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 The Respondents, J. F. Walthier III and Andrew Erickson, are the holders of a current valid beverage license, No. 46-00210, Series 2-APS, held in the name of Walthier, J. F. III and Ericks. This license is for a premises located at 4721 Palm Beach Boulevard, Fort Myers, Lee County, Florida. The Respondents conduct their business at this licensed premises under the name Foam and Fizz. This beverage license series entitled the Respondents to sell a class of alcoholic beverage for consumption off the licensed premises. One of the categories of alcoholic beverages allowed for sale under the terms and conditions of the license is beer. The subject beverage license was issued by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. The Petitioner is charged with the licensure and regulation of the several alcoholic beverage license holders within the State of Florida. In pursuit of its function, the Petitioner has brought an Administrative Complaint/Notice to Show Cause against the named Respondents and the terms and conditions of that complaint may be found in the issue statement of this Recommended Order. The facts in this case reveal that between 9:00 p.m. and 10:00 p.m. on January 25, 1980, three young men under the age of eighteen drove to the licensed premises for purposes of purchasing beer. Once the car was parked, Ira J. Frasure and dames Craig McDowell exited the car. On that date, Ira J. Frasure was seventeen years of age and James Craig McDowell was sixteen years of age. They left Frank Edward Gordon in the automobile, where he would remain during the pendency of the other juveniles' activities in the licensed premises. Once in the store, Frasure retrieved a six-pack of Budweizer beer and McDowell picked up several single cans of Budweizer beer. The beer which had been picked up by the juveniles was presented at the checkout counter to Barbara Joyce Walthier, the wife of one of the licensees and an employee in the licensed premises. At that point, Frasure paid Walthier for the beer from money which he had and money which had been given to him by McDowell. The juveniles then left the store. Neither of the juveniles had been asked for any form of identification prior to the sale of the alcoholic beverages, nor had they been asked about their ages, and they did not make any comment concerning their ages. Frasure's date of birth is September 30, 1962, and at the time of the purchase he was approximately six feet one inch tall and had a mustache. Frasure gave testimony in the course of the hearing and appeared to be eighteen years of age or older at that time. Investigative officers who saw Frasure on January 25, 1980, said they felt he appeared to be less than eighteen years of age. McDowell's date of birth is February 9, 1963, and at the time of the hearing he appeared to be less than eighteen years of age, and this comported with the impression of the investigating officers when they saw him on January 25, 1980. At the time Frasure purchased the beer from the clerk, Barbara Joyce Walthier, she was not busy with other customers to the extent that it would hinder her ability to check the appearance of Frasure and McDowell; however, business on the evening in question had been moderate to heavy at times and she does not remember seeing Frasure and McDowell. Barbara Joyce Walthier was working in accordance with a set of instructions from the licensees, in the person of her husband, to the effect that she should always require written identification prior to purchase from those persons who looked like they should be "carded". Moreover, she had been instructed that those persons who have beards are not normally "carded". Other factors to be considered, per instruction she had been given, were to require written identification from those persons who acted suspiciously while in the store, or who parked a great distance away from the store after driving slowly by. In keeping with these instructions, she routinely requires written identification from patrons. Finally, there was a sign in the licensed premises which stated, "Under age don't ask".
Recommendation In view of the fact that this is a single count violation and in view of the physical appearance of Ira J. Frasure at the time of the alcoholic beverage purchase in question, that appearance leading one to believe that he was eighteen years of age or more, it is RECOMMENDED that the Respondents be required to pay a fine in the amount of one hundred fifty dollars ($150.00) in lieu of suspension or revocation and it is FURTHER RECOMMENDED that if this civil penalty is not paid within thirty (30) days of the rendition of the final order, that the Respondents' beverage license be suspended for a period of fifteen (15) days. DONE AND ENTERED this 20th day of May, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee Florida 32301 (904) 488-9675 COPIES FURNISHED: James N. Watson, Esquire Office of General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Allan Parvey, Esquire 2201 Main Street Post Office Box 2366 Fort Myers, Florida 33902
The Issue By Notice to Show Cause filed December 19, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the alcoholic beverage license number 60-0883 issued to James R. Rogers, trading as Ray's Tavern. As grounds therefor it is alleged that Rogers, in order to secure a license to sell alcoholic beverages, made false written statements to the agents of Respondent in violation of 537.06 and 561.29 F.S. One witness was called by Petitioner and four exhibits were admitted into evidence.
