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
Findings Of Fact At all times material hereto, the Respondent, Larry Lyles, was the holder of Florida Beverage License No. 26-2105, license series 2ABS. The licensed premises to which this license was issued is Larry and Gail's Pool Hall, 306 West Eighth Street, Jacksonville, Florida. On August 11, 1982, Mr. Keith Bernard Hamilton, a beverage officer for the Division of Alcoholic Beverages and Tobacco, went to the licensed premises pursuant to an assigned drug investigation. Officer Hamilton, after entering the licensed premises, purchased a beer from Gail Thomas a/k/a Patricia Ann Thomas. Gail Thomas was tending bar. After purchasing the beer, Officer Hamilton sat in a chair approximately 20 feet from the bar, and a few minutes later, approached a young man named Larry and asked about buying some smokes". "Smokes" is a term commonly used to refer to marijuana. Larry asked him how much he wanted and whether he had the money with him. Officer Hamilton stated he wanted two (2) bags and that he did have the money. Officer Hamilton then gave Larry $10 and Larry walked over to a young man named Hamp. Larry handed Hamp the $10 in currency and Hamp handed Larry two small manila envelopes. This exchange took place approximately five feet from the bar in the presence of Gail Thomas. Gail Thomas was one of the owners of the bar. The conversation between Officer Hamilton and Larry was in a normal tone of voice and could have been easily overheard by Gail Thomas and others in the bar. After receiving the two () manila envelopes from Hamp, Larry handed them to Officer Hamilton. Later, lab analysis revealed that these two envelopes contained cannabis, a controlled substance under Chapter 893, Florida Statutes. On August 20, 1982, Officer Hamilton returned to the licensed premises. After entering, he purchased a beer from Gail Thomas and began playing pool. When Gail Thomas began cleaning a table near the pool table, he asked her if anyone had "smokes". She said no but that someone next door might. She then indicated she was going next door to get change. She left, and upon returning, she informed Officer Hamilton that a man next door had some "smokes". She then asked if he wanted her to get some for him. He said yes and gave her $20 in currency. She left and came back with two manila envelopes and two $5.00 bills as change. Later, lab analysis revealed that the two manila envelopes contained cannabis, a controlled substance under Chapter 893, Florida Statutes. On August 21, 1982, Officer Hamilton again visited the licensed premises, and upon entering, purchased a grape soda from Gail Thomas. He saw the young man named Hamp shooting pool and walked over to him and asked him about purchasing some smokes. Hamp said he had some real good stuff and that if he didn't like it, he would buy it back. Officer Hamilton then purchased one manila envelope from Hemp. The exchange took place in the presence of Gail Thomas, who was nearby cleaning tables. After the exchange, Hemp suggested to Officer Hamilton that he try some of the material in the envelope there in the bar. Officer Hamilton declined and Hamp told him "It's okay, Gail doesn't care". Later, lab analysis revealed that the envelope purchased from Hemp contained cannabis, a controlled substance under Chapter 893, Florida Statutes. At the time of each of the purchases on August 11, 20, and 21, 1982, Gail Thomas was the only bartender or person actually working in the licensed premises. Officer Hamilton never observed another employee or person supervising or maintaining in any way the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent's alcoholic beverage license be revoked. DONE and ENTERED this 30th day of June, 1983, in 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 30th day of June, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Larry Lyles 306 West Eighth Street Jacksonville, Florida R. R. Caplano, Captain Division of Beverage Post Office Box 5787 Jacksonville, Florida 32202 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Executive Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether respondent's alcoholic beverage license should be suspended or revoked for alleged violations of the Beverage Law, Chapters 561 and 562, Florida Statutes (1981).
