The Issue Whether the Respondent committed the violations alleged in the Administrative Action dated April 28, 2008, as amended by the Division at the final hearing, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for regulating the sale of alcoholic beverages in the State of Florida, and for investigating and imposing discipline on persons holding licenses under Florida's Beverage Law. See §§ 561.02 and 561.29, Fla. Stat.(2007).1 The Pineapple Grille, which is located in Delray Beach, Florida, is a restaurant that serves food and alcoholic beverages. It holds a special restaurant license under Florida's Beverage Law, having been issued license number 60- 14514, Series 4COP. On or about February 25, 2008, Eric Scarborough, a special agent with the Division, visited the Pineapple Grille to investigate a complaint from an anonymous source alleging that employees of the Pineapple Grille had been refilling call-brand bottles in the bar with lower-grade liquor. Special Agent Scarborough's investigation revealed that the complaint received from the anonymous source was completely without foundation. During the visit on February 25, 2008, Special Agent Scarborough met with Renee Resemme, the manager and chef of the Pineapple Grille, and, as a matter of routine, served her with a notice requiring the Pineapple Grille to provide him with the previous six months' records of its sales and purchases of alcoholic and non-alcoholic beverages and food no later than March 3, 2008. Special Agent Scarborough requested these records as a matter of course because, under its license, the Pineapple Grille is required to have sales of food and non- alcoholic beverages comprise 51 percent of its gross revenue and because the Pineapple Grille must purchase alcohol from authorized distributors. Gurpal Singh and Ovide Paul are the owners of the Pineapple Grille. At the times material to this proceeding, Mr. Singh was the individual responsible for keeping the records of the business; Mr. Paul had been an owner of the business for only a short time before the notice was served and was not familiar with the manner in which the business's records were kept. At the time of Special Agent Scarborough's visit to the Pineapple Grille and for a significant period of time after the visit, Mr. Singh was in Seattle, Washington, on family business. When he received the notice served on Ms. Rosemme, Mr. Paul contacted the Pineapple Grille's certified public accountant, who had possession of the business records requested by Special Agent Scarborough. The certified public accountant told Mr. Paul that he was very busy, but he began gathering the records requested. The records had not been provided to Special Agent Scarborough by March 18, 2008, so he made a return visit to the Pineapple Grille on that date. Mr. Paul met with Special Agent Scarborough, and he told Special Agent Scarborough that he was not in charge of the documents but that the certified public accountant was getting them together. While the certified public accountant was trying to put the documents in order, the Division sent a letter requiring that records for the previous three years' sales of alcoholic and non-alcoholic beverages and food were to be produced. Upon receiving this letter, the certified public accountant wrote a letter to the Division requesting an extension of time to provide the records but there was no response to this request for an extension. The records were produced to the Division on August 6, 2008. During the five months in which Mr. Paul and the certified public accountant were working to get the records together, Mr. Paul made a number of telephone calls to Special Agent Scarborough's office to explain the delay in producing the records. Mr. Paul left his name and telephone number on the voice mail system whenever he telephoned, but he received no response from the Division.
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 finding that GN Hotels & Restaurant, Inc., d/b/a Pineapple Grille, violated Section 561.29(j), Florida Statutes, by failing to produce records of the purchase and sales of alcoholic and non-alcoholic beverages and food within 10 days of the request for such records and imposing an administrative fine in the amount of $500.00. DONE AND ENTERED this 30th day of September, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 September, 2008.
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.