Findings Of Fact On December 21, 1977, notice of the hearing scheduled to commence on January 12, 1978 at 1457 N. Military Trail, West Palm Beach, Florida was served on Respondent by a beverage agent of Petitioner. (Exhibit 1) In answer to question 13 on the application for Transfer of Alcoholic Beverage License, which asked "Has a license covering the place described in this application or any other place in which any of' the above named persons were at the time interested ever been revoked by the Director?" Respondent answered "No". (Exhibit 2). By Order of the Director of the Division of Beverages dated September 30, 1955 (Exhibit 3) the alcoholic beverage license issued to James R. Rogers, Curley's Tavern, aka Ray's Tavern was revoked for maintaining gambling paraphernalia and permitting gambling on the licensed premises.
The Issue The issues for disposition are whether Respondent sold alcoholic beverages to an underage person in violation of section 562.11(1)(a), Florida Statutes, as alleged in the Petitioner’s Administrative Action dated February 20, 1996, and if so, what penalty or discipline is appropriate.
Findings Of Fact Respondent is the holder of alcoholic beverage license no. 69-01472, Series 2APS, for a licensed premises doing business as Superette #3, located at 199 North Country Club Road, Lake Mary, Seminole County, Florida. On February 8, 1996 and at all relevant times, Salim Dhanani was the sole corporate officer and sole shareholder of Superette #3, Inc., the holder of the above-referenced alcoholic beverage license. The “City/County Investigative Bureau” (CCIB) is a task force of officers from the Seminole County Sheriff’s Department and surrounding cities assigned to investigate crimes relating to drugs, alcohol and vice, including the sale of alcohol to minors. CCIB acts on complaints and works with the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT). Darrell Brewer, born March 18, 1976, was a police explorer who was asked to help the CCIB investigate sales of alcohol to underage persons. On February 8, 1996, he was 19 years old and was working with Officers Johnson and Hartner. On February 8, 1996, in the evening around 8:00 p.m., Brewer and a CCIB agent entered the licensed premises, Superette #3. Brewer wore jeans and a tee-shirt and carried cash and a valid ID, which he was instructed to present if requested. Brewer picked out a 6-pack of Miller Genuine Draft beer and took it to the counter, where he purchased it without being asked for identification or any question regarding his age. Brewer turned over the beer to Officer Johnson, who returned to the store and arrested the clerk who had made the sale, Salim Dhanani. In May 1996, Dhanani went to court and pled no contest to the criminal charge of sale of alcohol to an underage person. He paid a fine. In his eleven years in the United States, this is the only violation by Dhanani. He worked in several places before taking over Superette #3 in November 1993, and he never had problems with DABT. After the Brewer incident, Dhanani hired a private consultant to train his wife and him and their one employee. They learned to “ID” everyone, including regular customers; they posted signs and notices informing customers of their “responsible vendor policy” and their intent to prosecute minors attempting to purchase alcohol. Dhanani admits that he sold beer to Brewer without asking for identification and without questioning his age. Brewer is a large, mature youth who, at the time of hearing, looked to be in his mid-20’s. To Dhanani, at the time of sale, Brewer appeared to be “28 or so”. Under the responsible vendor program any customer who appears to be under the age of 30 must be required to present proper identification. Through Capt. Ewing, DABT presented unrebutted evidence that the premises in Lake Mary has been vacated by the licensee, Superette #3, Inc., and a new license was issued to the landlord of the premises. Cancellation of the Superette #3 license is in abeyance pending this proceeding.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Division of Alcohol Beverages and Tobacco enter its final order finding that Respondent committed the violation alleged in the Administrative Action, assessing a fine of $1000.00, and suspending the license for 7 days, or until Respondent has found an approved new location. DONE and ENTERED this 17th day of April 1997 in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April 1997. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Steven G. Horneffer, Esquire Suite 109 101 Sunnytown Road Casselberry, Florida 32707 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent, Acobos, Inc., d/b/a Christo's Cafe, is the holder of alcoholic beverage license number 62-03732SRX, for licensed premises at 411 First Avenue North, St. Petersburg. In September, 1987, and particularly on September 11, 17, and 25, 1987, the Respondent's licensed premises were open for business, including the sale of alcoholic beverages under the authority of the Respondent's license. On at least three separate occasions--on September 11, 17, and 25, 1987,--the Respondent was selling alcoholic beverages at the licensed premises at times when the service of full-course meals had been discontinued.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking the alcoholic beverage license of the Respondent, Acobos, Inc., license number 62-037325RX. RECOMMENDED this 31st day of October, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1988. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Tim Christopoulos, President Acobos, Inc., d/b/a Christo's Cafe 411 First Avenue North St. Petersburg, Florida 33701 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue Whether Respondent's plea of nolo contendere to the crime of possession of a controlled substance (for which adjudication was withheld) is sufficient to support the imposition of discipline with regard to his alcoholic beverage license.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to issue beverage licenses pursuant to Chapter 561, Florida Statutes, and applicable rules. Prior to September 11, 2000, Respondent, doing business as Smiley's, was the owner and holder of a beverage license, DBPR License No. 74-05336, Series 2-COP, which permits him to sell beer and wine for consumption on premises. On October 9, 1998, Respondent was charged by information with sale and delivery of cocaine. He was acquitted of that charge on May 12, 2000. Subsequently in a separate incident, Respondent was charged with possession of cocaine and on September 11, 2000, pleaded no contest to that charge. Pursuant to Respondent's timely request for formal proceedings, Petitioner's counsel initiated discovery in the course of this administrative proceeding through a Request for Admissions to which Respondent failed to respond. Respondent failed to provide a satisfactory explanation for this circumstance and, upon motion of Petitioner, the Request for Admissions was deemed admitted. Those admissions establish that Respondent entered a no contest plea on September 11, 2000, to the charge of possession of cocaine and that the plea bargain negotiated at that time also included two days' incarceration. Additionally, the admissions establish that Respondent is aware that possession of cocaine is a crime punishable by imprisonment for a term of five years. Respondent's own testimony is uncorroborated by other direct evidence and fails to establish that he possesses good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's alcoholic beverage license, DBPR License No. 74-05336, Series 2-COP. DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2001. COPIES FURNISHED: Paul Kwilecki, Jr., Esquire 629 North Peninsula Drive Daytona Beach, Florida 32118 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Lt. John P. Szabo Department of Business and Professional Regulation 400 West Robinson Street, Room 709 Orlando, Florida 32801 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues in these cases are whether Respondent, Club Manhattan Bar and Grill, LLC, d/b/a Club Manhattan Bar and Grill (Respondent), committed the acts alleged in the administrative complaints dated September 13, 2010, and December 1, 2010, and, if so, what disciplinary action, if any, should be taken against Respondent.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating persons holding alcoholic beverage licenses. § 561.02, Fla. Stat. Respondent is licensed under the Florida beverage law by the Department. Respondent holds a 4COP/SRX special restaurant license issued by the Department with Alcoholic Beverage License No. 68-04347. Ms. Stokes is the licensee of record for Respondent. Consequently, Respondent is subject to the Department's regulatory jurisdiction. Respondent's series 4COP/SRX is a special restaurant license that permits it to sell beer, wine, and liquor for consumption on the licensed premises. Additionally, the licensee must satisfy seating and record-keeping requirements and must comply with 51 percent of its gross sales being food and non- alcoholic beverages. See § 561.20(2)(a)4., Fla. Stat. Respondent's restaurant is located in Sarasota County, Florida, and, pursuant to the 4COP/SRX license, must have seating and capability to serve 150 customers at any one time. On August 5, 2010, Special Agent Flynn conducted an inspection of Respondent's business premises. He conducted the inspection based on complaints made to the Department that Respondent was operating as an after-hours bar, rather than a restaurant. At this initial inspection, which occurred at 2:30 p.m. on August 5, 2010, Special Agent Flynn found the restaurant did not have any customers or menus. Further, he noticed that the premises had seating for only 92 people and a large dance floor. Further, he observed that the walls had signs advertising drink specials and late-night parties. Special Agent Flynn met Ms. Stokes, Respondent's manager and holder of the license, and informed her that the beverage license required that Respondent be able to serve 150 customers at one time. Also, Special Agent Flynn requested the required business records concerning the purchase of alcoholic beverage invoices from the distributors for a 60-day proceeding period. Ms. Stokes did not have the requested records on the premises. On August 19, 2010, Special Agent Flynn sent Ms. Stokes a written request, requesting alcoholic purchase invoices for a 60-day period before August 19, 2010. The request allowed Ms. Stokes 14 days to compile the records and to provide the records to the Department. The record here showed by clear and convincing evidence that Respondent did not produce records for the audit period. On September 8, 2010, at approximately 3:00 p.m., Special Agent Flynn returned to Respondent's premises. Again, he found that Respondent did not have the required seating number and ability to serve 150 customers at one time. Special Agent Flynn offered credible testimony that, during the