Findings Of Fact In late 1960, Petitioner robbed a private home and was convicted of a felony with regard to said robbery in 1961, in the State of Florida. Petitioner entered prison pursuant to said conviction during July, 1961. He was paroled in April, 1966. Soon thereafter he was arrested and again charged with robbery, whereupon his parole was revoked and he was again sent to prison in late 1966. Petitioner was found guilty of a felony in August, 1966, with regard to the second robbery, but this conviction has since been vacated. Petitioner was finally released from prison on March 7, 1972. Since his release from prison on March 7, 1972, Petitioner, according to the evidence presented, has not been involved in the violation of any laws other than minor traffic violations. By Executive Order dated December 17, 1975, Petitioner was restored his civil rights by the Governor and the Cabinet of the State of Florida Petitioner testified that the only trade in which he had any substantial experience or training was that of bartender. Since his release from prison in 1972, Petitioner has been employed as a bartender, with the knowledge of the Division of Beverage. This employment terminated upon the determination that Petitioner, as a convicted felon, was not entitled to such employment. Petitioner is presently employed as a maintenance man and janitor for a bar. An employer of Petitioner's since his release from prison, Bernhart Goldlust, a bar owner, testified that he thought Petitioner extremely trustworthy and would be happy to employ him as a bartender.
The Issue Whether the Respondents' alcoholic beverage and tobacco license/permit number 74-00388 is subject to the assessment of a civil penalty, or should be suspended or revoked because of the sale of an alcoholic beverage to a person under the age of twenty-one years?
Findings Of Fact At all times relevant to this proceeding, the Respondents have been the holders of alcoholic beverage license/permit number 74-00388, series 2-COP, for the premises located at 4020 B Nova Road, Port Orange, Florida. At all times relevant to this proceeding, the Respondents were doing business as the Cheese and Specialty Corner (hereinafter referred to as the "Corner"). John T. Grothe is a full-time electrical engineer employed by General Electric. Mr. Grothe helped Oki Grothe, his wife, operate the business after working hours at General Electric and on his days off. Mrs. Grothe was primarily responsible for running the Corner. The Respondents had a policy of not selling alcoholic beverages to anyone under the legal drinking age. On September 4, 1987, Mr. Grothe was working at the Corner. Mr. Grothe was behind the counter near the front of the Corner. Detective Patrick Girvan entered the Corner on September 4, 1987. Detective Girvan was a Port Orange, Florida, police detective at the time but was not wearing his uniform. Shortly after Detective Girvan entered the Corner, Officer Heather Waskiewicz entered the Corner. Officer Waskiewicz was also a Port Orange police officer on September 4, 1987. Officer Waskiewicz was not wearing a uniform. Officer Waskiewicz, upon entering the Corner, went to the left of the Corner to a large wall cooler and began looking at the contents of the cooler. The area of the Corner where Mr. Grothe was located was not busy. Only Officer Waskiewicz, Detective Girvan and another Port Orange police officer who had entered the Corner were in the area where Mr. Grothe was working. There were other customers in another area of the Corner where Mrs. Grothe was working. Mr. Grothe asked Officer Waskiewicz if she needed any help. Officer Waskiewicz indicated that she did not. Officer Waskiewicz selected a sealed bottle labeled Florida Wine Cooler from the cooler and took it to the counter where Mr. Grothe was standing. Officer Waskiewicz paid Mr. Grothe for the Florida Wine Cooler and Mr. Grothe put it into a paper bag. On the label of the Florida Wine Cooler it was indicated that the bottle contained 6 percent alcohol. The first ingredient listed on the label of the bottle was orange wine. At no time did Mr. Grothe ask Officer Waskiewicz her age or ask her for proof of her age. Nor did Officer Waskiewicz make any representation to Mr. Grothe concerning her age. Officer Waskiewicz handed the paper bag with the sealed Florida Wine Cooler in it to Detective Girvan, who had witnessed the sale. Detective Girvan then notified Mr. Grothe that he had sold an alcoholic beverage to a person under the legal drinking age. Criminal charges relating to the sale were brought against Mr. Grothe. Officer