The Issue Whether petitioner's application for an alcoholic beverage license should be denied because of the direct or indirect interest of John Lee Johnson, a person allegedly lacking good moral character.
Findings Of Fact In May, 1982, petitioner Betty Jean Johnson applied for a 2 APS (beer and wine) alcoholic beverage license to be used in connection with a business known as Johnson's Corner Grocery, 1400 North J. Street, Pensacola, Florida. On her application, petitioner indicated that she owned the business and that no other person had a direct or indirect interest in the business. (R-1) Prior to the petitioner filing her application, John Lee Johnson, her husband, had applied for a beverage license for the same location under his own name. When he failed to disclose his criminal history on the application, his application was denied and he was charged with the crime of filing a false official written statement. On May 12, 1982, he was convicted by the County Court of Escambia County. (Testimony of Baxley; R-3) John Johnson's filing of a false official statement supports an inference that he lacks good moral character. Petitioner did not present evidence sufficient to rebut or negate this inference. Contrary to petitioner's assertion, John Johnson has a direct or indirect interest in Johnson's Corner Grocery. He owns the underlying real property. He signs, and is authorized to sign, checks on the business account of Johnson's Corner Grocery. The business's utilities, light, water, and gas accounts are all in his name. (Testimony of Baxley, Johnson, Kelly; R-4) Petitioner, however, manage's the day-to-day operations of Johnson's Corner Grocery. On her application, she indicated that she had purchased the business for $80,000, with $25,000 down, and $55,000 financed by the Barnett Bank. She now admits that the $25,000 down payment was provided by John Johnson, her husband, and that he also co-signed the $55,000 note and mortgage. Her application, however, does not disclose Mr. Johnson's participation in the purchase and financing of, the business. (Testimony of Johnson; R-1, R-4) On November 9, 1982, three days before hearing, Mr. Johnson leased the Johnson's Corner Grocery property to petitioner for $675.00 per month for three years. The handwritten lease, which was not signed in the presence of two subscribing witnesses, states that Mr. Johnson will not be "responsible for . . . the operations of . . . [the] business." This assertion is rejected as unworthy of belief in light of his extensive involvement in purchasing and setting up the business, and his continuing access to its funds. (P-1)
The Issue The issue presented here concerns the entitlement of the Petitioner to be granted a new Series 2-COP beverage license from the Respondent.
Findings Of Fact The Petitioner, Dorothy Risby, filed an application to be issued a new Series 2-COP alcoholic beverage license. The application was filed on January 28, 1980, and if the license were issued, it would allow for the sale of beer and wine to be consumed at the Petitioner's premises known as the V I P Night Club, located at 922 East Brownlee Street, Starke, Florida. After the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco, had received and reviewed the application, it was denied. The basis of the denial was, quoting from the license application denial, "undisclosed interest" and reference was made to Section 561.17, Florida Statutes, as the authority for such denial. Specifically, the Respondent is persuaded that Albert Parrish has an "undisclosed interest" in the prospective licensed premises and that in view of this interest the Petitioner is not entitled to receive the beverage license. Albert Parrish was the former holder of an alcoholic beverage license issued by the Respondent, and the licensed premises to which the license pertained was the same premises as contemplated by the present Petitioner. Parrish did business at that location under the name Red Honey until his license was revoked on December 31, 1979. The current Petitioner has known Albert Parrish for a period of ten to twelve years and in the course of that time, Parrish has helped support the children of the Petitioner who presently live at home with her. This support spoken to is financial support. The Petitioner and Albert Parrish have also lived together in that period of time and as recently as February, 1980. The latter statement concerning the living arrangements between the Petitioner and Parrish was ascertained when Beverage Officer Robert W. Cunningham went to the licensed premises in making a pre-licensure inspection in February, 1980, and encountered Albert Parrish on the proposed licensed premises. Parrish indicated that he was just at the licensed premises sleeping following a break-in that had occurred at that location. At the same time he indicated that he was living at Apartment 51 on Brownlee Street, Starke, Florida, which is the residence address given by the Petitioner in her application for licensure. This also was the same residence address that Albert Parrish had put on his beverage license application when he had applied for the beverage license issued to him in the past. In the course of the meeting referred to above, Parrish stated that the utilities for the licensed premises were being paid for by him and that the phone in the licensed premises was primarily for the benefit of the ABC Junk Yard, a business operated by Parrish, which was located at that time behind the prospective licensed premises. The phone located at the licensed premises also rang at the Apartment 51 when calls were made in. At the time of Cunningham's conversation with Parrish, the rent for the licensed premises was being paid month to month and was paid at times by the Petitioner and at other times by Parrish. The most recent rent of August, 1980, was paid by the Petitioner. At the time of the hearing, the utilities for the licensed premises still remained in the name of Albert Parrish, although payment for those utilities was being made by the Petitioner. The telephone remained in the name of Albert Parrish because in the words of the Petitioner, it cost $200.00 to change over the phone from Parrish's name to the Petitioner's name and the Petitioner could not afford to make that change. In the interim, the Petitioner intends to pay for the telephone until such time as she cannot afford to pay and the service charges and at that time she would expect the telephone to be removed for nonpayment. At the time of the hearing, Albert Parrish was no longer in the junk yard business at the licensed premises and was not living with the Petitioner at the Apartment 51 due to the fact that the welfare officials had instructed the Petitioner that if Parrish lived there, the Petitioner could not receive help for her children. At present, the Petitioner does not know the exact residence address of Parrish nor of his future intentions regarding their relationship in which she had been his "girlfriend" in the past. Parrish still gives her $10.00 or $15.00 when he can afford it and when she asks him for the money. The Petitioner presently sells sandwiches and soft drinks at the licensed premises and has an occupational license from Bradford County, Florida, which allows her to do this. This license is in her sole name. Albert Parrish is not involved in the daily operation of this business. It is the intention of the Petitioner to expand the base of her operations to include the sales of alcoholic beverages. In taking over the licensed premises, she intends to continue to pay the month-to-month rent due at the licensed premises. In pursuit of the expansion of her business, Parrish gave the Petitioner certain tables and chairs in the licensed premises to use for her purposes. Parrish was not paid any amount of money for his good will or inventory and no inventory remained to be used by the current Petitioner. The Petitioner receives other income from the licensed premises in the form of a concessions for a "piccolo and pool tables". The average amount of income from those concessions being $65.00 for the piccolo and $80.00 for the pool table, on a weekly basis, of which one-half of the money is paid to the concessionaire of those items in lieu of rentals. Presently, the apartment rent of the Petitioner is paid primarily from funds received from the business, from money provided by the Petitioner's elder sons, and from welfare payments to the Petitioner.