September 8, 2010, inspection, he found Respondent had only 106 available seats. Further, consistent with his inspection on August 5, 2010, Special Agent Flynn observed facts showing that Respondent was a late-night bar, as opposed to a restaurant. The evidence showed that on September 8, 2010, Special Agent Flynn observed that Respondent did not have any customers, menus, and very little food in its small kitchen. Special Agent Flynn, however, did observe that Respondent continued to have its large dance floor, disc jockey booth, advertised drink specials, and posters advertising late-night parties. Clearly, Respondent was being operated as a bar, rather than a restaurant as required by its license. At the September 8, 2010, inspection, Special Agent Flynn again requested Respondent's business records that he had previously requested for the 60-day time period before August 19, 2010. Ms. Stokes provided a few invoices for purchases of food and non-alcoholic beverages. These invoices were dated after the August 19, 2010, date that Special Agent Flynn had requested and did not cover the requested 60 days prior to the August 19, 2010, request. These records included food and beverage purchases by Respondent from retailers, but did not contain any records concerning the points of sale at the restaurant. Ms. Nadeau, an auditor for the Department, offered credible testimony concerning the Department's request for business records from Respondent for the audit period of April 1, 2010, through July 31, 2010. On August 27, 2010, Ms. Nadeau set up an audit request for the period of April 1, 2010, through July 31, 2010, based on information provided by Special Agent Flynn. The Department provided Ms. Stokes with an audit engagement letter that requested business records. Ms. Nadeau testified that on September 10, 2010, she was contacted by Ms. Stokes. Ms. Stokes informed Ms. Nadeau that Ms. Stokes had become the owner of the restaurant in June 2010 and that she did not have the required records. Ms. Nadeau informed Ms. Stokes to provide all the records requested in the audit engagement letter that Ms. Stokes had and to try to obtain the prior records from the previous managing member of Respondent. On September 22, 2010, Ms. Stokes mailed to the Department records she claimed met the audit period. The records consisted of guest checks for July and August 2010, which only showed food purchases and no alcoholic beverage purchases. Further, Ms. Nadeau found that the records were not reliable, because the records contained numerous personal items not related to the restaurant, such as baby wipes, cotton swabs, and boxer shorts. Consequently, the record clearly and convincingly shows that Respondent failed to provide the required business records for the audit period of April 1, 2010, through July 31, 2010. Next, based on Respondent's failure to provide any reliable records, the Department was unable to conduct an audit of the business. Records provided by Respondent indicated that the only sales that occurred on the premises were for food. However, the testimony showed that Respondent's business included the sale of alcohol and marketed the sale of alcoholic beverages for late-night parties. Mr. Torres, the senior auditor for the Department, credibly testified that he conducted an independent review of Ms. Nadeau's initial audit findings. Mr. Torres, who has been employed with the Department for 27 years, reviewed the records provided by Respondent. He credibly testified that Respondent's guest checks were very questionable because they showed all food sales, but no alcohol, which was not consistent with Special Agent Flynn's observations. The evidence further showed that Ms. Stokes became the managing member of Respondent in June 2010. Ms. Stokes provided the Department with a change of corporate officers and named herself as registered agent, rather than apply for a new license. This distinction would later become important because, as explained by Ms. Nadeau, in the Department's eyes, there is a continuation of ownership. Under a continuation of ownership, Ms. Stokes was required to have business records for the time period before she became the managing member of Respondent. Ms. Stokes credibly testified that she did not have any records before June 20, 2010; thus, Respondent was unable to provide records for the audit period. Ms. Stokes candidly admitted that her restaurant had been struggling financially, which is why she had worked to catering special events to draw foot traffic.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking Respondent's alcoholic beverage license and finding that Respondent violated: 1. Section 561.20(2)(a)4., within section 561.29(1)(a), on September 8, 2010, by failing to provide the required service area, seating, and equipment to serve 150 persons full-course meals at tables at one time as required by its license; 2. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), the audit period of April 1, 2010, through July 31, 2010, by not providing the requested business records; and 3. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), on September 8, 2010, by not providing the requested business records. It is further RECOMMENDED that the final order find that the Department did not prove by clear and convincing evidence that Respondent violated section 561.20(2)(a)4., within section 561.29(1)(a). DONE AND ENTERED this 23rd day of September, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2011.