Waskiewicz was born on January 11, 1968. On September 4, 1987, Officer Waskiewicz was nineteen years of age. Officer Waskiewicz was wearing black, high-heeled pumps and a black belt, a long-sleeve blouse and a skirt at the time of the sale of the wine cooler by Mr. Grothe. She described her dress as "casual" and as "appropriate for a work environment." Her hair was worn down on one side and in a ponytail on the other side. She wore some makeup. Mr. Grothe believed that Officer Waskiewicz at the time of the sale had the bearing, visage and general appearance of a woman over the age of 21 years. Officer Waskiewicz is sufficiently young enough in appearance, however, even at the age of 20 years, that it could not be concluded conclusively that she was 21 years of age or older. Officer Waskiewicz had never bean in the Corner prior to September 4, 1987, and had never purchased or attempted to purchase alcohol at the Corner prior to the purchase of the Florida Wine Cooler on September 4, 1987. The Corner was closed subsequent to September 4, 1987, and is no longer in operation. The Respondents have not been charged with any other violations relating to their beverage license. The Department has a policy of imposing a $1,000.00 administrative fine and a 20-day suspension of license on licensees for the first offense of selling alcoholic beverages to a minor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondents be found guilty of violating Section 562.11(1)(a), Florida Statutes. It is further RECOMMENDED that the Department suspend the Respondents' alcoholic beverage license for a period of twenty (20) days and impose a civil penalty of $500.00 on the Respondents. DONE and ENTERED this 15th day of November, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 15th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3080 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 7 and 11-14. The evidence failed to prove that Officer Waskiewicz purchased a "Seagram's Wine Cooler" (it was a Florida Wine Cooler) or that the label on the bottle indicated that the alcohol level was 4 percent (it was 6 percent). 3 11 and 16. 4 6 and 12. Summary of the Respondents' position. See finding of fact 15. See finding of fact 19. The Respondents' Proposed Findings of Fact The Respondents' proposed findings of fact have been accepted in paragraphs 1-5, 9, 11-12, 17 and 19. COPIES FURNISHED: Elizabeth Masters Deputy General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Sylvan A. Wells, Esquire Post Office Box 5307 Daytona Beach, Florida 32018-1307 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301-1927 Van B. Poole, Secretary Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301-1927
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 This is an action filed by the Petitioner pursuant to Section 120.56, Florida Statutes, challenging the validity of the existing Rule 7A-4.13, Florida Administrative Code, by alleging that the Rule is an invalid exercise of delegated legislative authority.
Findings Of Fact On August 2, 1979, the Petitioner, Jax Liquors, Inc., filed its Petition pursuant to Section 120.56, Florida Statutes, challenging the validity of Rule 7A-4.13, Florida Administrative Code. This Rule is a rule promulgated by the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Respondent. Subsequent to the filing of the Petition, the Director of the Division of Administrative Hearings assigned the case to this Hearing Officer for consideration. On August 17, 1979, the Intervenor, Beer Industry of Florida, Inc., ("BIF") filed a Motion for Leave to Intervene and that intervention was allowed. On November 13, 1979, a formal hearing in this matter was conducted through the process of the introduction of a Prehearing Stipulation entered into between the parties, the introduction of supplemental evidence, and the presentation of oral argument designed to augment the legal Memoranda submitted by the parties. One of the aspects of the Prehearing Stipulation was the submittal of an agreed statement of admitted facts. These facts are in Section V. In accordance with the Stipulation, the facts are established as follows: Jax Liquors, Inc., has standing to attack the validity of Rule 7A- 4.13, Florida Administrative Code. State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco and Beer Industry of Florida, Inc., have standing to participate in this action and defend Rule 7A- 4.13. Exhibit A attached hereto is an accurate copy of Rule 7A-4.13, Florida Administrative Cede, which makes the wholesale price of malt beverages sold by any one distributor a