Recommendation It is RECOMMENDED that the Petitioner, Dorothy Risby's application for a new Series 2-COP alcoholic beverage license be DENIED. DONE AND ENTERED this 4th day of September, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1980. COPIES FURNISHED: Dorothy Risby 922 East Brownlee Street Starke, Florida 32091 William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues in this case are as set forth in the attached copy of the Notice to Show Cause and by its attachment this copy becomes a part of the Recommended Order. This Notice to Show Cause in its various counts raises the question of whether the action of the Respondent which took place on March 21, 1978, through its "bar spending" practice (i.e., the practice of a representative of manufacturer or a wholesaler purchasing drinks for consumers at the premises of a retail licensee) has violated the provisions of Subsection 561.42(1), Florida Statutes.
Findings Of Fact By agreement and stipulation the parties, in the person of their counsel, have offered a Statement of Facts. This Statement of Facts is accepted by the Hearing Officer to be the evidential fact determination from which the outcome of the matters here in dispute will be concluded. To that end the Statement of Facts is attached to this Recommended Order and made a part of the Recommended Order. This stipulation of the Statement of Facts appears as it was offered at the time of the formal hearing conducted on May 22, 1979. The Respondent, as a brewer of malt beverages licensed under the laws of Florida, has been charged with the giving of financial aid and assistance to a number of vendors licensed by the State of Florida. There are sixteen licensed vendors named in the allegation in eighteen separate counts. This activity on the part of the Respondent has purportedly violated the conditions of Section 561.42, Florida Statutes (1977), which contains the following language: Section 561.42 Tied house evil; financial aid and assistance to vendor by manufacturer or distributor prohibited; procedure for enforcement; exception.-- No licensed manufacturer or distributor of any of the beverages herein referred to shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the Beverage Law, nor shall such licensed manufacturer or distributor assist any vendor by any gifts or loans of money or property of any description or by the giving of any rebates of any kind whatsoever. No licensed vendor shall accept, directly or indirectly, any gift or loan of money or property of any description or any rebates from any such licensed manufacturer or distributor; provided, however, that this shall not apply to any bottles, barrels, or other containers necessary for the legitimate transportation of such beverages, or advertising materials, and shall not apply to the extension of credit, for liquors sold, made strictly in compliance with the provisions of this section. This particular provision of law has application to the malt beverage business through the finding of the Florida Supreme Court in Castlewood International Corp. vs. Wynne, 294 So.2d 321 (Fla. 1974). The specific portions of Subsection 561.42(1), Florida Statutes (1977), which are at issue in this cause, are those provisions dealing with the meaning of the words "gifts" and "rebates" found in the subject Subsection. (The parties, in the course of their argument, conceded that the portion of that Subsection dealing with loans of money or property is not to be regarded.) In determining the meaning of the words "rebates" and "gifts", as set forth in Subsection 561.42(1), Florida Statutes (1977), the Petitioner has promulgated rules in the Florida Administrative Code which define those terms. The recitation of those roles is as follows: 7A-1.09 Rebate. The term 'rebate' (often referred to as accumulative promotion or retroactive discount) shall include any refund or discount made or allowed other than such discounts as are permitted under Section 561.42, Florida Statutes; and as such they are prohibited. 7A-1.10 'Gift'. The term `gift' shall apply to the giving of free goods or things of value as a discount not otherwise permitted by law or reward for purchasing any given quantity of alcoholic beverages whether at one time or over a period of time; and as such they are prohibited. A close reading of the role definition of "rebate", establishes that rebates as considered in cases interpreting the meaning of the beverage laws in the State of Florida; rebates which constitute accumulative promotion or retroactive discounts; and refunds or discounts made or allowed other than such discounts permitted under Section 561.42, Florida Statutes, are prohibited by Subsection 561.42(1), Florida Statutes, as implemented by the definitional statement found in Rule 7A-1.09, Florida Administrative Code. This definition found in the rule establishes the parameters for prosecuting claims against this Respondent. Likewise, the definition found in Rule 7A-1.10, Florida Administrative Code, dealing with the term "gifts" sets the limits beyond which Petitioner may not venture in its efforts to penalize the Respondent for alleged violations of Subsection 561.42(1), Florida Statutes (1977) premised on the theory that the licensee has given a vendor a gift. "Gift" within the meaning of the rule is constituted as the giving of free goods; the giving of things of value as a discount not otherwise permitted by law; or the giving of a reward for purchasing any given quantity of alcoholic beverages either at one time or over a period of time. In examining the numerous possibilities for establishing a "rebate" or "gift", the most reasonable beginning is to establish those discounts which are allowed. The reference in the rule defining "rebate" describes this form of discount as a discount permitted by Section 561.42, Florida Statutes. In particular, Subsection 561.42(6), Florida Statutes (1977), provides: (6) Nothing herein shall be taken to forbid the giving of trade discounts in the usual course of business upon wine and liquor sales. Therefore, any discount given in the usual course of business is allowed. Moreover, in view of the construction of the grammar in Rule 7A-1.09, Florida Administrative Code, dealing with "rebates", any refund given in the ordinary course of business will be allowed. Turning to that element of the definition of "gifts" found in Rule 7A-1.10, Florida Administrative Code, which establishes that discounts net otherwise permitted by law are prohibited, when that language is considered in view of the statement of Subsection 561.42(6), Florida Statutes (1977), it demonstrates that trade discounts in the usual course of business are not gifts. A discount in the usual course of business is defined in Subsection 561.01(10), Florida Statutes (1977), which states: 'Discount in the usual course of business means a cash discount given simultaneously at the time of sale. The same discounts shall be offered to all vendors buying similar quantities. Any discount which is in violation of this section shall be considered an arrangement for financial assistance by gift. The next point in the inquiry is whether the activities in the case sub judice, constitute the giving of a discount in the usual course of business from the manufacturer to vendors. Obviously, the answer is no. Whatever final characterization should be given the activities, they were not cash discounts given simultaneously at the time of a sale between the manufacturer and vendors in the sixteen establishments. Consequently, the conflict must be resolved by the systematic analysis of the remaining terms and phrases found in the definitions set out in Rules 7A-1.09 and 7A-1.10, Florida Administrative Code. The first of these terms and phrases to be examined is the term "rebate". This terminology involves a consideration of the meaning of the term "rebate" in its common meaning and the term "rebate" as specifically defined in the subject rule, as being an accumulative promotion or retroactive discount. The Petitioner in its Proposed Recommended Order advances the economic theory that a vendor may not assume that his products will be sold within a given period or at a given price. Under this theory, the Respondent's purchase of the beer at retail prices reduced the vendor's cost of acquisition giving him a so-called automatic and predictable profit, thereby effecting a "rebate" of the vendor's purchase price by increasing cash flow and giving a guaranteed profit to the vendor. This theory in the mind of the Petitioner is supported by the