevertheless, in his haste, he violated the Village Zoo policy. He served alcoholic beverages to two youthful-looking persons whose age was difficult to determine, without inquiring as to their age or checking their identification. There is no evidence that he knowingly and intentionally sold alcoholic beverages to underaged persons. (Two sentences contained in the Recommended Order at this place, were deleted as such constitute conclusions of law, not of fact). Although there was evidence that the two underaged persons had been served alcoholic beverages at the Village Zoo prior to and after November 5, 1982, it was not shown that Mr. Dowd served them or that (as one of the managers) he was culpably responsible.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Village Zoo's application to change corporate officers be granted. DONE and ENTERED this 29th day of June, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1983.
The Issue Whether petitioner's application for a beverage license should be denied on the ground that she was convicted of a beverage law violation within the past five years.
Findings Of Fact In April, 1981, Applicant applied to the Division for a 2-COP alcoholic beverage license. If granted, the license will allow her to sell beer and wine for consumption on the premises of her business, Disco Junction, located at 1702 Hammondville Road, Pompano Beach, Florida. (R-2.) Court records indicate that, by judgment dated January 22, 1981, Applicant was convicted by the County Court of Broward County on three charges of selling liquor without a license. She was sentenced to 90 days' probation and required to pay certain fines, contributions, and costs. These beverage law violations constitute the sole ground for the Division's denial of her license. (Testimony of Boyd; R-1.) In December, 1980, Applicant met William Piroth, a Pompano Beach police officer. He is assigned to investigate crimes committed in the area of Pompano Beach where she seeks to operate her business establishment. Since December, 1980, she has assisted him by providing information concerning criminal activity in the area. If she is licensed, she has promised to continue doing so. (Testimony of Broadway, Piroth.) Based on her help in the past and her promise of continued assistance in the future, Officer Piroth asked the Broward County Court to set aside her earlier conviction so that she would be able to qualify for a beverage license. The court granted his request and, by order rendered on August 25, 1981, set aside its earlier judgment and withheld adjudication. (Testimony of Piroth;
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Applicant's request for a beverage license be GRANTED. DONE AND ORDERED this 1st day of December, 1981, 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 1st day of December, 1981.
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
The Issue Whether the Petitioners are entitled to a transfer of the quota license they attempted to apply for in their initial application. Whether the Petitioners are entitled to an alcoholic beverage license for a restaurant based upon their second application. Whether the Petitioners are entitled to an alcoholic beverage license based upon their third application in spite of the county's refusal to approve the zoning of the proposed location until a pending declaratory judgment before the circuit court is resolved. Whether the Respondent is estopped to deny any of the applications because of the representations made by a field agent for the agency that to his knowledge, there were no problems at the proposed location.
Findings Of Fact The joint stipulation of facts entered into by the parties on December 21, 1988, are adopted as the findings of fact in this proceeding. A copy of the stipulation is attached and made part of this Recommended Order.
The Issue Whether Respondent unlawfully obstructed and/or hindered the inspection of his licensed premises by law enforcement officers and allowed or otherwise condoned the sale of alcoholic beverages in violation of a municipal ordinance concerning the hours of sale and, if so, what disciplinary action is warranted.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with regulating the sale of alcoholic beverages and tobacco in Florida. Respondent, El Greco, Inc., d/b/a El Greco is the holder of alcoholic beverage license number 63-00458, series 4-COP. Respondent's premises is located at 1109 East Main Street in Lakeland, Florida. Respondent's president is John Houvardis (herein Respondent). Petitioner issued two official warnings to Respondent on October 19, 1992. One warning was for a violation of Section 562.41, Florida Statutes, to wit, hindering or obstructing a law enforcement officer from conducting a search of the licensed premises which included locking a law enforcement officer from the premises. The other warning was for an alleged violation of the Lakeland City Ordinance relating to the sale, serving, or consumption of alcoholic beverages after the legal hours of sale. On January 29, 1994, Officer Ed Mingus of the Lakeland Police Department was dispatched to Respondent's premises at approximately 2:29 a.m. Officer Mingus was dispatched to investigate a complaint of "loud noises and sale of alcoholic beverages after hours". When Officer Mingus arrived at Respondent's premises on January 29, 1994, he heard noise coming from the licensed premises and observed several cars in the parking lot. The front door of the licensed premises was locked and Officer Mingus