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 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 Prior to October 1977 the Nite Gallery, Inc., a nightclub featuring topless dancers, held license 2-COP No.58-1175 and the stock was owned by Sherrill Ann Perkins and Dorothy Jean Copeland. The owners were anxious to sell and placed an advertisement which was seen by Robert Waldorf, who visited the bar to discuss price. Waldorf was accompanied by Richard Bragg and Mary Jo Kelly. Following discussion, Waldorf, who did all the talking for the purchasers, agreed to purchase the business for $12,000 and gave each of the owners a check for $1,000, receipt of which was admitted into evidence as Exhibit 3. On 13 October 1977 the operation of the bar was taken over by Waldorf, although the two owners were still holders of the license. The $1,000 checks given as down payment were on the account of Sharon's Novelties, at Winter Park National Bank, an account on which Waldorf was the only one authorized to sign checks. During the next few weeks, Waldorf wrote numerous checks on this same account to pay for various equipment, supplies and labor for the Nite Gallery. In Application for Transfer of Alcoholic Beverage License stamped 8 November 1977 (Exhibit 6), Dorothy Copeland signed the Affidavit of Seller stating the license was transferred to Mary Jo Kelly who signed the affidavit of buyer that "no other person except as indicated herein, has an interest in the alcoholic beverage license for which these statements are made." Nowhere in the application was reference made to Waldorf. In 1973 Waldorf was convicted in the U.S. District Court for the Western District of Tennessee of offenses involving the transportation in interstate commerce of forged securities and was sentenced to three years confinement with a three years probation period running concurrently with the confinement. (Exhibits 1 and 2). As a result of these felony convictions, Waldorf is ineligible to hold an alcoholic beverage license in Florida. At the time of these transactions, Waldorf and Mary Jo Kelly had been living together for approximately two years. She worked as a dancer and B-girl in various nightclubs, usually in a club where Waldorf also worked. Kelly had no experience or knowledge respecting the operation of a bar or any other business, and all decisions, including the decision to buy the bar and all management decisions thereafter, were made by Waldorf. The sellers, Copel and and Perkins, were informed that Waldorf was the one purchasing the bar and that the license was being put in Kelly's name because Waldorf was ineligible to hold the license. This information came from Waldorf. On November 2, 1977 Waldorf signed a promissory note (Exhibit 5) promising to pay Copeland $300 per month until the balance of the $5,000 owed her for the purchase of the Nite Gallery was paid. Immediately prior to and following the transfer of the license to Respondent, Kelly danced at the Nite Gallery occasionally but otherwise had little, if anything, to do with the business. Waldorf did the hiring and firing, kept the accounts, signed checks for the bills owed, zeroed out the cash register, provided the bartender with funds each day to open the bar, and held himself out and performed all the functions of an owner in fact. Waldorf made arrangements for radio advertising for the Nite Gallery and paid for this service. (Exhibit 10). In his application for telephone service ordered 4-2-78 for his residence, Waldorf stated his occupation for the past two years was owner of the Nite Gallery. (Exhibit 12). After the license was transferred to Mary Jo Kelly, Waldorf opened another bank account on which both he and Kelly were authorized to sign checks. Kelly often signed blank checks which Waldorf completed to pay various expenses of the Nite Gallery. Kelly made no deposits in this account, maintained no record of expenditures from this account, and she had no information regarding the disposition of, or the amount of, money passing through the cash register at the Nite Gallery. Respondent testified that she provided all of the money used to purchase the Nite Gallery and to pay the initial bills from her earnings as a dancer. She also testified that this same source of funds provided the capital needed to buy a house, boat and two or three cars including a Continental Mark IV driven by Waldorf. Respondent further testified that she made $400 per week from tips as a dancer at the. Fiesta Club in Orlando immediately before purchasing the Nite Gallery and that she made $400-$500 per week in tips at the Nite Gallery. Her testimony was that the dancers worked on tips only. Exhibit 8, which is a cash and expense report for the Nite Gallery for December 1, 1977, shows that four dancers shared $17 for their work that evening. Although this was shown on Exhibit 8 as Commissions, other testimony indicated it was accumulated at $1 for each drink the customers bought for four dancers in one evening. These figures strongly militate against Respondent receiving $400-$500 per week in tips at this establishment. Respondent's testimony that her earnings provided the funds for a house, boat, and three cars in addition to the costs involved in opening the Nite Gallery is simply not credible. The testimony by Orange County Sheriff's deputies that one of them was struck by an employee of the Nite Gallery while on the premises was unrebutted All of the witnesses, including Respondent, testified that Respondent performed no role in the day-to-day management of the Nite Gallery and that Respondent did not have the experience or ability to run a business. At the time Respondent surrendered her license to Petitioner in March, 1979 she voluntarily submitted to questioning and the tape of that interrogation and the transcript of the tape were admitted into evidence as Exhibits 21 and Therein Respondent gave her age as 20 years old and stated that Waldorf had directed her absence from the first hearing. At Waldorf's direction she went to Pennsylvania and entered the hospital for a short period so she could truthfully advise her attorney that she was in the hospital in Pennsylvania during the March hearing. During this interrogation Kelly stated that she received no income from the Nite Gallery, that Waldorf ran the business, and that she had no knowledge of how the business was doing.