Findings Of Fact Respondent is the holder of Beverage License No. 26-751 permitting the sale of alcoholic beverages from her store at 1155 Jessie Street, Jacksonville, Florida. This business is a convenience store known as Agel Grocery. Respondent's husband has been co-owner of this business since the outset, and participates in its operation and management. When the Morenes applied for an alcoholic beverage license in June, 1980, they believed Frank Morene was ineligible and intentionally omitted his name from the application.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is That Respondent be found guilty of filing an incorrect application in violation of Subsection 561.17(1), Florida Statutes (1979). It is further RECOMMENDED: That Respondent's Alcoholic Beverage License No. 26-751 be suspended until Respondent files and secures approval of a correct application or demonstrates that any direct or indirect interest of Frank Morene in the licensed business has been removed. DONE and ENTERED this 7th of August, 1981, 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 7th day of August, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mrs. Saundra Morene c/o Agel Grocery 1155 Jessie Street Jacksonville, Florida 32206
Findings Of Fact Petitioner is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is 201 West, Inc., d/b/a Central City, who is the holder of alcoholic beverage license number 11-00259, Series 4-COP, a "quota license." Respondent's licensed premises is located at 201 West University Avenue, Gainesville, Alachua County, Florida. Craig Cinque is Respondent's sole director and corporate officer. Joseph Cinque, Craig Cinque's father, was formerly Respondent's sole director and corporate officer. Prior to becoming the owner of Central City, Craig Cinque managed the licensed premises on behalf of his father. During this period of time, the Division filed ten separate Notices to Show Cause against Respondent, alleging multiple sales to and consumption of alcoholic beverages by underaged persons. On August 29, 1989, the licensed premises was closed by an Emergency Order of Suspension. The administrative charges arising therefrom were resolved by a Stipulation and Consent Agreement, wherein the Respondent in that case admitted substantially to all of the violations. Craig Cinque individually executed the agreement, admitted responsibility for previous violations, and acknowledged that future violations of a similar nature could result in suspension or revocation of the alcoholic beverage license. The agency has issued numerous Notices to Show Cause against Respondent since the entry of the consent order. However, unproven Notices to Show Cause and unproven counts within any Notices to Show Cause are only unproven accusations, and as such are not probative herein even for purposes of showing "aggravation." Beverage Law Institute is an "approved trainer" under the Responsible Vendors Act, having been approved by the Petitioner as such. Petitioner certified Respondent Central City as a certified Responsible Vendor under the Act, on April 13, 1990. See, Subsections 561.701-561.706 F.S. Of the 483 nondistributor alcoholic beverage licensees in Alachua County, only 94 have been certified by Petitioner as Responsible Vendors. Of those 94, only 13 hold "4-COP" licenses, the category of license held by Respondent, which permits liquor, beer, or wine for consumption on premises or in a sealed container. Prior to the events of the instant Notices to Show Cause, and continuing through the 14-month period of the Notices to Show Cause and beyond, Respondent was engaged in a voluntary program designed to teach employees not to serve alcoholic beverages to underaged persons. Many of the materials therefor were provided by Beverage Law Institute. The training program and procedures involved multiple ID checkers at the front door. Also at the front door, wristbands to signify and quickly identify patrons of legal drinking age were issued. Once snapped on a customer's wrist, the band itself was stamped at a right angle across the customer's wrist to prevent or at least inhibit the wristband's transfer to an underage patron and to prevent a patron bringing in a counterfeit or "ringer" wristband. All patrons, regardless of age, received a stamp directly on the wrist to identify that they had paid their admission fee. Security personnel circulated inside the licensed premises checking drinks and wristbands, and waitresses were also instructed to check on drinks already purchased by customers. The training programs and procedures also involved Respondent's policy manual regarding IDs, extensive training and testing of employees, frequent oral reminders to employees concerning the law and concerning licensee policy, sporadic staff meetings regarding policy, videotaped instruction programs, provision of and instructions to employees to use an "ID Checking Guide" at the front door and at every internal bar within the licensed premises, confiscation of fake or questionable IDs at the door, 1/ and use of warning handbills given out