Findings Of Fact At all times material hereto, respondent held alcoholic beverage license No. 15-388 2-COP, authorizing it to sell beer and wine at its business known as Golden Dolphin #2, ("licensed premises") located at 218-B Highway A1A, Satellite Beach, Florida. The licensed premises includes a bar, lounge, and stage where nude or partially nude dancers provide live entertainment. I. Alleged Violations Occurring On July 3, 1980 During the evening of July 3, 1980, Beverage Officers B. A. Watts and Kevin Ashcroft entered the licensed premises in an undercover capacity. Officer Watts sat down at a table and ordered a beer. Patricia Belle Gardener a/k/a "Peaches," employed by respondent, approached and sat down at his table. While they were talking, Anita Jackson, a waitress employed by respondent, approached and asked him, "Do you want to buy Peaches a drink?" or words to that effect. He turned to Peaches and asked her if she wanted a drink; she answered "Yes." He then ordered a wine cocktail for her and paid Ms. Jackson $5.00. (Testimony of Watts.) Later that evening, Peaches asked Officer Watts if he would buy her another drink. He replied that the price was rather steep but that, if she got part of it, he would agree. After she replied that she received a commission from the sale, he agreed. She summonned waitress Jackson, and told her that he wanted another drink. Ms. Jackson asked Officer Watts if he wanted a bottle, which she said was a "better deal." (Tr. 32) After hearing the price, he declined and ordered her another wine cocktail. (Testimony of Watts.) Officer Watts then asked Peaches what time she got off work and if she had a date. She told him the time, and that she did not have a date. He asked if she liked to have a good time, to which she replied, "Yes, how much money have you got?" (Tr.33) He answered "How much will it take?" and offered her $20. She said "that's not enough." He asked, "[H]ow about $30?" (Tr.33) She agreed. He asked, "What will $30 get me?" and she replied, "Half and half," which--in street talk--means oral and sexual intercourse. (Testimony of Watts.) Officer Ashcroft, who had entered the premises with Officer Watts, had seated himself at the bar. He was approached by Laurie Thornton, another female dancer employed by respondent, who asked, "How about buying me a drink?" or words to that effect. He declined, after which she approached another patron at the bar. (Testimony of Ashcroft.) No evidence was adduced to show that respondent, through its owners or managers, knew that its employees were asking or soliciting customers to purchase alcoholic beverages for the employees' consumption. II. Alleged Violations Occurring On February 19, 1981 In February, 1981, DABT launched another investigation of the licensed premises. On February 19, 1981, Beverage Officers Fred Dunbar and Rufus Blanton entered the licensed premises, set at a table near the dance stage, and ordered beers from Helen Davis, a waitress employed by respondent. McKinney Rojas, a/k/a Tia Marie, a dancer employed by respondent, approached them and sat down at their table. Almost immediately, waitress Davis appeared and asked "Are you going to buy Ti [meaning Tia Marie] a drink?" (Tr.-73) Officer Dunbar replied, "Ti ain't said nothing about wanting a drink." (Tr.-73) Tia Marie then explained: Fred, let me explain it to you. This is a beer and wine bar, and it's against the rules for us to drink beer. What I'd like for you to do is buy me a bottle of champagne. Helen will bring it to us in a bucket of ice with two glasses and we can sit here and drink it together, and we can talk. (Tr.-73) Officer Dunbar agreed and ordered a small (6.3 oz.) bottle champagne for $10.00. Waitress Davis then brought it to the table with a bucket of ice and one glass. He continued to drink his beer; she drank the champagne and remained at the table for approximately 45 minutes, then excused herself because it was her turn to dance on stage. (Testimony of Dunbar, Blanton.) Tia Marie then returned to the beverage officers table. Almost immediately waitress Davis appeared and asked Officer Dunbar if he was going to buy Tia Marie another bottle. He declined. Tia Marie then stood up, and asked Officer Blanton if he was going to buy her a bottle. Waitress Davis asked him the same question. He agreed, waitress Davis brought another bottle of champagne, and he paid her $10.00. During this conversation, Tia Marie explained to the officers that she was getting a 25 percent commission for the drinks customers bought for her; that they were really paying for her company, not for the champagne. (Testimony of Blanton, Dunbar.) During that same evening, Beverage Officer Watts entered the licensed premises and sat at another table near the dance stage. He ordered a beer from waitress Davis. Shortly thereafter, "Sabal," a female dancer employed by respondent, sat down at his table and engaged him in conversation. A few minutes later, waitress Davis appeared and asked if he wanted to buy Sabal a drink. He turned to Sabal and asked her what she wanted. She replied, "Helen [Davis] can explain it to you." (Tr.