Findings Of Fact Respondent holds license No. 16-816-SR, 4-COP, which is a special restaurant license. At about quarter of ten on the morning of September 13, 1977, Emil Marrero, James F. McAuley and Joe L. Nato, all of whom were then beverage officers, arrived at respondent's place of business. Officer Marrero purchased a fifth of rum from Elizabeth Boyd, who was behind the counter in the package store portion of respondent's premises. Ms. Boyd told Officer Marrero that, if he wanted a meal, he "would have to go to the kitchen around the building." (T29). Officers Marrero and Mato went outside the building in search of the kitchen but found the back door to the kitchen locked, Back inside, officer Nato discovered some slips of paper and cigarette packages that lacked tax stamps. Then respondent's employee Margaret Faye Lewis was asked where the kitchen was, she pointed to a padlocked door which John Davis, another of respondent's employee unlocked for the beverage officers. With some difficulty, the beverage officers located the kitchen, where they found respondent's cook, James Dowling. In response to the officers' questions, Mr. Dowling said that he had opened the kitchen that morning at quarter or half past ten as he customarily did seven days a week; that he ordinarily closed the kitchen at four in the morning; and that the business was open for the sale of liquor from seven in the morning till two the following morning. Officer Marrero wrote out a statement for Mr. Bowling's signature reciting the opening and closing times Mr. Dowling had related to him. Petitioner's exhibit No. 3. At this point, Robert H. Close, respondent's president, appeared and asked to read the statement, after which he said: These are a bunch of fucking lies. The restaurant is open at 7:00 A.M. in the morning. You have got no fucking right coming in here and telling my employees to sign anything. (T54) As a result of this outburst, Mr. Dowling declined to sign the statement Officer Marrero had prepared; and an argument between Mr. Close and Officer Marrero ensued. On respondent's premises, Officer McAuley counted "153 chairs, 32 2' by 2' tables, 36 cocktail tables and two tables capable of seating four people." Petitioner's exhibit No. 9. He found 43 spoons in the kitchen along with various victuals. Officer Marrero never actually requested a meal of any of respondent's employees. Once he had identified himself as a beverage officer, he testified, he "imagine[d] a roach in the corner would have jumped up and served [him] a meal if [he] so desired to have one." (T71). Although not assigned to the kitchen, Mr. Davis and Mrs. Lewis were available, before Mr. Dowling's arrival on September 13, 1977, to cook for respondent's patrons. Mrs. Lewis testified without contradiction that a full course meal could have been prepared if one had been requested. (T87). On September 13, 1977, "the Broward County Health Department . . . cited the [respondent] for being in violation of certain sanitary codes established by the State or County." Petitioner's exhibit No. 6. See petitioner's exhibit No. 4. On the same day, on behalf of petitioner, Officer Marrero gave respondent official, written notice that it had "been closed by the county health department & any further sale of alcoholic beverages without maintaining the SR requirement is in violation of [law]." Petitioner's exhibit No. 5. On the following day, Officers Marrero, McAuley and Mato returned to respondent's premises and waited outside while Officer Bates went in and, at twenty past two in the afternoon, bought a bottle. After Officer Bates' purchase, respondent was charged with "selling alcoholic beverages, being closed down by the Health Department." (T63). At three o'clock on the afternoon of September 14, 1977, representatives of the Broward County Health Department inspected respondent's premises and lifted the closure order, at the conclusion of the inspection. Although Mr. Close testified otherwise, respondent served no food on September 14, 1977, before the closure order was lifted. Respondent sold alcoholic beverages on September 14, 1977. On September 13, 1977, Officer McAuley asked