knocked to gain entry. An unidentified person answered the door and Officer Mingus identified himself as a police officer and requested entrance. Within seconds after requesting entrance, Respondent opened the door and allowed Officer Mingus inside the premises. At the time, approximately five employees were cleaning the licensed premises and no alcoholic beverages were observed either being served or consumed by Officer Mingus. Officer Mingus gained entry to the premises within five minutes of first knocking on the door. Officer Mingus suspected that there were other people inside and, in this regard, he asked Respondent if there were, in fact, other people in the licensed premises. Officer Mingus told Respondent of his suspicion that he was violating the hours of sale whereupon Respondent reiterated of his awareness of the ordinance prohibiting sale of alcoholic beverages after hours and insisted that he was not violating the ordinance. Officer Mingus thereafter requested permission from Respondent to search the licensed premises and Respondent consented to a search. Officer Mingus observed approximately nine or ten patrons in the kitchen area. Officer Mingus again reiterated his suspicion that Respondent was violating the municipal laws concerning the hours of sale and gave Respondent a verbal warning that if he was caught violating the ordinance, he would face criminal and administrative sanctions. Detective Denny Phillips of the Lakeland Police Department conducted a sight investigation of Respondent's premises on January 29, 1994, both prior to and while Officer Mingus was inside the licensed premises. Detective Phillips was across the street from the licensed premises with an unobstructed view of the premises on January 29, 1994. On February 26, 1994, Detective Phillips continued his investigation of Respondent's licensed premises. Detective Phillips instructed Officer Ed Cain, also a patrol officer for the Lakeland Police Department, to enter the licensed premises in an undercover capacity. Officer Cain was instructed to attempt to remain in the licensed premises after 2:00 a.m., and to purchase an alcoholic beverage. Officer Cain entered the licensed premises at approximately 12:30 a.m. on February 26, 1994, and observed a crowded lounge consisting mostly of college-aged patrons. Respondent was observed inside the premises. Officer Cain observed a large number of the patrons leaving the premises by 1:00 a.m., and Respondent's employees escorted the remaining patrons from the licensed premises at approximately 1:45 a.m. Officer Cain was not asked to leave the licensed premises and he remained along with approximately four or five other patrons. At approximately 2:10 a.m., Officer Cain ordered a shot of Sambuca, an alcoholic beverage described as a licorice liqueur, from a female employee. Officer Cain placed $2.00 for the beverage on the counter of the bar. Officer Cain observed that same employee placing the money in a bank bag containing the contents of the cash register. Officer Cain is familiar with alcoholic beverages and what they smell and taste like and has consumed alcoholic beverages prior to the evening of February 26, 1994. Officer Cain exited the licensed premises and notified Detective Phillips that he had purchased an alcoholic beverage from an employee after 2:00 a.m. Detective Phillips entered the licensed premises and met with Respondent who was still in the licensed premises. Detective Phillips advised Respondent that undercover officer Cain had purchased an alcoholic beverage from an employee after 2:00 a.m. and that Respondent and the employee would be cited for violation of the municipal ordinance respecting the sale of alcoholic beverages after hours. Respondent usually has extra food left over from functions that he has at the licensed premises from time to time and the employees and others who were in the kitchen area of the licensed premises after 2:00 a.m., on January 29, 1994, were eating some of that extra food.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order imposing a civil penalty against Respondent in the amount of one thousand ($1,000) dollars for the above-referenced violation (sale of an alcoholic beverage after hours). DONE AND ENTERED this 22nd day of November, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 22nd day of November, 1994. APPENDIX TO RECOMMENDED ORDER Rulings on Petitioner's proposed findings of fact: Paragraph 4, rejected, unnecessary and not probative. Paragraph 10, adopted as modified, paragraph 5, Recommended Order. Paragraph 16, adopted as modified, paragraph 8, Recommended Order. Paragraph 20, rejected, contrary to the greater weight of evidence, paragraphs 11 and 12, Recommended Order. Paragraph 27, rejected as being a recitation of testimony, and not proposed findings of fact. COPIES FURNISHED: John M. Houvardas, President El Greco, Inc. 1109 East Main Street Lakeland, Florida 33801 Richard Courtemanche, Jr., Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris, Acting Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondents hold alcoholic beverage license number 60- 0122, series 2- COP, and do business at 704 South Military Trail, West Palm Beach under the name of The Brass Bull. Respondents have operated The Brass Bull for six years without any complaints from law enforcement agencies until the execution of a search warrant on the premises on November 29, 1994. On September 12, 1984 the Petitioner and the Palm Beach County Sheriff's Office began an investigation of The Brass Bull and