-46) Ms. Davis then explained that he could buy a bottle of champagne for Sabal for $10.00. He agreed. (Testimony of Watts.) After Sabal finished drinking the champagne, she asked Officer Watts if he would buy her another bottle. He replied that it was a rather steep price, that he might agree if she got something out of it. After being assured that she received a commission of $3.00 per bottle, he agreed to purchase her another for $10.00. Waitress Davis, again, brought it to the table. After finishing her second bottle, Sabal told Officer Watts that it was her turn to dance and went to the nearby stage. (Testimony of Watts.) III. Alleged Violations Occurring On February 26, 1981 On February 26, 1981, the three beverage officers (Watts, Dunbar and Blanton) returned to the licensed premises. Officers Dunbar and Blanton again sat at a table near the stage, Officer Watts sat at another. While seated at their table, Officers Dunbar and Blanton were approached by "Dominique" (later identified as Madeline C. Droege), a female dancer employed by respondent. Dominique was wearing black panties, stockings with a garter belt, high-heeled shoes, and a silk elastic-like material covering her breasts. Almost immediately, waitress Davis appeared and asked, "Are you going to buy Dominique a drink?" (Tr.-77) Officer Dunbar replied, "We're not going to go through all that again are we?" (Tr.-77) Waitress Davis laughed, and Dominique said she would like to have some wine. But before he agreed to buy her wine, the conversation turned to the subject of lap dancing. (Testimony of Dunbar, Blanton) Dominique told Officer Blanton that she would perform a lap dance for him for $5.00. He agreed. When the next song started, she removed the silk material covering her breasts and straddled Officer Blanton's lap. Wearing only panties and high-heeled shoes, she simulated sexual intercourse by rotating and gyrating the lower part of her body. During the lap dance, she massaged her breasts with her hands. Later that evening she also performed the same type of dance on Officer Watts, for which she was also paid $5.00. (Testimony of Blanton, Watts.) After Dominique departed, Michelle Smith, another female dancer employed by respondent, approached the officers' table and asked if she could join them. They agreed, she sat down, and then waitress Davis appeared, asking, "Are you going to buy Michelle a bottle of champagne?" (Tr.-80) At first, he resisted. But Miss Smith encouraged him, "Oh, come on, Fred, buy me a bottle of champagne. (Tr.-81) He finally agreed, and waitress Davis brought a bucket of ice, a glass, and a small bottle of champagne, for which he paid $10.00. Miss Smith also told the officers that she received a commission on the champagne sales. After drinking half of the bottle she left the table, explaining that she had to go backstage. (Testimony of Dunbar.) She returned to the table a few minutes later, finished the bottle of champagne, and requested another. At the same time, she turned the bottle upside down in the ice bucket and admitted that this was a signal to the waitress that she wanted another bottle. Waitress Davis then returned to the table and--at Miss Smith's request--Officer Dunbar purchased her a second bottle of champagne. She later requested that he purchase a third bottle, but he declined, explaining that he was out of money. She then left the table and performed a striptease on the nearby stage. (Testimony of Dunbar.) Before leaving the premises, the two officers were approached by Tia Marie, the same dancer whom they had met on February 19, 1981. She sat at the table and asked Officer Blanton to buy her a drink. He agreed and waitress Davis returned with a bottle of champagne. Tia Marie consumed the champagne, then turned the bottle upside down on the ice bucket. (Testimony of Dunbar, Blanton) That same evening, Office Watts--who had seated himself at another table nearby--was also approached by Dominique, who sat down and engaged him in conversation. Waitress Davis soon appeared and asked if he would like to buy the lady a drink. He said the lady had not asked for one; Dominique responded that she would like to have one. She then ordered a bottle of champagne for which Officer Watts paid the waitress $10.00. (Testimony of Watts.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be revoked for multiple violations of the Beverage Law. DONE and RECOMMENDED this 20th day of April, 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 20th day of April, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Samuel S. Henderson, Esquire and Jerrold A. Bross, Esquire 1365 North Courtney Parkway, Suite D Merritt Island, Florida 32952 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the acts alleged in the Administrative Actions dated July 7, 2008, and September 5, 2008, and, if so, what disciplinary action, if any, should be taken against Respondent.