fact that when free beer was given to customers of a vendor, the reasonable implication is that the vendor would give away more products during the free beer party time sequences then he would normally sell during the free beer party time sequence. That hypothetical may be true; however, the facts stipulated to in the course of this hearing do not establish that more beer was consumed on the premises because it was given away than would have been the case if the patrons had to pay the retail price, and no official notice or recognition can be taken of that proposal. To establish the desired facts, the Petitioner would need to have proved these facts or gained a stipulation from the Respondents to that effect. Having failed to establish the increased volume theory, the Petitioner is unable to demonstrate increased profits due to increased volume, ergo there is no "rebate" or retroactive discount that has been shown by the Petitioner in its proof. Moreover, the ordinary meaning of the word "rebate" does net lend itself to the establishment of a "rebate" by the evidential facts adduced in this hearing. (See Black's Law Dictionary, Revised Fourth Edition's definition of the term "rebate".) Again, looking at the definition of "rebate" in the subject role dealing with the terms "refund" or "discount", there is no showing that the Respondent was repaying, making restoration or returning money to the vendors as a form of restitution or repayment when it purchased the alcoholic beverages for the benefit of the patrons of the vendor, (see Black's Law Dictionary, Revised Fourth Edition's definition of the term "refund", and it has already been concluded that the payment from the manufacturer to the vendor was not a retroactive discount. There is no showing that the vendors paid any less than usual when they purchased the products which were subsequently given away to the general public and paid for by the Respondent at the usual prices. The Petitioner has also failed to prove that the "bar spending" constituted a "gift" within the meaning of Rule 7A-1.10, Florida Administrative Code. The free goods that were given were goods given to the general public and, absent a showing that the volume of sales would have been increased due to Respondent's purchase of the alcoholic beverages, it cannot be shown that the vendors were extended free goods. (The discount theory offered under the definition of "gift" has been discussed in examining the meaning of the word "rebate", and no further reference is necessary.) Additionally, it has not been shown that any form of reward was extended to the vendors for purchasing given quantities of alcoholic beverages either upon a single event or over a period of time, because the proof is insufficient to demonstrate that any greater volume of alcoholic beverage was sold under the "bar spending" arrangement, than would have bean sold ordinarily and having failed to make that showing, it cannot be successfully argued that the vendors reaped the rewards of extra profits from the activities which transpired in their licensed premises, either as direct profits on sales or tips for its employees. Finally, the Petitioner's assertion that the mere act of having the promotional staff of the Respondent put on the bar party constituted a "gift" or reward is not convincing for reason that the proof does not indicate that particular benefit. In summary, Petitioner has failed to prove that the activities constituted "rebates" or "gifts" within the meaning of Subsection 561.42, Florida Statutes (1977), and although the Petitioner may be philosophically opposed to the arrangement which this Respondent had with the several vendors to promote "bar spending" in the licensed premises of the vendors, to reach that result it would be necessary to strain the construction of Subsection 561.42(1), Florida Statutes (1977), and its attendant Rules 7A-1.09 and 7A-1.10, Florida Administrative Code, beyond allowable bounds. The parties have availed themselves of the opportunity to submit Proposed Findings of Fact, Conclusions of Law and Recommendations and to the extent that these proposals are consistent with this Recommended Order they have been considered and utilized; to the extent that they are inconsistent with this Recommended Order, they are, after consideration, specifically rejected.
Conclusions Respondent is ordered to pay a civil penalty in an amount equal to the actual consideration paid the 16 vendors and 18 counts on the Notice to Show Cause, attached hereto and incorporated herein as Exhibit "B". Where tips were paid, 15 percent of the actual consideration paid to the particular vendor is assessed as a penalty. DONE and ORDERED this * day of September, 1979, in Tallahassee. CHARLES A. NUZUM, DIRECTOR Division of Alcoholic Beverage and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 (904) 488-7891 * NOTE: The Final Order filed with DOAH has an unreadable issue date; the 30th has been used for the ACCESS Index.
Recommendation It is recommended that the allegations in this cause be DISMISSED. DONE AND ORDERED this 15th day of June, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Dennis LaRosa, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 T. Michael Carpenter, Esquire Associate General Counsel and Donald S. McDonald, Esquire, General Counsel Anheuser-Busch, Inc. 721 Testalozzi Street St. Louis, MO 63118 Paine Kelly, Jr., Esquire Macfarlane, Ferguson, Allison & Kelly Post Office Hex 1531 Tampa, Florida 33601 Attachment 1 STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF BEVERAGE TALLAHASSEE, FLORIDA NOTICE TO SHOW CAUSE - NOTICE OF INFORMAL CONFERENCE NOTICE TO SHOW CAUSE WHY YOUR DIVISION OF BEVERAGE LICENSE/CIGARETTE PERMIT SHOULD NOT HAVE A CIVIL PENALTY ASSESSED AGAINST IT OR BE SUSPENDED OR REVOKED. LICENSE OR PERMIT NUMBER 26-1312 YOU ANHEUSER-BUSCH, INC. TRADING AS ANHEUSER-BUSCH, INC. LOCATED 111 Busch Drive, Jacksonville Florida are hereby notified by the Director of the Division of Beverage, Department of Business Regulation, State of Florida, that he has been presented certain evidence which, if true, is good and sufficient cause for him, pursuant to Section 561.29/210.16, Florida Statutes, to assess a civil penalty against or to suspend or revoke your Division of Beverage license/permit, license/permit number 26-1312 issued to you by the State of Florida under the laws of Florida for the current license year, or any renewal thereof, over which the Division of Beverage has jurisdiction said cause being for any one of the following: On or about the 21st day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; SUDER-GOODRICH, INC., DBA MAC'S BAR, Licence number 74-452, located at 2000 S. Atlantic Avenue, Daytona Beach Shores, Volusia County, FL, by the giving of a gift, loan of money or property or by the giving of a rebate, to wit; check, check number 2, in the amount of $361.00, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT, and endorsed by SUDER GOODRICH, INC. MAC'S BAR, contrary to F.S. 561.42 (1). On or about the 21st day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employe, to wit; JACK FORST, did assist financially, a retail vendor, to wit; GREGORY L. CALDWELL, DBA THE PUB, License number 74-837, located at 3304 S. Atlantic Avenue, Daytona Beach Shores, Volusia County, FL, by the giving of a gift, loan of money or property or by the giving of a rebate, to wit; a check, check number 4, in the amount of $210.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by THE PUB, contrary to F.S. 561.42(1). On or about the 21st day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did assist financially, a retail vendor, to wit; 427 N. ATLANTIC AVE., INC., DBA BIG MOTHERS, License number 74-210, located at 525 N. Atlantic Avenue, Daytona Beach, Volusia County, Florida, by the giving of a gift, loan of money or property or by the giving of a rebate, to wit; a check, check number 1, in amount of $440.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by BIG MOTHERS DISCO, 427 N. ATLANTIC., INC., contrary to F.S. 561.42(1). On or about the 21st day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did assist financially, a retail vendor, to wit; 427 N. ATLANTIC AVE., INC., DBA BIG MOTHERS, License number 74-210, located at 525 N. Atlantic Avenue, Daytona Beach, Volusia County, Florida, by the giving of a gift, loan of money or property or by the giving of a rebate, to wit; a check, check number 2, in the amount of $150.