to customers. Upon receipt, the handbills proclaiming the licensee's "of age only" policy were usually immediately discarded by customers. Some employees looked upon their training with more enthusiasm than others. Some employees considered the policy and training all for show. Most employees complied regularly with the requirements for training, review, and instructions. A few were lax in their compliance and had to be urged to attend staff meetings or to retest. In addition to all this, from the time the Responsible Vendor tests were available, all employees except two cashiers were tested according to the requirements of the Responsible Vendor Act and within the time frames provided therein. Every underage operative who testified admitted she or he had been "carded" at the door and that none had been issued wristbands. The parties stipulated that all of the individuals named in the four Notices to Show Cause (except for those alleged to have sold or given alcoholic beverages) were under the legal drinking age on the dates indicated by the respective Notices to Show Cause and that although each of these individuals "was actually in possession of alcoholic beverages as plead (sic), there was no evidence that any of the alcoholic beverages were obtained from Respondent's employees, agents, or servants." The stipulation listed the underage persons of the Notices to Show Cause but did not employ the term "consumption" which was specifically used only in the second Notice to Show Cause (GA11890496). Petitioner put on no witnesses as to "consumption." Likewise, Petitioner did not have admitted in evidence any confiscated alcoholic beverages alleged to have been sold by Respondent's agents/employees, nor did Petitioner present any laboratory reports to establish that any substance sold was alcohol. The only evidence of alcohol content is discussed infra. With regard to Craig Cinque's attitude and Central City's compliance with the Responsible Vendors Act, the testimony of Eileen Tenly and of William Cooter has been weighed and considered. Ms. Tenly is a totally noncredible witness whose testimony demonstrates an "axe to grind," and whose candor and demeanor is unpersuasive of anything except her animosity for Mr. Cinque. Petitioner's Investigator William Cooter, however, testified credibly that after having numerous conversations with Mr. Cinque on the subject of underage sales, Mr. Cinque stated that he was not worried about losing his alcoholic beverage license because he could get another one in his mother's name. On the other hand, Mr. Cooter, by his own testimony, has been invited by Mr. Cinque to instruct and has, in fact, instructed Mr. Cinque's employees on how to prevent underage drinking. The evidence as a whole, but most particularly that of Prince Miles, Respondent's janitor, who is a credible witness, is persuasive that patrons sometimes smuggle alcoholic beverages onto the licensed premises and that each time the establishment closes, commercial alcoholic beverage containers which are not part of the inventory sold by Respondent must be swept out. Since this smuggling activity must substantially reduce Respondent's profits, it is a logical inference that such smuggling is contrary to Respondent's policy and that Respondent does not encourage or condone it, whether done by adults or minors. I. Notice to Show Cause GA11890374; September 16, 1989 through February 9, 1990; sale to Toombs, Kittles, Goldtrap, and Ormsbee by Green, Halladay, Howell, and Grimes and possession by Peters, Conf, Kelly, Garcia, Fernandez, Shiskin, Brejhanan, Benz, Yawn, and Plettner All of the violations charged in Notice to Show Cause GA11890374 arose prior to Respondent's becoming a certified Responsible Vendor on April 13, 1990. On September 16, 1989, Ryan Conf and Alejandra Peters were each under the age of 21 and in actual possession of alcoholic beverages inside the licensed premises as pled. On September 19, 1989, Central City bartender David Green sold the Division's underaged operative, Bridgette Toombs, a liquid beverage in a long- neck, factory-produced 12-ounce bottle labelled "Michelob Dry." At that time, the licensed premises was not busy and Mr. Green noted that Ms. Toombs had no wristband. He therefore checked Ms. Toombs' underage ID and instructed her that since she was old enough to drink, she should go get a wristband. This transaction was observed by Petitioner's agent, Ms. Pendarakis, but Ms. Pendarakis did not overhear the conversation. After delivering a sample of the liquid beverage to Ms. Pendarakis in the ladies' room, Ms. Toombs crossed in front of Mr. Green's bar on her way to exit the licensed premises. Mr. Green sent word to Ms. Toombs by another Central City employee that he wanted to see her. Ms. Toombs complied with Mr. Green's request and showed him her underage ID once more. At that point, Mr. Green recognized his error in thinking that Ms. Toombs was 21 or over and called over several other Central City employees, all of whom viewed the ID showing Ms. Toombs was actually two months short of 19 years