Findings Of Fact At all times material to this matter, Respondent was licensed under the Florida Beverage Law by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued License Number 26-07803, Series KLD, by Petitioner. A Series KLD license is one issued by Petitioner to distribute alcoholic beverages. Petitioner seeks to impose sanctions on Respondent for violations of Subsection 561.29(1)(a), within Subsection 561.29(1)(a), within Subsection 561.55(3)(a), Florida Statutes, on February 18, 2008. Petitioner also seeks to impose sanctions on Respondent for violations of Subsections 561.411(1)(a) and (b), Florida Statutes, for the period on December 1, 2006, through November 30, 2007. Christopher John Eiras (Eiras) is the managing director of Respondent distributing company. Eiras closed on the purchase of Respondent on August 31, 2007. Although he took over ownership of Respondent on that date, he had been involved with helping the company since its inception and had been directly involved in the creation of the business. Respondent, as a corporate entity and the holder of the license, is ultimately responsible for the violations alleged in the Administrative Action, if proven. Moreover, Eiras kept the records for the audit period at issue in his house and, therefore, had control over the records requested by Petitioner. Petitioner performed an audit of Respondent for the time period of December 1, 2006, through November 30, 2007. In the course of the audit, and pursuant to Subsection 561.29(1)(j), Florida Statutes, Petitioner requested that Respondent produce certain records. Pursuant to Florida Administrative Code Rule 61A-4.023, "distributors shipping or delivering alcoholic beverages for consumption outside the confines of the State of Florida must supply the Division with a copy of the bill of lading, must show the type of beverages, amount by size container and gallonage of each type shipped by common carrier or licensees' vehicles and a certificate from a representative of the appropriate agency of the jurisdiction into which the alcoholic beverages were shipped stating the shipment has been reported properly to that agency." Respondent supplied general documentation from FedEx and UPS regarding shipments, but Petitioner believes this documentation falls short of what is required by Florida Administrative Code Rule 61A-4.023. The records requested by Petitioner are significant because they form the basis for giving a distributor a deduction from the payment of excise tax, the tax required to be remitted to the State of Florida, for out-of-state sales. The distributor must pay the excise tax on the sale of alcoholic beverages within Florida. Petitioner had worked closely with Respondent and made numerous attempts to bring Respondent into compliance through its records production. Because Eiras was the new owner of Respondent, and because the former auditor (with 37 years of experience) passed away during the audit of Respondent, the new auditor, Margaret Perez, gave Respondent what she termed "an enormous gift" by settling the audit for liabilities of $829.39 and $45.22, with the understanding that Respondent would still produce the requested records. Petitioner issued two letters related to the audit. The first, dated August 15, 2008, found a liability of $45.22, and required payment within ten days of receipt of the letter. No mention was made in the letter of any documents required to be produced by Respondent. Respondent timely paid the $45.22 liability. The second, dated August 18, 2008, found a liability of $828.39 and required payment within 10 days of receipt of the letter. No mention was made in the letter of any documents required to be produced by Respondent. Respondent timely paid the $828.39 liability. Petitioner testified that acceptance of the payments from Respondent did not excuse the production of documents, yet no official communication was issued by Petitioner requiring such production following the August letters and payment of the liabilities set forth in those communications by Respondent. Additionally, pursuant to Subsections 561.411(1)(a) and (b), Florida Statutes, Respondent is required to own "an inventory of alcoholic beverages which is equal to at least 10 percent of the distributor's annual case sales to licensed vendors within this state or to licensed vendors within the malt beverage distributor's exclusive sales territory; or [a]n inventory for which the cost of acquisition is not less than $100,000." The Distributor Qualifications audit showed that Respondent had zero value for its inventory. Further, although Respondent claimed inventory for two supplier products, Urban Brands and Happy Vodka Corporation, both of which are owned by Eiras, Petitioner has not received proof of payment for these products from Respondent that satisfies its interpretation of the requirements of law. Respondent supplied company-generated spreadsheets which, it argues, are sufficient to comply with Petitioner's requirements. These spreadsheets specifically list the inventory as of August 31, 2007, the date of the purchase of Respondent by Eiras from Gray Solomon, the previous owner. The inventory is listed by item number, item description, number of items on hand, average cost per item, percent of total asset, sales price, retail value, percent of total retail, and owned inventory. This