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by BIG MOTHERS DISCO, 427 N. ATLANTIC, INC., contrary to F.S. 561.42 (1). On or about the 21st day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did assist financially, a retail vendor, to wit; ANN L. METZ, DBA. ENTER METZO #1, License number 74-205, located at 3278 S. Atlantic Avenue, Daytona Beach Shores, Florida, Volusia County, by the giving of a rebate, to wit; a check, check number 3, in the amount of $310.00, dated March 21, 1978, drawn on the account of ANHEUSER BUSCH DISBURSEMENT ACCOUNT and endorsed by ENTER-METZ-O, contrary to F.S. 561.42(1). On or about the 22nd day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING did financially assist a retail vendor, to wit; JEANE B. HALL, DBA, PIT STOP ARCADE, License number 74-722, located a 1114 Main Street, Daytona Beach, Volusia County, Florida, by the giving of a rebate, to wit; a check, check number 3, in the amount of $750.00, dated March 22, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by PIT STOP ARCADE, J. HALL, contrary to F.S. 561.42 (1). On or about the 22nd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; F.B. & L., INC., DBA, SHARK LOUNGE, License number 74-372, located at 730 Broadway Avenue, Daytona Beach, Volusia County, Florida, by the giving of a rebate, to wit; a check, check number 7, in the amount of $280.00, dated March 22, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by SHARK LOUNGE & PACKAGE, contrary to F.S. 561.42(1). On or about the 22nd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; BOOT HILL, INC., DBA BOOT HILL SALOON, License number 74-5, located at 310 Main Street, Daytona Beach, Volusia County, Florida, by the giving of a rebate, to wit; a check, check number 5, in the amount of $356.00, dated March 22, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT, and endorsed by BOOT HILL, INC., contrary to F.S. 561.42(1). On or about the 22nd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; OLIVER A. BELL, DBA CARNIVAL MOTOR INN, by the giving of gifts, loans or money or property or by the giving of a rebate, to wit; a check, check number 5, dated March 22, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by CARNIVAL MOTOR INN BAR, MANAGERS ACCOUNT, FRIDAY'S NIGHT CLUB contrary to F.S. 561.42(1). On or about the 23rd day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; DOUGLAS SILVER, DBA BLACKBEARD'S TAVERN, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check, check number 13, in the amount of $276.00, dated March 23, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by BLACK BEARD'S TAVERN, SILVER, contrary to F.S. 561.42(1). On or about the 23rd day of March, 1978, you ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; GRADY SCOTT HENSLEY, DBA, THE ELBOW ROOM, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check, check number 6, in the amount of $200.00, dated March 23, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and signed by SCOTT HENSLEY, contrary to F.S. 561.42(1). On or about the 23rd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; CONSOLIDATED INN OF DAYTONA BEACH, INC., DBA HOLIDAY INN SURFSIDE, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check, check number 5, in the amount of $900.00, dated March 23, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by CONSOLIDATED INNS OF DAYTONA BEACH, INC., DBA HOLIDAY INN SURFSIDE, contrary to F.S. 561.42(1). On or about the 23rd day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; SAM L. BERRY, DBA BROADWAY SAM'S, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check - three checks totaling $640.00, contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; P.J.'S OF DAYTONA, INC., DBA, P.J.'S, License number 74-473, located at 400 Broadway Avenue Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property or by the giving of rebate, to wit; a check, check number 9, in the amount of $240.00 dated March 24 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT, contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did financially assist a retail vendor, to wit; PINK PUSSY CAT, INC., DBA, RED GARTER CLUB, License number 74-356, located at 1001 Main Street, Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property or by the giving of a rebate, to wit; a check, check number 14, in the amount of $270.00, dated March 24, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by RED GARTER, PINK PUSSY CAT, INC., contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did assist a retail vendor financially, to wit; McMILLIAN AND WRIGHT, INC., DBA, THE OCEAN PIER, License number 74-771, located at Main Street Over the Ocean, Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property or by the giving of rebates, to wit; a check, check number 5, in the amount of $850.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by McMILLIAN & WRIGHT, INC., OPERATING OCEAN PIER CASINO, contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; JACK FORST, did assist financially a retail vendor, to wit; McMILLIAN and WRIGHT, INC., DBA, THE OCEAN PIER, License number 74-771, located at Main Street Over The Ocean, Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property or by the giving of rebates, to wit; a check, check number 6, in the amount of $150.00, dated March 21, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by McMILLIAN & WRIGHT, INC., OPERATING OCEAN PIER CASINO, contrary to F.S. 561.42(1). On or about the 24th day of March, 1978, you, ANHEUSER-BUSCH, INC., a licensed manufacturer or distributor and/or your agent, servant or employee, to wit; MIKE FEHLING, did financially assist a retail vendor, to wit; DAYTONA SAFARI MOTEL, INC., DBA, THE WRECK, License number 74-546, located at 7 S. Wild Olive, Daytona Beach, Volusia County, Florida, by the giving of gifts, loans of money or property of by the giving of rebates, to wit; a check, check number 8, in the amount of $420.00, dated March 24, 1978, drawn on the account of ANHEUSER-BUSCH DISBURSEMENT ACCOUNT and endorsed by WRECK BAR, RINGO, contrary to F.S. 561.42(1). Attachment 2
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Mehreen Enterprises, Inc., held license number 23-21339, Series 2APS, authorizing it to sell alcoholic beverages on the premises of a business known as Super Stop Food Store #2, located at 9260 Hammocks Boulevard, Miami, Dade County, Florida (hereinafter "the licensed premises"). Syed Abdul Qadir (Qadir) was, and is, a shareholder of the Respondent corporation, and the manager of the licenses premises.1 On March 1, 1997, at or about 8:00 p.m., Richard Stangl (Richard), date of birth December 7, 1976, and 20 years of age at the time, entered the licensed premises, retrieved a 32 ounce bottle of Red Dog beer from a vertical cooler, and proceeded to the counter where he paid Qadir for the beer and left the premises. At the time, Qadir did not request to see any identification as proof of legal age, nor did he ask Richard his age. As Richard drove away from the store he was intercepted by the police, who were engaged in an investigation of the premises. Confirming Richard's age and the possession of an alcoholic beverage,2 Richard was returned to the licensed premises where he and Qadir were placed under arrest.3 Respondent does not dispute that the foregoing events occurred. Rather, it contends that it took reasonable precautions to avoid serving an underaged person and should not, therefore, be penalized for the subject sale. Given the proof, Respondent's contention has merit. While Richard was less than 21 years of age at the time, the proof demonstrated that his appearance was such that an ordinary prudent person would believe he was of legal age to purchase alcoholic beverages.4 The proof further demonstrates that Richard frequented the licensed premises on a regular basis over a three month period, and that he routinely purchased (approximately 30 times) alcoholic beverages during that period. Initially Qadir inquired as to his age, which Richard stated to be 21, and requested identification, which Richard presented in the form of a driver's license consistent with that age. Qadir continued to request identification for a time but, as Richard appeared regularly at the store, and began to complain, he ceased requesting identification. Given the repeated assurances by word and identification card that Qadir had received regarding Richard's apparent age, Qadir's failure to continue to request identification was not unreasonable.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Action. DONE AND ENTERED this 18th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1997.