met with a confidential informant, hereinafter referred to as CI, who was employed at the time as a dancer at The Brass Bull. The CI agreed to make introductions for law enforcement officers to employees on the premises and was paid $150 on November 26, 1964 for making these introductions. The CI had been placed on probation in July, 1983 and was on probation during this investigation. The CI's husband was placed on probation on September 11, 1984. On September 14, 1984 Investigator Kenneth Goodman, Division of Alcoholic Beverages and Tobacco, and Sergeant David R. Harris, Riviera Beach Police Department, entered the licensed premises and talked with a dancer identified as "Linda" about the purchase of some marijuana. Linda gave Investigator Goodman a single marijuana cigarette analyzed as containing 260 milligrams of cannabis, but she did not have any to sell. Investigator Goodman and Sgt. Harris met another dancer on the premises, identified as "Sunrise," on September 19, 1984 and discussed their desire to purchase some cocaine. Sunrise was later identified as Dawn Birnbaum. Sgt. Harris gave Sunrise $40, she left the premises through the front door, returned in a few minutes and handed Sgt. Harris two aluminum foil packets later analyzed as containing 200 milligrams of cocaine. Investigator Goodman also purchased 100 milligrams of cocaine from Sunrise on September 19, 1984. These sales took place on the premises while other patrons were present, although Sunrise left the premises to obtain the cocaine for the sales. On September 25, 1984, Sgt. Harris entered the licensed premises with Investigator Richard Walker, Division of Alcoholic Beverages and Tobacco. Investigator Walker purchased 505 milligrams of cocaine from Sunrise who left the premises to obtain the cocaine but returned to complete the sale on the premises. Other patrons were on the premises at the time of the transaction. Investigator Goodman and Sgt. Harris were on the licensed premises on October 6, 1984 and discussed their desire to purchase cocaine with a dancer identified as Christine Flynn. They each gave Flynn $45, she left the premises, returned and handed them each a plastic baggie containing a total of 590 milligrams of cocaine. Other patrons were on the premises at the time of the transaction. On October 12, 1984, Investigator Goodman and Sgt. Harris entered the premises and met a waitress identified as April Finster. Investigator Goodman asked to buy some marijuana. She went into a back room on the premises and returned with one marijuana cigarette containing 300 milligrams of cannabis, which she gave to Investigator Goodman. On October 16, 1984, Sgt. Harris and Investigator Walker met a dancer identified as "Blondie" on the premises and discussed their desire to purchase some cocaine from Blondie. The CI was present during this discussion, took $20 from Sgt. Harris, and then left the premises with Blondie. When Blondie and the CI returned, the CI gave Sgt. Harris a plastic bag which was heat sealed and filled with 110 milligrams of cocaine. Blondie stated that she always heat sealed her bags. Later Sgt. Harris gave Blondie $100, she brought him $70 change and then went into the dressing room. When Blondie exited the dressing room she approached the CI and they approached the table where Sgt. Harris was sitting. The CI placed a book of matches on the table and Blondie told Harris the cocaine was in the book of matches. Sgt. Harris found a heat sealed plastic bag containing 135 milligrams of cocaine in the matches. There were other patrons on the premises when these transactions took place. Sgt. Harris and Investigator Walker met a dancer named "Lola" on the premises on October 30, 1984. Sgt. Harris gave Lola $80, she entered the dressing room and then returned to where Sgt. Harris was seated with a white towel around her hand. Inside the towel was a bag containing 800 milligrams of cocaine. While on the premises with Sgt. Harris on October 31, 1984, Investigator Walker gave Lola $100. She left the premises and returned with a plastic bag containing 560 milligrams of cocaine which she gave to Investigator Walker. On November 6, 1984 Investigator Goodman was on the premises with Sgt. Harris, and Investigator Goodman gave Lola $55. Lola approached a white male patron and then returned to Investigator Goodman and gave him a plastic bag containing 400 milligrams of cocaine. On November 20, 1984 Investigator Goodman was on the premises with Sgt. Harris. Lola approached Investigator Goodman and asked him if he wanted to buy some cocaine. He gave her $50, she left the premises and returned with a bag containing 300 milligrams of cocaine which she gave to Investigator Goodman. Other patrons were on the premises at the time of the transaction. Investigator Goodman and Sgt. Harris were also on the licensed premises on September 28, October 9 and 10, November 1 and 5. On each occasion they discussed the purchase of controlled substances as defined in Section 893.03, F.S., with Respondents' employees who were on the premises at the time of these discussions. No actual transactions took place on these dates. In brief summary of the foregoing, during the period of September 14 to November 20, 1984, transactions involving the sale of a total of 3.7 grams of cocaine and gifts of 560 milligrams of cannabis took place at The Brass Bull between Respondents' employees and Investigators Goodman and Walker, and Sgt. Harris. There were also five occasions when the purchase of controlled substances was discussed with