detailed spreadsheet shows a total owned inventory of $139,964.24, an asset value of $480,731.15 (most of which is under bailment for other suppliers), and a total retail value of $624,140.59 for all product, whether owned or under bailment. Petitioner expected to receive the source documents or back-up for the inventory and sales. Respondent provided canceled checks and invoices at some point that it believed satisfied this request. Clearly, Respondent was not timely in its response to Petitioner's document requests. Respondent supplied documents such as invoices and bills of lading showing deliveries to Respondent's warehouse in Jacksonville and shipments to locations both within Florida and out-of-state. A question remains as to whether the back-up material fully responds to Respondent's requests for production of documents under Subsection 561.29(1)(j), Florida Statutes, for the audit period. Petitioner has not accepted the documentation provided by Respondent as proof of Respondent's compliance with the audit document request. No complete explanations were offered by Petitioner as to why it would not accept Respondent's documentation as at least some evidence of Respondent's intent to comply with Petitioner's document request. Petitioner offered testimony that it believed shipments were being made by entities other than Respondent. The documentation supplied by Respondent, however, shows numerous shipments and receipts of alcoholic beverage products in the name of "Liquor Group Florida" or "Liquor Group Florida, LLC."
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order as follows: Assessing a $500.00 fine against Respondent for violating Subsection 561.29(1)(j), Florida Statutes; Ordering Respondent to produce all reasonably requested records for any and all future audits, including, but not limited to, bills of lading as required by Florida Administrative Code Rule 61A-4.023, for sales made outside of Florida; Dismissing the Administrative Action against Respondent alleging violations of Subsection 561.411(1)(a) or (b), Florida Statutes; and Dismissing the Administrative Action against Respondent alleging violations of Subsection 561.55(3)(a), Florida Statutes. DONE AND ENTERED this 4th day of June, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 4th day of June, 2009. COPIES FURNISHED: Sarah Christine Naf, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202 Joshua B. Moye, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Christopher John Eiras 830-13 A1A North, No. 155 Ponte Vedra Beach, Florida 32082 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerry Geier, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether an administrative fine should be imposed on Respondent for unlawful possession of certain alcoholic beverages on its licensed premises, as alleged in the Administrative Action dated June 2, 2008.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary action, Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division), seeks to impose a penalty on the license of Respondent, M and Y Vaco, Inc., doing business as M and Y Food Mart ("M and Y"). Respondent, M and Y is the holder of Beverage License Number 1618148 Series 2-APS, that permits the sale of beer and wine but no other alcoholic beverages. On or about May 29, 2008, Special Agent David Kordzikowski conducted a routine inspection of M and Y at 301 East Sunrise Boulevard, Ft. Lauderdale, Florida. During the inspection, the special agent looked in an unlocked cabinet on the west side of the premises and found four 750 mililiter bottles of Barbancourt Rhum, one 1.44 liter bottle of Disaronno Liquor, one 1 liter bottle of Ron Llave Puerto Rican Rum, one 1 liter bottle of Bailey's Irish Cream, and one 1.75 liter bottle of Florde Cana Rum. Of the eight bottles, two were unsealed. Five of the bottles, the Barbancourt Rhum and the Disaronno Liquor, did not have the necessary proof that approximately $7.67 in Florida excise taxes had been paid. At the time the alcoholic beverages were found, the employee on duty was M and Y's Vice President Monette Corneille. Mrs. Corneille and her husband, Yves Corneille, testified that they did not know that it was illegal for them to possess alcoholic beverages other than beer and wine, and that the rums and liquors were gifts and were kept for religious purposes to protect the premises. The special agent testified that the location of the cabinet, Mrs. Corneille's immediate response, and her explanation of religious beliefs about "spirits" led him to believe the violation was unintentional. In its proposed order, the Division suggests the imposition of fines of $1,507.67, but notes that a reduced penalty may be imposed if mitigating circumstances are established.