Findings Of Fact Respondent Mary L. Alexander holds beverage license No. 28-0041, Series 2-COP. Under this license she sells beer and wine at Whisper's Cafe, a business which she has owned and operated for approximately two years in Bunnell, Florida. (Testimony of respondent) Respondent employs a cook and a part-time bartender, who also serves as a disc jockey. The cook works primarily in the kitchen. At around 8:30 P.M., the bartender begins operating the juke box and remains in the dance area of the licensed premises, an area separated by a wall from the rest of the premises. Respondent (or a substitute bartender), works primarily in the bar and pool table area, which is located between the dining and dance areas of the premises. (Testimony of respondent) The evidence establishes, without contradiction, that two of respondent's bartenders committed three separate drug violations on the premises during April and May, 1982. Two violations involved bartender Ronney Locke, one involved bartender Fred Austin. I. Two Drug Violations by Bartender Locke On April 30, 1982, Maria Scruggs, a DABT Beverage Officer, entered Whisper's Cafe in an undercover capacity. Approximately twenty customers were on the premises--four or five were standing at the bar. Officer Scruggs ordered a drink at the bar. Several minutes later, Thomas Alexander, respondent's son, approached her and a conversation ensued. She asked him if he had any marijuana she could buy. He replied that he did not, and then referred the question to bartender Ronney Locke. Mr. Locke, offering to check around the bar, approached Clarence Lorick, a customer, who then delivered a small quantity of marijuana to Mr. Alexander for $5.00. Mr. Alexander, seated at the bar, rolled a marijuana (cannabis) cigarette in his lap and gave it to Officer Scruggs, who then left the premises. The cigarette was rolled in an open manner and in plain view of others on the premises. Respondent was not on the premises during this transaction and was unaware of its occurrence. (Testimony of Scruggs, respondent, P-1) On May 7, 1982, Officer Scruggs reentered the licensed premises in an undercover capacity. She began to talk, separately, with respondent and bartender Locke. She asked Mr. Locke if any cocaine or marijuana was available. He replied that he would check with the other customers for a $5.00 bag of marijuana. He approached Ginnie Lee Caskins a customer, Who then approached Officer Scruggs and handed her a manilla envelope containing marijuana (cannabis). Officer Scruggs said nothing and handed her $5.00. This exchange of money and marijuana took place under the bar and out of view of the other customers on the premises. Although respondent was on the premises, she was not close by and did not see the exchange or overhear the conversation. (Testimony of respondent, Scruggs, P-2) II. Drug Violation by Bartender Austin On May 12, 1982, Alphonso Junious, another DABT Beverage Officer, entered the licensed premises in an undercover capacity. He asked bartender Fred Austin, an employee of respondent, if he knew where he could buy some marijuana. Mr. Austin walked to the door and summoned Clarence Lorick, who then entered the premises. After a brief conversation, Mr. Lorick handed a small quantity of marijuana (cannabis) to Officer Junious, who, in turn, handed him $5.00. This exchange took place in a secretive manner and occurred after respondent had left the premises. She was also unaware of this drug transaction. (Testimony of Junious, respondent, P-3) III. Drug Violation by Respondent DABT also contends that on May 14, 1982, respondent unlawfully aided, counseled, or procured the sale or delivery of marijuana (cannabis) to Officer Junious. Respondent denies it. The evidence, although conflicting, substantiates DABT's contention. On May 14, 1982, Officer Junious reentered the licensed premises in an undercover capacity. He purchased a beer from respondent, who was tending bar. While seated at the bar, he overheard respondent tell an unidentified female patron that she (respondent) had been to a musical concert and had to leave to get something to smoke. Officer Junious, construing this to mean marijuana, said to her, "I could use something to smoke too," or words to that effect. Respondent replied, "Boot got some." (Testimony of Junious) Officer Junious knew who "Boot" (Henry Brown) was, having previously purchased marijuana from him in an undercover capacity. Officer Junious then left the premises, found "Boot" outside, and purchased a small quantity of marijuana (cannabis) from him for $5.00. (Testimony of Junious) These findings are based on the testimony of Officer Junious. Respondent denies that she said "Boot got some" or that she had any conversation with Officer Junious on May 14, 1982. She also denies that she said she could use something to smoke, and states that she does not smoke either tobacco or marijuana. Taking into account her bias and interest in the outcome of this proceeding, the testimony of Officer Junious is more credible and is accepted as persuasive. IV. Respondent's Supervision of the Premises Respondent, periodically, reminded her employees that no marijuana was allowed on the premises. She took no other action to ensure that drug violations would not occur on the premises. (Testimony of respondent On May 27, 1982, arrest warrants were executed by DABT and the licensed premises was searched. No illicit drugs were found on the premises. (Testimony of Scruggs) There is no evidence that marijuana has ever been smoked in the licensed premises. Neither does the evidence support a finding that respondent knew that marijuana had been, or was being, sold or delivered on the premises. The four separate drug violations committed on the licensed premises, and the manner in which they were committed, however, support a conclusion that these violations of law were fostered, condoned, or negligently overlooked by respondent, and they occurred, at least in part, due to respondent's failure to diligently supervise her employees.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be suspended for a period of 90 days. DONE and ORDERED this 10th day of December,1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1982.
The Issue The issues are: (1) whether Respondent violated Section 562.02, Florida Statutes (2007),1 by unlawfully possessing certain alcoholic beverages on its licensed premises which were not authorized to be sold under its license; (2) whether Respondent violated Subsection 561.14(3), Florida Statutes, by purchasing or acquiring alcoholic beverages for the purpose of resale from persons not licensed as distributors; and (3) if so, what penalty or administrative fine should be imposed.