Respondents' employees on the premises but no actual transaction took place. The CI was on the premises during most of these occasions, introducing the law enforcement officers to the various employees. The transactions usually took place while other patrons were on the premises, and included Respondents' employees passing the controlled substances on or above the table at which the officers were seated. On some occasions the employees left the premises after receiving money from the officers and returned a short time later with the controlled substance which they then gave to the officers on the premises. Respondents do not take an active role in managing The Brass Bull. They rely on a day manager and a night manager to hire, fire and discipline employees, to schedule the dancers, and to enforce the rules which are posted in the employees' dressing room. Rule 11 prohibits employees from having drugs or "liquors" on the premises, and states that anyone having these substances on the premises will be terminated immediately. Respondents never met with employees, other than their managers with whom they met or talked almost daily. Conversations and meetings with the managers were usually social, however, and generally did not involve business matters. Business meetings with the managers were held infrequently. Robert Meloche only visited the premises at 7:00 a.m. when no one else was present in order to review the prior night's receipts. At all times relevant hereto, Respondents employed various dancers on the licensed premises under the terms of an Entertainment Booking Agreement. All dancers were required to sign the booking agreement and agree to working conditions prescribed by the Respondents, including compensation arrangements, the number and color of their costumes, work hours, and the additional duties of cleaning and serving tables. Respondents also prescribed a set of seventeen (17) rules for all dancers and other employees. The above referenced individuals named Linda, Sunrise, Christine Flynn, April Finster, Blondie, Lola, and the Confidential Informant were employees of Respondents' at the licensed premises during the time relevant to this case. In making the above findings, the undersigned Hearing Officer has considered proposed findings of fact submitted by the parties pursuant to Section 120.57(1)(b)4., F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, unnecessary or not based on competent substantial evidence. Specifically, Respondents' proposed findings as to Counts 14, 15 and 16 are rejected since they are not based on competent substantial evidence and are otherwise immaterial and irrelevant.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a final order revoking Respondent's license number 60-0122, series 2-COP. DONE and ENTERED this 1st day of April, 1985 at Tallahassee, Florida. DONALD D. CONN 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 1st day of April, 1985. COPIES FURNISHED: Sandra Stockwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant to the proceedings in this matter, the Respondents held beverage license No. 39-186, Series 2-APS. The license is issued to a drive-through beverage facility called the Beverage Castle located in Brandon, Florida. The Beverage Castle is owned by the Respondents and managed by Mr. Richard Jiosne. On April 29, 1983, Deputies Scoffield and Olsen of the Hillsborough County Sheriff's Department initiated surveillance at the licensed premises because of complaints that their office had received of sales of alcoholic beverages to minors. Deputy Olsen located himself in a wooded area approximately 25 to 30 yards from the licensed premises. Officer Scoffield was in a patrol car approximately 100 yards north of the licensed premises. Officer Olsen observed the licensed premises with a set of field glasses. At some point on the evening of April 29, 1983, the specific time being unknown, two white females in a red and white Mustang drove into the licensed premises and purchased a six-pack of Michelob beer. The driver of the Mustang was Tammy Jo Gibson and her passenger was Charlene Carroll Rogers. Both of these women were 18 years of age at the time of the purchase. Neither of the two women was asked for any identification prior to their purchase of the six- pack of beer. Tammy Jo Gibson did not testify at the formal hearing and the officers could not give a detailed description of her dress and physical appearance. Charlene Rogers testified but could not identify the person who sold the beer to them. The evidence was conflicting as to whether an employee, John Hanks, or the Respondent, Richard Jiosne, actually sold the beer to Ms. Gibson. From the evidence presented, it could not be determined who actually sold the beer to the two women and thus had the responsibility for checking identification. Respondents have a clear policy against selling alcoholic beverages to minors and, prior to this incident, had instructed their employees to check identification of all purchasers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Respondents be found not guilty of the violation charged and that the charge be dismissed. ENTERED this 28th day of December, 1983, at Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard N. Jiosne Anne M. Jiosne 2205 Cornell Drive Brandon, Florida 33511 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of the violations alleged in the Notice To Show Cause issued September 22, 1989 by the Director, Division of Alcoholic Beverages and Tobacco, Department of Business Regulation.