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order determining that Respondent has violated Sections 562.01 and 562.02, Florida Statutes (2008), as charged in the Administrative Action, and imposing an administrative fine in the amount of $500 and an excise tax of $7.67. DONE AND ENTERED this 19th day of March, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 19th day of March, 2009. COPIES FURNISHED: Yves Corneille Monette Corneille M and Y Vaco, Inc., d/b/a M and Y Food Mart 301 West Sunrise Boulevard Fort Lauderdale, Florida 33311 Gerda Desir M and Y Vaco, Inc., d/b/a M and Y Food Mart 301 West Sunrise Boulevard Fort Lauderdale, Florida 33311 Michael John Wheeler, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32303 Cynthia Hill, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent's alleged possession of marijuana and paraphernalia commonly associated with its trafficking and sale justifies suspension or revocation of his Florida teaching certificate.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: I. BAKER holds Florida teaching certificate No. 403108. From 1976 to 1980, he taught fourth and fifth grades at Fessenden Academy, an elementary school located in a rural area of northern Marion County. He was a competent classroom teacher. In 1979, upon recommendation of his school principal, the Marion County School Board granted him continuing contract status--a form of tenure. (Testimony of Broxton, Prehearing Stipulation.) II. In the early part of 1979, BAKER--against the advice of his school principal--became involved in helping operate a small nightclub in Ocala known as the Club Aquarius ("Club"). Although there was no School Board policy against part-time employment by teachers, BAKER's principal advised against becoming involved with the Club because of its poor reputation in the community. However, BAKER's subsequent operation of the Club Aquarius did not adversely affect his teaching performance. (Testimony of Broxton.) During his employment at the Club, several members of the community informed BAKER's school principal that they suspected illicit drugs could be obtained there. In response to his principal's inquiry, BAKER repeatedly denied that anyone at the Club was involved in drug dealing. (Testimony of Broxton.) II. The owners of the Club (Mr. and Mrs. Clyde Howard and Dr. Ernest Lamb 2/ ) applied for and were issued a "2-COP" license by the Department of Business Regulation, Division of Beverage, in 1977. Only beer and wine may be sold under such a license. Possession of distilled liquor on the premises is not allowed. In accordance with the Division's requirements, a "Sketch of the Licensed Premises" was made by the Division of Beverage agent, verified by one of the owners, and attached to the application. The owners also executed an attached affidavit swearing that the sketch was "substantially a true and correct representation of the premises to be licensed and . . . [agreeing] that the place of business, if licensed, may be inspected and searched during business hours . . . without a search warrant . . . ." (P-1.) The sketch depicts those portions of the Club Aquarius building where the license is intended to be in effect-- where routine beverage inspections may be conducted without a search warrant. The owners understood that adjacent property which they controlled and which was accessible by passage from the nightclub was considered part of the licensed premises and subject to warrantless search under the Beverage Law. In order to remove such adjoining property used for residential purposes from the licensed premises (and sketch attached to the application) they understood that the passage way must be permanently sealed. (Testimony of Scroggin; P-1.) The sketch shows the licensed premises of the Club consists of two floors. The first floor includes the main bar, dance floor, kitchen, restrooms, storage room, and package sales area. Stairs on each side of the dance floor lead to the second floor, which consists of restrooms, a balcony overlooking the dance floor, and several additional rooms, one of which contains a wooden bar. The second floor area provides a quiet atmosphere for customers preferring to enjoy drinks and dance floor entertainment from the overlooking balcony. The second floor area permits free passage and is directly connected to the Club's first floor business area. (Testimony of Scroggins, Jones, Imperial; P-1.) III. At approximately 4:45 p.m., on January 24, 1980, Richard Jones and Michael Imperial--Beverage officers employed by the Florida Division of Alcoholic Beverages and Tobacco--began an inspection of the Club Aquarius to determine compliance with the Beverage Laws. Neither officer suspected or had reason to believe that illegal alcohol or illicit drugs might be found on the premises. The last time Agent Jones had inspected the Club to ascertain compliance with the Beverage Laws was in February, 1979; during that inspection, no illegal alcohol or illicit drugs had been found. Agent Imperial had inspected the Club early in 1978, and found nothing out of order. The