Findings Of Fact Respondent is, and was at all times relevant hereto, the holder of alcoholic beverage License No. 62-10299, Series 2-COP, which permits the sale of beer and wine, but no other alcoholic beverages, for consumption on the premises. Petitioner seeks to impose sanctions on the license of Respondent. Mr. Pagini owned and operated Latin American Café, a restaurant located at 3780 Tampa Road, Oldsmar, Florida. The restaurant serves Latin American and South American foods and desserts, some of which contain alcoholic beverages in preparation of said food. At all times relevant to this proceeding, the menu for Latin American Café stated that only one type of liquor was used for cooking. Respondent was placed on the Division's "No Sale" list on August 21, 2007, for failure to renew its license. As a result of being on the "No Sale" list, distributors were prohibited from selling alcoholic beverages to Respondent. Nevertheless, as discussed below, a receipt dated August 23, 2007, shows that a distributor sold alcoholic beverages to Respondent. Due to Respondent's being placed on the "No Sale" list, Casey Simon, a special agent with the Division, conducted an inspection of Latin American Café on November 21, 2007. During the inspection, Agent Casey discovered beer and liquor on the premises. The beer was located in a cooler behind the bar at the front of the premises, and the liquor was located in the manager's office and in the kitchen cupboards. The liquor discovered on Respondent's premises on November 21, 2007, consisted of the following: (a) one, one-quart bottle of Mr. Boston Crème De Cassis; (b) one, 750-millimeter bottle of Cinzano Rosso Vermouth; (c) one, 750-millimeter bottle of Chevas Regal Whiskey; (d) one, 750-millimeter bottle of Sambuca Di Amare; (e) one, 1.75-liter bottle of Heritage Triple Sec; (f) one, 250-millimeter bottle of Chasqui Licor De Café; (g) one, 750-millimeter bottle of Truffles Liquor; (h) one, one-liter bottle of Sambroso Licor De Café; and (i) one, .75-liter bottle of Heritage Rum. Respondent contends that seven of the nine kinds of suspect liquor found on the premises were used for cooking, mostly desserts, at the business. The remaining two liquors found on the premises, Chevas Regal Whiskey and Sambuca, were for Mr. Pagani's personal use. The Chevas Regal Whiskey was a present that had been given to Mr. Pagini, and at the time of the inspection, the whiskey was in a box in his office. The Sambuca Di Amare is a "digestive" liquor made in Italy and was for Mr. Pagini's personal use. Although most of the liquor was found on Respondent's premises during the inspection, Respondent's menu does not list any of the suspect liquors as an ingredient in any of the menu items. The beer discovered on Respondent's premises on November 21, 2007, consisted of the following: (a) 41, 12-ounce bottles of Bud Light, with a born date of September 2007; (b) six, 12-ounce bottles of Budweiser; (c) 27, 12-ounce bottles of Miller Lite; (d) 12, 12-ounce bottles of Heineken; and (e) 19, 12-ounce bottles of Corona. The Bud Light's "born date" of September 2007, is the date in which the beer was manufactured. Thus, it can be reasonably concluded that beer with a "born date" of September 2007, cannot be purchased prior to that month. During the November 21, 2007, investigation, the Division's agent requested invoices for the beer found on the premises. Respondent produced a receipt from Sam's Club dated November 16, 2007, which reflected the sale of various items to a "member," identified, presumably, by a membership number. Among the items purchased were other documents provided to Agent Simon which showed that Latin American Café was the member on the November receipt. Next to the name of each kind of beer was the number "24" which, presumably, indicated the number of bottles of beer that were purchased. Mr. Pagini testified that many of the items purchased from Sam's Club on November 16, 2007, including the Bud Light and the Heineken, were for personal use. At this proceeding, Respondent introduced into evidence copies of two receipts which reflect that it purchased alcoholic beverages from two authorized distributors, J.J. Taylor Distributors Florida, Inc. ("J.J. Taylor Distributors") and Great Bay Distributors, Inc. ("Great Bay Distributors"). The receipts were dated August 9, 2007, and August 23, 2007, respectively. The receipt from J.J. Taylor Distributors dated August 9, 2007, reflects that Respondent purchased the following alcoholic beverages: (a) 24, 12-ounce bottles of Becks beer; (b) 24, 12-ounce bottles of Braham beer; (c) 24, 12-ounce bottles of Heineken beer; (d) 24, 12-ounce bottles of "Lite" beer; and (e) 24, 12-ounce bottles of Presidente. The receipt from Great Bay Distributors dated August 23, 2007, reflected the purchase of the following alcoholic beverages: (a) 24, 12-ounce bottles of Budweiser beer; (b) 24, 12-ounce bottles of Corona beer; (c) 24, 12-ounce bottles of Modesto Especial; and (d) 24, 12-ounce bottles of Negro Modesto. Despite Respondent's providing receipts from distributors, no plausible explanation was provided to establish when and from whom the Bud Light, discovered on Respondent's premises on November 21, 2007, was purchased. The receipts from the distributor were dated about one month prior to the Bud Light's born date of September 2007. The suspect Bud Light has a born date of September 2007, which is after the dates of the distributor receipts and after Respondent was placed on the "No Sale" list. No evidence was offered to establish where the suspect beer, Bud Light, was purchased or acquired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: (1) finding that Respondent, Latin American Café and Market, Inc., d/b/a Latin American Café, violated Section 562.02, Florida Statutes; (2) finding that Respondent did not violate Subsection 562.14(3), Florida Statutes; (3) imposing an administrative fine of $1,000.00 for the violation of Section 562.02, Florida Statutes; and requiring the fine to be paid within 30 days of the final order. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 31st day of March, 2009.
The Issue Should Petitioner discipline Respondent's Alcoholic Beverage License based upon Respondent's president selling, serving or giving an alcoholic beverage, on the licensed premises, to a person under the age of twenty-one contrary, to Section 562.11(1)(a), Florida Statutes?