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, the Respondents, Eugene and Joan Ferretti, d/b/a Gino's Beer and Wine (Gino's) held a Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) alcoholic beverage license for the premises known as Gino's located at 2012 South Atlantic Avenue, Daytona Beach Shores, Volusia County, Florida, license number 74-01399, series 2-APS Eugene and Joan Ferretti are co-licensees for Gino'. The Respondents stipulated that Gina Ferretti, employee and daughter of Eugene and Joan Ferretti, did on July 13, 1988 sell one 12 ounce can of Budweiser Light Beer, an alcoholic beverage, to a person under the age of 21 years and on October 21, 1988 did sell one 8 ounce can of Budweiser Beer, an alcoholic beverage, to a person under the age of 21 years, both sales being in violation of Section 562.11(1)(a), Florida Statutes. On July 18, 1988 the Division gave the licensees Official Notice of the July 13, 1988 violation and advised the licensees that if a similar violation occurred in the future the licensees could be charged with the current violation along with any future violations. On October 24, 1988 the Division advised the licensees of the October 21, 1988 violation and that this was a final warning before issuance of a Notice To Show Cause in the event of another violation which could subject the license to revocation or suspension. Since the two incidents in which she was involved occurred, Gina Ferretti has had training concerning the sale of an alcoholic beverage to persons believed to be under the age of 21 years, and has not been involved in any other violations since October 21, 1988. Because Eugene Ferretti works in construction it is necessary for Gina Ferretti to help in running Gino's and, therefore, Gina Ferretti stills works in Gino's. At all times material to this proceeding, Ms. Tina D. May worked with the law enforcement investigators of the Division in the Daytona Beach, Florida area as an underage operative to assist in determining whether licensed establishments were selling alcoholic beverages within their licensed premises to persons under the age of 21 years. Ms. May was instructed by the Division, as all underage operatives are, not to dress or act in such a fashion that is designed to entice the licensee to sell her alcoholic beverages without checking her identification to confirm her age or in any way lie about her age or use a false identification. Ms. May considered her work with the Division as a public service because her husband was killed in a alcohol related vehicular accident. On March 11, 1989 Ms. May, then 20 years and 7 months of age, entered the licensed premises of the Respondent under the supervision of Ronald P. Sullivan, Investigator for the Division. Ms. May was casually dressed, wearing a white T-shirt with logo and blue jeans; her hair was brushed straight downward, and she wore no makeup. On March 11, 1989 Ms. May's appearance resembled that of a working person rather than that of a student on spring break. After entering Gino's, Ms. May proceeded to purchase a 12 ounce can of Budweiser Light Beer, an alcoholic beverage. Eugene Ferretti was on duty at the time, and asked Ms. May if she was "21". Instead of responding that she was not "21", Ms. May handed Ferretti her Florida's driver's license with a yellow background indicating that the person identified in the license was under the age of 21 years when the license was issued. Ms. May's lack of a verbal response to Ferretti's question concerning her age was contrary to instructions given by Ronald Sullivan, to be "up front" about her age. The implication of Ms. May producing her driver's license in response to a question concerning her age, coupled with her appearance, led Ferretti to believe that she was "21", and resulted in Ferretti being less diligent than he should have been in reviewing Ms. May's driver's license. Due to Ferretti's lack of diligence he misread the 08 in May's birth date of 08/04/68 as an 03 and determined her birth date to be 03/04/68 rather than 08/04/68. Thinking she had just turned "21" on March 4, 1988, Ferretti sold Ms. May, a person under the age of 21 years, a 12 ounce can of Budweiser Light Beer, an alcoholic beverage. Ms. May had never purchased or attempted to purchase an alcoholic beverage in Gino's before the time of this offense. Ronald P. Sullivan was at the door of Gino's when Ms. May purchased the beer, but was unable to hear the conversation between Ferretti and Ms. May. Upon completing the purchase of the 12 ounce can of Budweiser Light Beer from Ferretti, Ms. May handed the beer to Sullivan who impounded it. Ferretti does not dispute the sale of the beer on March 11, 1989 to Ms. May, and allowed it to be introduced into evidence without objection. The conversations between the Division's operative and Gina Ferretti during the sales on July 13, 1988 and October 21, 1988 were taped, which is the usual procedure so as to rebut any conflicting testimony concerning a conversations between the Division's operative and the person making the sale. However, the conversation at the time of the sale between Ferretti and Ms. May on March 11, 1989 was not taped.