practice of their Division was to routinely inspect the premises of licensed alcoholic beverage establishments at least once per year. On that afternoon of January 24, 1980, the Beverage agents decided on their own initiative to inspect the Club because they were in the vicinity and had time to conduct a periodic routine inspection. (Testimony of Jones, Imperial, Deen.) After identifying themselves, the two Beverage officers informed BAKER and his brother, Clyde Baker--who were operating the Club--that a routine beverage inspection would be conducted. The officers then inspected the cooler, bar, and surrounding first floor area. After finding some empty cognac bottles in a trash can, Officer Jones informed Clyde Baker that the presence of such bottles on the premises was unlawful. Jones then asked him to show him the upstairs part of the Club. Together they climbed the stairs to the second floor. There, Officer Jones observed that a door, with an "Office" sign on it, was ajar. He entered the room and observed two bottles of distilled liquor in plain view on a bar: that bar is depicted on the "Sketch of Licensed Premises" attached to the beverage license application, infra. After placing Clyde Baker under arrest for allowing distilled liquor on an establishment with a 2-COP license, Officer Jones continued to inspect the room for additional contraband. He searched a chest of drawers and found in the bottom drawer a triple beam balance scale and approximately 40 small paper envelopes commonly referred to as "nickel bags" --paraphernalia commonly used by drug dealers to measure and sell illicit drugs. He also discovered two plastic bags--one, 6" x 6", and another, 10" x 10". The smaller bag contained what appeared to be marijuana; the other contained what appeared to be marijuana residue. Upon discovery of what appeared to be marijuana, Officer Jones exclaimed "marijuana". BAKER, who had just come upstairs with his wife, entered the room and responded: "That's not marijuana, that's just my seeds." (Tr. 43.) Agent Jones immediately arrested BAKER for possession of marijuana, and escorted him downstairs. After resuming his search of the second floor area, Jones entered another room depicted on the "Sketch of Licensed Premises"; there he found a metal can--approximately 10" x 12"--which appeared to contain marijuana residue. (Testimony of Jones; P-1.) The two upstairs rooms where the marijuana and paraphernalia were found were depicted on the beverage license application as a part of the licensed premises. They were unlocked and accessible from the first floor; one room contained a bed, chest of drawers, dresser, clothes, and other personal effects; the other room contained a cot. Both rooms looked as if someone might sleep in them for several hours or an evening. At hearing, the parties stipulated that BAKER sometimes used one of the rooms as his residence. Immediately after the marijuana was found, Clyde Baker stated that he was manager of the Club and responsible for the marijuana and liquor being there. It is concluded that the Club manager exercised dominion and control over the second floor rooms. However, most of the equipment and supplies normally used in the operation of the nightclub, such as beer, wine, coolers, dance floor, and barstools, were located on the first floor. Customers could come and go without entering the second floor area. (Testimony of Jones, Prehearing Stipulation; P-1.) BAKER was subsequently charged with unlawful possession of less than 20 grams of marijuana pursuant to Section 893.13, Florida Statutes. The School Board of Marion County thereupon suspended him from his teaching duties at Fessenden Academy. Crime lab analysis confirmed that the two plastic bags and metal can contained marijuana residue with a total weight of less than 20 grams. Fingerprints on the metal can, and plastic bags were identified as belonging to BAKER. On May 7, 1980, BAKER pled guilty to the charge of possession of less than 20 grams of marijuana. The County Court of Marion County withheld adjudication of guilt and sentenced BAKER to pay $500 in court costs, and suspended a sentence of one year of imprisonment in the county jail upon the condition that BAKER would commit no further criminal offenses for a period of one year. (Testimony of Broxton, Prehearing Stipulation; P-2, P-3.) III. School Board hearings involving BAKER's suspension were televised and his involvement with marijuana has become widely known in the community. Newspapers have published accounts of the criminal charges and their disposition. His arrest and subsequent plea of guilty to the charge of possession of marijuana have gained notoriety and seriously reduced his effectiveness as a teacher for the Marion County School Board. Parents of children at Fessenden Academy would object to BAKER resuming his teaching duties there. Teachers must serve as examples and impart character and moral values to their students. BAKER's involvement with marijuana has interfered with his ability to effectively carry out this important function. (Testimony of Broxton, Jones.)