Margaret Lewis if "the records" were on the premises. She answered affirmatively and led Officer McAuley to certain invoices and other records which he reviewed briefly. Later he asked Mr. Close "for all the invoices pursuant to the rule;" (T97) and Mr. Close was "requested . . . by official notice . . . [to] produce all documents concerning the operation of his business . . . (T123). In response to this request, Mr. Close furnished the beverage officers all of respondent's records then on the premises. Not on the premises were liquor invoices and other records dated on and after September 1, 1977, and invoices reflecting purchases of food. These records were at respondent's bookkeeper's at the time of the beverage officers' visit on September 13, 1977, but had been returned to respondent's premises by the time beverage officers returned on September 14, 1977. On September 13, 1977, the beverage officers left with all the records respondent had furnished. The beverage officers did not inquire about the additional records on September 14, 1977, and respondent's employees did not mention them at that time. Respondent's employees never took the additional records to petitioner's office. Robert Close gained control of respondent and respondent's license in 1968. On April 13, 1970, respondent paid a stipulated civil penalty of one hundred dollars ($100.00), because a patron bought liquor in the package store portion of respondent's premises and shared it with a minor in the lounge portion of respondent's premises. On March 2, 1971, respondent paid a civil penalty of one hundred fifty dollars ($150.00) in connection with an alleged violation of Rule 7A-3.15(b), Florida Administrative Code. On July 2, 1975, respondent paid a civil penalty of seventeen hundred fifty dollars ($1,750.00) after a notice to show cause alleged the following matters: On the 19 day of July 1973, on your licensed premises, SUNRISE EMBASSY LOUNGE, FREDDY THOMAS, your agent, servant or employee, did sell to Agent L. LAWSON BROWARD COUNTY SHERIFFS OFFICE, for the sum and consideration of $20.00 U.S. Currency, a quantity of narcotics, to wit Heroin. This being in violation of F. S. 893.13 (1A1). On or about September 21, 1973, on the above described premises, you, your agent, servant or employee did continue the sale of alcoholic beverages when the service of full course meals had been discontinued, in violation of Florida Alcoholic Beverage Rule 7A-3.15. On or about September 21, 1973 on the above described premises, you failed to maintain necessary china and table ware to serve 200 persons, in violation of Florida Alcoholic Beverage rule 7A-3.15(e). On or about October 17, 1973 investigation revealed that you, SUNRISE EMBASSY LOUNGE INC., D/B/A SUNRISE EMBASSY LOUNGE, did fail to submit within 10 days a certified copy of minutes of stockholders meeting at which a change of officers was effected, in violation of Florida Alcoholic Rule 7A-2.07(2). On or about September 21, 1973 investigation revealed that on August 8, 1973, August 30, 1973, September 6, 1973, September 13, 1973, you, SUNRISE EMBASSY LOUNGE, INC., D/B/A SUNRISE EMBASSY LOUNGE did fail to maintain the sanitary code of Florida, in violation of F. S. 381.031 and chapter 100.13 FAC Sanitary Code of Florida. On October 15, 1975, respondent paid a civil penalty in the amount of two hundred fifty dollars ($250.00) for failure to disclose to petitioner a change in its corporate officers. Respondent employs seven or eight persons. Rule 7A-3.15(b) Florida Administrative Code, for alleged violations of which respondent paid civil penalties, has since been adjudged inapplicable to licenses like respondent's. Thayer v. State, 335 So.2d 815 (Fla. 1976).
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner impose a civil penalty against respondent's license in the amount of two thousand dollars ($2,000.00). DONE and ENTERED this 11th day of January, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dennis E. LaRosa, Esquire Staff Attorney 725 South Bronough Street Tallahassee, Florida 32304 Robert C. Stone, Esquire Suite 400, Center Court Building 2450 Hollywood Boulevard Hollywood, Florida 33020