Recommendation In making the following recommendation I am mindful of the Division's "guidelines" of imposing an administrative fine of $1,000.00 and a 20-day suspension of the license for the first offense of violating Section 562.11(1)(a), Florida Statutes, (selling an alcoholic beverage to a person under the age of 21 years) regardless of the circumstances surrounding the violation, which appear to conclusively presume that the penalty should be the same regardless of the facts and circumstances surrounding the violation without any consideration being given to mitigating circumstances, if any. Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding the violations, it is, therefore, RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of violating Section 562.11(1)(a), Florida Statutes, and for such violations, considering the circumstances surrounding the violations, assess a civil penalty of $250.00 for each of the violations for a total civil penalty of $750.00. DONE AND ENTERED this 20th day of April, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 20th day of April, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6166 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Findings of Fact 8, 9 and 11, except the last sentence which is rejected since the label on the can of beer does not indicate the alcohol content. However, the can of beer does have the word Florida? on its lid and bares the trademark "Anheuser-Busch" which is prima facie evidence of it being an alcoholic beverage as defined in Section 561.01(4)(a), Florida Statutes which was not rebutted. See Section 562.47(2), Florida Statutes. Adopted in Finding of Fact 10. Adopted in Finding of Fact 9, as modified. Adopted in Findings of Fact 8 and 11. Adopted in Findings of Fact 8 through 11. Adopted in Findings of Fact 3 through 6, as modified. Not necessary to the conclusion reached in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Adopted in Finding of Facts 1 and 2, respectively. 3. Adopted in Finding of Fact 7, but modified. 4.-8. Adopted in Findings of Fact 4, 5, 8, 9 and 11. 9.-10. These are restatements of testimony and not findings of fact, but see Finding of Fact 9. 11. Adopted in Finding of Fact 9. 12.-16. These are restatements of testimony and not findings of fact, but see Findings of Fact 8 and 9. 17.-18. Not material to the conclusion reached in this Recommended Order. 19. Adopted in Finding of Fact 12. COPIES FURNISHED: Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Emily Moore, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 French Davis, Esquire 2762 South Peninsular Daytona Beach, Florida 32118
The Issue Whether or not on or about the 14th day of May, 1976, Mary Lener Arnold, a licensed vendor, did have in her possession, permit or allow someone else to have unlawfully in their possession on Mary Lener Arnold's licensed premises, alcoholic beverages, to wit: 9 half-pints of Smirnoff Vodka, not authorized by law to be sold under her license, contrary to 562.02, F.S.
Findings Of Fact The Respondent, Mary Lener Arnold, t/a Buggs' Drive Inn, held on May 14, 1976 and now holds beverage license no. 50-2 series 1-COP with the State of Florida, Division of Beverage. This licensed premises is located on Main Street, Greenville, Florida. On May 14, 1976, a confidential informant with the Division of Beverage went to the licensed premise of the Respondent in Greenville, Florida and purchased a bottle of alcoholic beverage not permitted under a 1-COP license. This confidential informant was working for officer B.C. Maxwell of the State of Florida, Division of Beverage. Officer Maxwell along with other officers with the Division of Beverage and officers of the Madison County, Sheriff's office returned to the licensed premises on May 14, 1976 and in looking through the licensed premises found a black bag containing 9 half-pints of Smirnoff Vodka on the licensed premises. This Smirnoff Vodka was not permissible on the licensed premises under a 1-COP license. On the licensed premises at the time of the inspection was one Patsy Jackson Williams who indicated that she was in charge of the premises. The confidential informant who had purchased the bottle of alcoholic beverage indicated that his purchase had been made from the same Patsy Jackson Williams. The black bag with its contents of 9 half-pints of Smirnoff Vodka is Petitioner's Exhibit #2 admitted into evidence. The alcoholic beverage purchased by the confidential informant is Petitioner's Exhibit #4 admitted into evidence.