old. Mr. Green was not arrested until after the ID was passed around, so it may be inferred that his recognizing his mistake was not the result of any confrontation with Petitioner's agents or law enforcement officers or due to his perception that he had been "caught." Indeed, Petitioner's witness, Ms. Toombs, attributed Mr. Green's illegal sale to her as a mistake in subtraction. Mr. Green had previously successfully passed all tests required under the licensee's policy in existence before the Responsible Vendor tests were available. On October 20, 1989, Charlotte Kelly and Alezandro Garcia, who were under the age of 21, were each in the actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1989, Cesar Fernandez, who was under the age of 21, was in possession of an alcoholic beverage inside the licensed premises. On the same date, underage operative Megan Kittles was inside the licensed premises. She was not wearing a wristband, and her hand was stamped indicating that she was under 21. She first approached a white male bartender who checked her and refused to serve her. She then ordered a rum and coke from Respondent's bartender, Craig Halladay. Mr. Halladay did not check Ms. Kittles' ID and served her a liquid beverage which Mr. Szabo of the Division testified that he had identified by smell as containing alcohol. No one saw the drink mixed, and Mr. Szabo admitted that he did not know what kind of alcohol the drink contained. He stated that he "would not swear it was rum." Mr. Szabo also was not aware until formal hearing that Respondent sold any nonalcoholic mixed drinks. Although the evidence is weak, it is persuasive that Ms. Kittles was served alcohol. Mr. Halladay successfully passed the licensee's policy test before this incident and the Responsible Vendor test afterwards. Also on October 21, 1989, Matthew Goldtrap, another underage operative, ordered a "Budweiser" and obtained a 12-ounce bottle labelled "beer" from a floor waitress named Shannon Howell. Mr. Goldtrap had no wristband but did have a stamp on his wrist. He gave the container to Investigator Smith. Mr. Szabo then took both of Respondent's employees into custody. Mr. Goldtrap does not drink alcohol. Investigator Smith did not testify, but it is inferred from the description of the beer bottle and the circumstances of the transaction as a whole that Mr. Goldtrap was served an alcoholic beverage. Ms. Howell successfully passed the licensee's test prior to this incident. On January 19, 1990, Scott Shiskin, Michael Brejhanan, and Carolyn Benz, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. On February 9, 1990, Central City bartender Steve Grimes sold Petitioner's 19-year old operative Octavia Ormsbee a liquid beverage. Ms. Ormsbee, who had no wristband on, was first denied a sale of alcoholic beverage at the downstairs back bar after Respondent's bartender there checked her underage ID. Ms. Ormsbee then went to an upstairs bar and ordered a "Bud Light." She was told by Mr. Grimes, a bartender at that bar, that they were out of "Bud Light," and by agreement, a beer bottle labelled "Budweiser" was substituted. Ms. Ormsbee does not drink alcohol and did not testify that what she received from Mr. Grimes was alcohol. The bottle purchased by Ms. Ormsbee was turned over to Officer Byrd of the Gainesville Police Department. Officer Byrd, who is familiar with alcoholic beverages through his own education, training, practice, and experience, identified the contents of the bottle purchased by Ms. Ormsbee as being "beer." Officer Byrd turned the bottle over to Petitioner's agent Cooter. Also on this occasion, Preston Yawn and Eric Plettner, who were under the age of 21, were each actually in possession of alcoholic beverages inside the licensed premises. Mr. Grimes had successfully passed the licensee's policy test prior to this incident. All of the underaged operatives who testified concerning this Notice to Show Cause testified that Petitioner's adult operatives forbade them to drink (consume) what they were sold and that they did not consume any. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the minors actually named in the Notice to Show Cause constituted their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, mere possession does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 2/ Therefore, Petitioner has only established that on September 19, 1989 Respondent's bartender sold an alcoholic beverage to Petitioner's underage operative Bridgette Toombs; that on October 21, 1989, Respondent's bartender sold an alcoholic beverage to the Petitioner's underage operative Megan Kittles; that also on October 21, 1989, Respondent's floor waitress sold Petitioner's underage operative Matthew Goldtrap an alcoholic beverage; and that on February 9, 1990, Respondent's bartender sold the Division's underage operative Octavia Ormsbee an alcoholic beverage. One of these sales was clearly a mistake and two other operatives had to go to two bartenders each before an illegal sale was made. II. Notice to Show Cause GA11890496; June 8, 1990 through June 16, 