Findings Of Fact Respondent, Rose Anne, Inc., d/b/a Scooters, holds license number 74-05039 SRX, Series 4COP issued by Petitioner for the premises located at 217 North Woodland Boulevard, Deland, Florida. Scott A. Price is the president and owner of that business. On October 22, 1997, Petitioner, through its agents, made random checks of businesses holding alcoholic beverage licenses issued by Petitioner. Those checks were made in Deland, Florida. In particular, the checks were designed to determine if businesses holding alcoholic beverage licenses were acting in compliance with the prohibition against selling, serving or giving alcoholic beverages on their licensed premises, to persons under the age of twenty-one, in violation of Section 562.11(1)(a), Florida Statutes. Respondent's premises was one of the licensed premises checked on that date. Petitioner's employees involved in the random checks included Special Agents Betty D. Adazzio, Melissa Winford and Kristin Hunt, operating with the assistance of Sergeant Steve Dovi of the Deland Police Department. The law enforcement personnel were supported in their activities by Ryan N. Luttrell, an under-aged person, who was used to determine if persons within the licensed premises under consideration would sell, serve or give Mr. Luttrell an alcoholic beverage in the licensed premises. Mr. Lutrell was born on November 23, 1978, as reflected on a Florida driver's license issued to him. That driver's license bore a picture of Mr. Luttrell which accurately depicted his appearance at the time. The license also indicated in bold print that Mr. Luttrell was under twenty-one years of age. In contact with Mr. Price, within Respondent's licensed premises, Mr. Luttrell used the license as a means of identification. Mr. Luttrell entered the licensed premises on the date in question. At that moment Mr. Price was tending the bar in the premises. Mr. Price brought Mr. Luttrell a menu and asked Mr. Luttrell if he wanted anything to drink. Mr.Luttrell told Mr. Price to give Mr. Luttrell a minute to decide. Mr. Luttrell then asked Mr. Price for a Bud Lite, an alcoholic beverage which is a beer. Mr. Luttrell also ordered cheese sticks. Mr. Price asked Mr. Luttrell for identification. Mr. Luttrell then produced the driver's license that has been described. Mr. Price briefly looked at the driver's license. Then Mr. Price took the driver's license to another area within the premises and held the license up by a chart. Mr. Price came back to where Mr. Luttrell was seated and asked what Mr. Luttrell would like. Mr. Luttrell repeated that he wanted a Bud Lite. Mr. Price filled a glass with beer and brought it back to Mr. Luttrell's location placing the glass of beer and a napkin in front of Mr. Luttrell. Mr. Price remarked that the cheese sticks would be right out. Mr. Luttrell asked Mr. Price where the bathroom was. Mr. Luttrell took the beer in the glass with him and took a sample of the beer and placed it in a vial. Mr. Luttrell went back to the bar area, and in further conversation with Mr. Price, Mr. Luttrell claimed that his pager had gone off, and used that excuse as a reason to exit the licensed premises. Once outside, Mr. Luttrell realized that he had not paid for the beer and Agent Adazzio sent Mr. Luttrell back into the premises to pay it. Mr. Luttrell re-entered the premises. Mr. Price was still behind the bar. Mr. Luttrell paid Mr. Price for the beer that Mr. Price had given Mr. Luttrell. Mr. Luttrell then again exited the licensed premises. At the time of the incident Respondent was not qualified as a Responsible Vendor pursuant to Section 561.705, Florida Statutes, and entitled to protections against suspension or revocation of its beverage license for the illegal sale of an alcoholic beverage to a person not of lawful drinking age, as envisioned by Section 561.706, Florida Statutes. Respondent's disciplinary history involves a violation of Section 561.501, Florida Statutes, for failure to timely file surcharge reports and to remit surcharges collected for periods in 1990. That case was resolved by entry into a Consent Agreement on December 17, 1990, in which Respondent acknowledged the violations and agreed to remit the sum of $250.00, as a civil penalty. This circumstance was in association with Respondent doing business as Scooters Coast To Coast at U.S. Highway #1, MM92.5, Tavernier, Monroe County, Florida, under license number 54-00658, Series 2COP.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: It is recommended that a final order be entered finding Respondent in violation of the aforementioned provisions and imposing a seven day suspension, together with a civil penalty of $1,000.00. DONE AND ENTERED this 12th day of August, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1998. COPIES FURNISHED: Susan C. Felker-Little, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Scott A. Price, President Rose Anne, Inc., d/b/a Scooters 102½ West Rich Avenue Deland, Florida 32720 Richard Boyd, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact Victor Ingargiola is the sole shareholder, director and officer of Petitioner, I & H Enterprises, Inc., d/b/a Basin Street East (Petitioner), a Florida corporation. The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is the Respondent. Both Mr. Victor Ingargiola and his wife, Mrs. Barbara Ingargiola, entered the Division's double random selection drawing for eligibility to apply for a new quota alcoholic beverage license. Mr. Ingargiola was selected in the drawing, and Mrs. Ingargiola was not. After receiving notice of his selection in the drawing, Mr. Ingargiola formed the Petitioner and applied for licensure on or about November 1, 1984. In his application, Mr. Ingargiola did not identify his wife as a person having an interest in Petitioner or its business, either directly or indirectly. The application also represented that Petitioner had a right to occupancy of the premises to be licensed at 4513 Causeway Boulevard, Tampa, Florida. Petitioner's application carries with it an application fee of $6,750. Mr. Ingargiola obtained a portion of the funds necessary to pay the application fee from funds held jointly by him and his wife and by loans to him and his wife secured by property jointly held by him and his wife. Virtually all money and property of the Ingargiolas is held in their joint names. Both Mr. and Mrs. Ingargiola conferred with the Division's Investigator Miller concerning the application. Miller initially requested that Mrs. Ingargiola be finger printed as a person having an interest in the license to be issued. Mrs. Ingargiola understood that she was not permitted to have an interest since she herself had entered the double random selection drawing. She therefore declined to be fingerprinted or to be made to appear on the application as a party having an interest in the license to be issued. Investigator Miller also discussed with the Ingargiolas the question of Mrs. Ingargiola's involvement and the financing of Petitioner. Investigator Miller led the Ingargiolas to believe that the only possible legal financing arrangement would be for Mrs. Ingargiola to give the funds to her husband outright. He led them to believe that this could be done by affidavit, and Mrs. Ingargiola signed and filed an affidavit which Investigator Miller approved as to form. The affidavit listed the financing in question and stated: "I swear that the following funds obtained are to be used by Victor A. Ingargiola and I will have no interest or control over these funds." Barbara Ingargiola also testified at final hearing that she claims no interest whatsoever in Petitioner, any license to be issued to it, or the funds she gave outright to her husband to finance Petitioner. Essentially, Mrs. Ingargiola gave her half of the joint funds and proceeds of joint loans used by Victor Ingargiola to finance Petitioner's application fee. If necessary, she was prepared to do the same with the proceeds from the sale of joint real property or loans secured by the Ingargiolas' joint real property. However, no mention was made or consideration given to Mrs. Ingargiola's liability for her husband's share of the joint borrowing in addition to hers. Mrs. Ingargiola did have an interest in the successful operation of Petitioner so as to enable her husband to pay at least half, if not all, of the joint borrowing used in part to finance Petitioner. On or about October 12, 1984, Mr. Ingargiola obtained a written lease to the premises to be licensed. However, the lease does not contain a commencement date. At the time the application was filed, the premises were occupied by another tenant, and, as of December 20, 1984, this tenant had a legal right to occupy the premises and had not been notified of the pending liquor license application or the lease. In addition, the purported lease contains a provision requiring Petitioner to secure its duties and obligations under the lease by depositing with the landlord the sum of $60,000 in cash or irrevocable letter of credit. There was no evidence that Petitioner had complied with or could comply with this requirement of the lease. Although Mr. Ingargiola testified to his understanding of his right to occupancy of the premises under the lease upon granting of Petitioner's application and issuance of the license, there was no testimony from the landlord on the ambiguities surrounding the lease and the rights of the tenant in possession. As a result, the evidence as a whole was insufficient to prove Petitioner's right to occupancy of the premises to be licensed.