Recommendation It is recommended that the Respondent, Mary Lener Arnold have her beverage license suspended for a period of 30 days based upon the charge proven in the hearing. DONE and ENTERED this 22nd day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Larry D. Winson, Esquire Staff Attorney Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Mary Lener Arnold t/a Buggs' Drive Inn Main Street Greenville, Florida
Findings Of Fact At all times relevant to this case, Rajenor Bajrangi held a valid Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter Division), license for the premises known as the Quick Stop Center (hereinafter licensed premises), license number 6k9-305, series 2-APS, located at 1201 Airport Boulevard, Sanford, Seminole County, Florida. Underage operative Robert Scott assists the Sanford Police Department in determining whether or not licensed premises will sell alcoholic beverages to persons under the age of 21 years of age. Mr. Scott was born on April 17, 1969, and on Monday, May 23, 1988, he was nineteen years old. On May 23, 1988, Robert Scott entered the licensed premise, walked to the back of the store, removed a 12 oz. can of Miller beer from the cooler, and proceeded to the check-out counter. He presented the beer to a man that he identified at the hearing as being Rajenor Bajrangi. Mr. Bajrangi, without requesting any identification, rang up the beer on the cash register and received from Mr. Scott the requested price for the beer. Mr. Scott departed the premise with the beer and met Officer Collison outside where Mr. Scott gave Officer Collison the Miller beer. At no time during this transaction did Mr. Bajrangi inquire as to Mr. Scott's age. Officer Chris A. Collison of the Sanford, Florida, Police Department has been a police officer for over eight years. On May 23, 1988, about 10:00 p.m., he went in an unmarked car with another officer and Robert Scott to the licensed premises. He was able to observe Mr. Scott enter the licensed premises purchase the aforementioned beer and then depart the premises. The funds that Mr. Scott used to purchase the beer were provided by Mr. Collison. Mr. Collison received the Miller beer purchased by Mr. Scott from the hands of Mr. Scott. He identified the beer that was offered as Petitioner's Exhibit 2 as being the beer that was given to him by Robert Scott. David E. Ramey is a law enforcement investigator for the Division of Alcoholic Beverages and Tobacco and he has been so employed for over eleven years. He inspected the can of Miller beer that was entered into evidence as Petitioner's Exhibit 2 and knows that the evidence was labeled as beer, that it was contained in an unopened can, that it had lithographed on the lid of the can the word "Florida," and that it bore the manufacturer's trademark. Investigator Ramey had the opinion that the substance in Petitioner's Exhibit 2 is beer. The usual penalty for a licensee selling to an underage person is a $1,000.00 civil penalty accompanied by a 20-day license suspension. Mr. Rajenor Bajrangi testified that, on May 23, 1988, when Mr. Scott purchased the beer, there was a large group of rowdy people loitering in the vicinity of the licensed premise and that the police officers should have arrested these rowdy persons instead of trying to make an underage case against him. Neither the testimony of Officer Collison or that of Mr. Scott served to bolster Mr. Bajrangi's claim that he was diverted by the so-called rowdy persons and Officer Collison specifically stated that there were no distractions occurring in the vicinity of the licensed premise at the time the beverage was purchased. Considering the evidence as a whole, there was no credible evidence that Respondent was distracted at the time the beverage was purchased.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding the licensee guilty of a violation of Section 561.29(1)(a), Florida Statutes, and Section 562.11(1)(a), Florida Statutes, and imposing a civil penalty of $1,000.00 and a three (3) day license suspension. DONE AND ENTERED this 12th day of July, 1989, in Tallahassee, Leon County, Florida. DANIEL M. MANRY 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 12th day of July, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Recommended Order Paragraph 1-6. Accepted Respondent's letter dated July 4, 1989. Did not dispute Petitioner's finding of fact but was in the nature of mitigation. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Rajenor Bajrangi c/o Quick Stop Center 1201 Airport Boulevard Sanford, Florida 32771 Leonard Ivey Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronough Street Tallahassee, Florida 32399-1000 Stephen R. McNamara Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