Conclusions Petitioner has established that Respondent's possession of marijuana and paraphernalia commonly associated with its trafficking and sale violates Section 231.28, Florida Statutes (1979). Permanent revocation of his teaching certificate is warranted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the teaching certificate of Respondent, Clinton Baker, be revoked permanently. DONE AND ORDERED this 23rd day of March, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the clerk of the Division of Administrative Hearings this 23rd day of March, 1981.
The Issue This case concerns the issue of whether Respondents' beverage license should be suspended or revoked or otherwise disciplined for sale of alcoholic beverages to a minor. At the formal hearing, the Petitioner called as witnesses Ervin A. Hooper, Patricia Perkins, Christine Ellis, Paul C. Davis, and John Sokol. Petitioner offered and had admitted into evidence one exhibit. Respondent Richard N. Jiosne testified on behalf of Respondents and Respondents also called John Hanks as a witness. Respondents offered and had admitted two exhibits. Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with the findings and conclusions in this order, they were rejected as being not supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact At all times relevant to these proceedings, the Respondents Richard N. and Ann N. Jiosne were the holders of beverage license No. 39-186, Series 2APS. The license is issued to a drive-through beverage establishment located in Brandon, Florida, and known as the Beverage Castle. The licensed premise is a drive-through facility which sells beer, along with other grocery items and sundries. The Beverage Castle is operated by Mr. and Mrs. Jiosne, along with their son and an employee named John Hanks. Late in the afternoon or early evening of July 22, 1983, Patricia Perkins and Christine Ellis drove into the Beverage Castle for the purpose of buying beer. They drove in and stopped and a young boy that appeared to be between 12 and 14 years old came to the car and asked what they wanted. The driver, Patricia Perkins, told him that they wanted a six pack of Michelob beer and he immediately went to a cooler and removed a six pack of Michelob beer and handed it to an older gentleman. The older gentleman then handed the beer to Patricia Perkins and collected her money for the beer. At no time was Patricia Perkins asked for identification. She had not purchased beer at this establishment previously. The young boy was Ritchie Jiosne, the son of Mr. and Mrs. Jiosne, the owners. The older gentleman was John Hanks, the evening manager of the Beverage Castle. On July 22, 1983, Patricia Perkins was 16 years old and her date of birth is December 30, 1966. The passenger in the automobile, Christine Ellis, at the time of the purchase was 17 years old and her date of birth is December 28, 1965. Prior to Patricia Perkins and Christine Ellis entering the Beverage Castle, a deputy of the Hillsborough County Sheriff's Department had had the licensed premises under surveillance. He had observed several cars drive through with individuals who appeared to be young purchasing beer without being required to show identification. The officer also observed the purchase made by Patricia Perkins and Christine Ellis and observed no identification being shown by Patricia Perkins to either of the individuals working at the Beverage Castle that evening. The owners have a policy against selling alcoholic beverages to minors. There is a sign posted next to the register which states: LOOK WE ABSOLUTELY DO NOT, WILL NOT, AND REFUSE TO SERVE ANYONE!, WHO IS ASKED AND DOES NOT HAVE PROPER I.D. HAVE YOUR CARD READY. The employees have been instructed to not serve alcoholic beverages to minors and to check identification. The Beverage Castle has a reputation within the high school students of Brandon, Florida, as a place where minors can buy beer. A prior violation was brought against the Respondents' license within the past year for sale of alcoholic beverages to a minor. That case resulted in recommended dismissal by the Hearing Officer and the Director of the Division of alcoholic Beverages and Tobacco adopted that recommendation and dismissed the case.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered finding the Respondents guilty of the charge as set forth above and imposing a civil penalty of $150.00. DONE and ORDERED this 8th day of June 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 8th day of June 1984. COPIES FURNISHED: Louisa Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. Patrick McElroy, Esquire Suite 200 - Rutland Bank Building 1499 Gulf to Bay Boulevard Clearwater, Florida 33515 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