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, deny the application of Petitioner, I & H Enterprises, Inc., d/b/a Basin Street East, for a quota alcoholic beverage license RECOMMENDED this 17th day of March, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1986. COPIES FURNISHED: Joseph L. Diaz, Esquire 2522 W. Kennedy Blvd. Tampa, FL 33609 Thomas A. Klein, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301
Findings Of Fact At all times pertinent to the issues herein, alcoholic beverage license No. 26-01841, Series No. 2-APS, was issued to Respondents, Frank D. and Estella S. Ryers, for their establishment known as the Big B Restaurant, located at 5570 Avenue B, Jacksonville, Florida. A 2-APS license permits the package sale only of beer and wine. It does not permit the consumption on the premises of beer, wine, or liquor. On March 27, 1983, Investigator Wendell M. Reeves conducted an undercover operation directed against the Big B Restaurant predicated upon reports received by Petitioner that Respondents were conducting sales of alcoholic beverages not permitted by the license at the licensed premises. In furtherance of that operation, Reeves utilized another beverage agent, Van Young, in an undercover capacity to make a controlled buy of an improperly sold substance from the licensees. Prior to sending Young into the licensed premises, Reeves searched Young to ensure that he, Young, had no alcoholic beverage or money in his possession. Satisfying himself that that was the case, he gave Young $15 in U.S. currency and sent him into the licensed premises to make the buy. Young entered the Big B Restaurant at 1:00 p.m. and came out 17 minutes later. When he came out of the licensed premises, Young came over to where Reeves was waiting and turned over to him a sealed 200 ml bottle of Fleishman's Gin. Young told Reeves that he had purchased the gin in the licensed premises from a black male whose description matched that of Respondent Frank D. Byers which is contained on Respondent's application for license. Respondent Frank Byers denies making the sale. On balance, however, there is little doubt it was Respondent who made the sale, especially in light of the fact that this same licensee was issued a letter of warning by the Division of Alcoholic Beverages and Tobacco in October 1981 for possession on the premises of an alcoholic beverage not permitted to be sold under the license. Young also stated that he purchased a second bottle which he consumed on the premises with another black male. However, this evidence was in the form of Reeves' report of what was told him by Young. As such, it is clearly hearsay and can be used only to corroborate or explain other admissible evidence. Therefore, as to the allegation regarding the consumption of the gin on the premises, since it is the only evidence of that offense, it cannot be used to support a finding of fact on that allegation. It may, however, be used to explain how Young got the bottle with which he was seen by Reeves to come out of the licensed premises. Several days later, on March 30, 1983, Reeves again entered the licensed premises, where he told Respondent Estella Byers he was there to inspect the site. She opened the cooler for him and he inspected the beer inside and the cigarettes. While he was doing that, however, he noticed her take a cloth towel and drape it over something behind the bar. He went over to it, removed the towel, and found that it covered a bottle of Schenley's gin. Mrs. Byers immediately said she thought it was her husband's, Respondent Frank Byers, but another individual present at the time, Sharon Thomas, said she had taken it from her brother, who was drunk, and had put it there. Again, as to Ms. Thomas' comments, they, too, are hearsay and can only serve here to explain or corroborate other admissible evidence. In any case, after Ms. Thomas made her comment, she was immediately contradicted by Respondent Estella Byers, who again indicated she thought the bottle was her husband's. In any case, at the hearing, Respondent Estella Byers contended she did not know it was there. On balance, Mr. Reeves' testimony that she covered it with a towel while he was inspecting and the evidence of the prior warning for an identical offense tend to indicate she did know it was there and that it was unlawful for it to be there. There is, however, no evidence to establish sufficiently the reason for its being there.
The Issue Whether or not on or about the 19th day of August, 1975, the Respondent, Leartis Frazier, his agent, servant or employee, one Robert Henry Williams did unlawfully sell an alcoholic beverage, to wit: one 16 ounce can of Budweiser beer, in a manner not permitted by the Respondent's beverage license, to wit: while the license was suspended, contrary to Section 562.12, Florida Statutes.
Findings Of Fact On August 19, 1975, the beverage license which the Respondent, Leartis Frazier, held with the State of Florida, Division of Beverage was on active suspension. The notice of suspension had been served on Leartis Frazier at Frazier's Grocery, 2273 Commonwealth Avenue, Jacksonville, Florida. Furthermore, a sign had been posted at that address which indicated that the license of Leartis Frazier t/a Frazier's Grocery was suspended. On August 19, 1975, while the license was under suspension an officer of the Jacksonville Sheriff's Office observed one David Brooks enter Frazier's Grocery, without any objects in his hands. This observation occurred after the officer had encountered Brooks moments before in the conduct of an investigation and Brooks had not been carrying any objects in his hands at that moment either. Several minutes after entering the Frazier's, the same David Brooks exited Frazier's Grocery with a paper bag in his hands which contained one 16 ounce can of Budweiser beer. The Officer then entered the licensed premises and went to the beer counter and opened it up and discovered one can of beer missing from a six-pack container of Budweiser beer. At the time the officer made this investigation the sign which had been placed in the window of Frazier's Grocery to indicate the license suspension was being displayed. A Mr. Williams was sitting behind the counter inside the licensed premises as an employee, agent or servant of the Respondent at the time the officer of the Jacksonville Sheriff's Office discovered the missing can of beer. Mr. Brooks, when questioned about where he had bought the can of beer, after discussion, indicated that he had bought it at Frazier's Grocery. By Mr. Brooks' statement and the officer's observation, it is established that Mr. Williams sold the Budweiser beer to Brooks. The Mr. Williams was identified in the hearing, as being Robert Henry Williams.
Recommendation It is recommended that the license of the Respondent, Leartis Frazier, be suspended for a period of one year for the violation as established in the hearing on this Notice to Show Cause. DONE and ENTERED this 14th day of September, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Leartis Frazier 2273 Commonwealth Avenue Jacksonville, Florida 32209 Charles F. Tunnicliff, Esquire Division of Beverage The Johns Building 725 Bronough Street Tallahassee, Florida 32304