matter of public record. Rule 7A-4.13, Florida Administrative Code (hereinafter "the Rule"), requires that a distributor of malt beverages file his selling price with the Division ten days in advance of the effective date of such price. In other words, if a distributor wishes to sell beer at a certain price, he must file that price in the central office of the Division of Alcoholic Beverages and Tobacco and also in the appropriate (his distribution area) district office, and then wait ten days before actually selling at that price. Wholesalers, including but not limited to the members of BIF, routinely change the price at which retail vendors may purchase beer for resale. These changes may occur on a daily basis and result from shifts in supply and demand for the product, special promotions by the manufacturer, volume purchases by vendors, and other circumstances occurring in the marketplace. The price posted by a distributor must be available to all retailers who wish to purchase similar quantities at the same time. The Rule does not require a retailer to sell at any particular price. The retailer is free to sell at any price he may set. Rule 7A-4.13 is used by the Division to monitor the price at which beer wholesalers sell to retailers. The posted price provides a record of wholesale prices. Therefore, the Division can compare a wholesaler's or retailer's invoices, checks, etc., to the posted price to determine if a violation of Rule 7A-4.13 has occurred. This system also gives retailers a way in which to discover if prohibited transactions have occurred. Subject to the time restriction set forth in Rule 7A-4.13, JAX is free to negotiate the price at which it may buy beer from the wholesaler, provided that the product must be made available by the wholesaler to all retail vendors buying similar quantities of the product at the same time. Intervenor's exhibits of rules and statutes are accurate exhibits of such rules and statutes which were validly enacted and uniformly enforced for the period during which same were in effect. During license year October 1, 1977, to September 30, 1978, the State of Florida had issued 6,710 retail liquor licenses and 27,918 retail beer licenses. During calendar year 1978, 25,267,559 gallons of liquor were sold in Florida. During fiscal year 1978-79, 19,349,229.78 gallons of wine were sold in Florida. During calendar year 1978, 225,855,202 gallons of beer (based on 2.25 gallons per case of 24-12 ounce and 15.5 gallons per 1/2 bbl.) were sold in Florida. In the Prehearing Stipulation there was another category of facts to which the parties stipulated as being uncontroverted, but relevancy was not admitted. Of the statement of facts, the following facts stipulated to are herein reported and made a part of the Findings of Fact section of this Order. They are: packaged. Beer generally begins to deteriorate 60 to 120 days after it is Beer that has reached its expiration date is removed from the shelves of the retailer by the wholesaler and is destroyed. In its original sealed container, wine has a shelf life of from 120 days to many years. In its original sealed container, liquor has a shelf life of many years. Wine and liquor are generally presold (i.e., contract between the wholesaler and retailer is entered in advance of delivery). Beer is sometimes presold, but usually is sold by a truck driver who makes sales from his vehicle at the time he calls upon a retailer. The parties by their Prehearing Stipulation further agree that there are no issues of fact which remain to be litigated and there are no issues of fact which remain for determination by the Hearing Officer. Therefore, the legal conclusions reached in this matter are premised upon a consideration of the fact stipulations reported above; the items of evidence presented as exhibits to the Prehearing Stipulation, as amended November 14, 1979, by correction to Exhibit J, and other exhibits presented in the course of the hearing, to include the Petitioner's Composite Exhibit No. 2 not presented as a part of the Prehearing Stipulation. The facts related in the Petitioner's Exhibit No. 1 and the Petitioner's Composite Exhibit No. 2 are made a part of the Findings of Fact section of this Order by incorporating the exhibits by reference and attaching copies to this Order.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order finding the Respondent, Linjack, Inc., guilty as charged under both counts of the Notice To Show Cause and imposing a civil penalty of $1000. RECOMMENDED this 7th day of July, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1988.