1990; sale to Wearner by Edge and to Seligman by Lemberger and Bergine and possession by Tetstone, Lockey, Klug, Skipper, and Bissell On June 8, 1990, Jennifer Tetstone and Amy Lockey, who were under the age of 21, were in actual possession of alcoholic beverages inside the licensed premises. On June 16, 1990, Ann Klug, Shana Skipper, and Michael Bissell were in actual possession of alcoholic beverages inside the licensed premises. Also on June 16, 1990, Central City bartenders Michael Edge, Michael Bergine, and Robert Lemberger, respectively, sold each of the Division's underage operatives Kathy Wearner (who did not testify but who was stipulated to be underage) and Charles Seligman an alcoholic beverage. Neither underaged operative wore a wristband or was requested to produce an ID for purposes of the respective sales. As of date of formal hearing, the Respondent continued to employ these same bartenders. All of these bartenders had successfully completed the Responsible Vendor test before these incidents. Mr. Edge also had passed the licensee's earlier policy test. The underaged operative, Kathy Wearner, asked Michael Edge for "a Budweiser" and was sold liquid in a "Budweiser" beer bottle inverted in a drinking glass. Officer Rockey of the Gainesville Police Department convincingly described the liquid that came out of the bottle as beer, an alcoholic beverage. He turned the materials confiscated over to an unnamed agent of Respondent and has not seen them since. On the same date, Central City bartender Robert Lemberger sold a 12-ounce bottle labelled "Budweiser" to 18- year-old operative Charles Seligman. Mr. Seligman was at all times without a wristband and bearing a stamp on his hand. Mr. Seligman delivered the bottle he received from Mr. Lemberger to Officer Posey of the Gainesville Police Department who had watched the entire transaction. Mr. Seligman later purchased a 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to Officer Posey. Mr. Seligman purchased a third 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to one of Petitioner's agents, Ernest Wilson. Mr. Seligman does not drink alcohol. Agent Wilson does drink alcohol and testified that the bottle Charles Seligman handed him was, in fact, beer. Although Agent Wilson also testified that Mr. Seligman's first name was "Tom" and that Mr. Seligman had purchased a rum drink, nonetheless, Mr. Wilson was convincing that the bottle handed him by Mr. Seligman did, in fact, contain beer, an alcoholic beverage. Officer Posey convincingly described the first bottle he received from Mr. Seligman as containing beer, an alcoholic beverage, and upon all the circumstances, the undersigned infers that the second bottle given Officer Posey also contained beer. All the underaged operatives who testified on this Notice to Show Cause testified that they were forbidden to drink (consume) what they were sold and did not do so. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the other minors actually named in the Notice to Show Cause constitutes their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 3/ Therefore, Petitioner has established only that on June 16, 1990 Respondent's personnel sold one alcoholic beverage to the Petitioner's underage operative Wearner and three alcoholic beverages to the Petitioner's underage operative Seligman. III. Notice to Show Cause GA11900209; September 22, 1990 through September 29, 1990; service to, or consumption by Stanton, Coody, Willis, and, Torres On September 22, 1990, Amy Stanton and Janet Coody, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. On September 29, 1990, Betty Willis and Jose Torres, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 4/ IV. Notice to Show Cause GA11900254 October 19, 1990 through November 16, 1990; 9 counts possession by Harriett, Ortega, McKinney, Nelson, Smith, Winter, Joyner, Cooke, Sammon; "giving" by Blackwell and Strawser On October 19, 1990, Steven Harriett, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1990, Jamie Ortega, who was under the age of 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 20, 1990, Brian McKinney, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On November 15, 1990, Karen Nelson, Hollie Smith, Michael Winter, and Julia Joyner, all underage, were in actual possession of an alcoholic beverage inside the licensed premises. On November 16, 1990, Denise Cooke and Teresa Sammon, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 5/ No evidence was introduced to establish the allegations of Counts 4 and 6 of Notice to Show Cause GA11900254, alleging "giving."
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic and Beverages and Tobacco enter a Final Order dismissing Notices to Show Cause GA11900209 and GA11900254; finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890374, imposing a total of $1750 in civil fines therefor; and finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890496, imposing a total of $2000 in civil fines therefor. RECOMMENDED this 28th day of June, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 June, 1991.
