Findings Of Fact On February 24, 1984, the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (the Division), issued alcoholic beverage license number 46-1196, Series 4-COP, to the Respondent, Sano Enterprises, Inc., of Ft. Myers, t/a Allen's Night Flight, for use at 6260 South Cleveland Avenue, Ft. Myers, Lee County, Florida. After April 22, 1985, the NCNB National Bank of Florida, Inc. (NCNB) foreclosed on the Respondent's assets, including its beverage license. The Division approved the transfer of the license to NCNB at some time after May 6, 1987. During the evening of August 16, 1985, at approximately 9:30 p.m., Respondent's manager transported in a vehicle registered to O. C. Allen, Jr., four cases of alcoholic beverages (by logical inference, more than 12 bottles) to the Respondent's licensed premises for resale. The vehicle was not permitted by the Division to transport alcoholic beverages for resale. O. C. Allen, Jr., is the husband of Respondent's sole owner, director and officer. He had a power of attorney to act for the Respondent. The Division's penalty guidelines call for a minimum penalty of $250 for the violation charged in charge 19, the civil penalty the Division seeks to impose under charge 19.
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 and Tobacco, enter a final order: (1) dismissing all of the charges in the Notice To Show Cause in this case except charge 19; (2) holding the Respondent, Sano Enterprises, Inc., of Ft. Myers, t/c Allen's Night Flight, guilty of violating charge 19 of the Notice To Show Cause for illegally transporting alcoholic beverages in a vehicle without a permit; and (3) imposing on the Respondent a civil penalty of $250. RECOMMENDED this 2nd day of October, 1987, 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 2nd day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2555 To comply with Section 120.59(2), Florida Statutes (Supp. 1986), the following explicit rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings Of Fact: Accepted and incorporated. First sentence, accepted and incorporated; the rest rejected as conclusion of law. Rejected as subordinate to facts not found and as unnecessary. Also, see Evidentiary Rulings, above. See 3, above. Also the last sentence is not supported by the record, and the alleged management agreement (unsigned) did not list the names Jose or Shields, according to the evidence. See 3, above. Unnecessary in light of the Findings Of Fact. Accepted. In part incorporated and in part subordinate to facts found. Respondent's Proposed Findings Of Fact. Accepted and incorporated. First sentence accepted and incorporated; second sentence, accepted but subordinate to facts found. 3.-8. Accepted but subordinate to facts found. See 3-8, above, except last sentence is rejected to the extent that there was testimony albeit hearsay. See 3-8, above. Except for last sentence, see 3-8, above; last sentence, subordinate to facts contrary to those found. 12.-13. See 3-8, above. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1927 Sandra Allen, Esquire P. O. Box 10616 Tallahassee, Florida 32302 Daniel Bosanko Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1927 Van B. Poole Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1927 Thomas A. Bell General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1927
The Issue Whether the Respondent committed the violations alleged in the Administrative Action dated April 28, 2008, as amended by the Division at the final hearing, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for regulating the sale of alcoholic beverages in the State of Florida, and for investigating and imposing discipline on persons holding licenses under Florida's Beverage Law. See §§ 561.02 and 561.29, Fla. Stat.(2007).1 The Pineapple Grille, which is located in Delray Beach, Florida, is a restaurant that serves food and alcoholic beverages. It holds a special restaurant license under Florida's Beverage Law, having been issued license number 60- 14514, Series 4COP. On or about February 25, 2008, Eric Scarborough, a special agent with the Division, visited the Pineapple Grille to investigate a complaint from an anonymous source alleging that employees of the Pineapple Grille had been refilling call-brand bottles in the bar with lower-grade liquor. Special Agent Scarborough's investigation revealed that the complaint received from the anonymous source was completely without foundation. During the visit on February 25, 2008, Special Agent Scarborough met with Renee Resemme, the manager and chef of the Pineapple Grille, and, as a matter of routine, served her with a notice requiring the Pineapple Grille to provide him with the previous six months' records of its sales and purchases of alcoholic and non-alcoholic beverages and food no later than March 3, 2008. Special Agent Scarborough requested these records as a matter of course because, under its license, the Pineapple Grille is required to have sales of food and non- alcoholic beverages comprise 51 percent of its gross revenue and because the Pineapple Grille must purchase alcohol from authorized distributors. Gurpal Singh and Ovide Paul are the owners of the Pineapple Grille. At the times material to this proceeding, Mr. Singh was the individual responsible for keeping the records of the business; Mr. Paul had been an owner of the business for only a short time before the notice was served and was not familiar with the manner in which the business's records were kept. At the time of Special Agent Scarborough's visit to the Pineapple Grille and for a significant period of time after the visit, Mr. Singh was in Seattle, Washington, on family business. When he received the notice served on Ms. Rosemme, Mr. Paul contacted the Pineapple Grille's certified public accountant, who had possession of the business records requested by Special Agent Scarborough. The certified public accountant told Mr. Paul that he was very busy, but he began gathering the records requested. The records had not been provided to Special Agent Scarborough by March 18, 2008, so he made a return visit to the Pineapple Grille on that date. Mr. Paul met with Special Agent Scarborough, and he told Special Agent Scarborough that he was not in charge of the documents but that the certified public accountant was getting them together. While the certified public accountant was trying to put the documents in order, the Division sent a letter requiring that records for the previous three years' sales of alcoholic and non-alcoholic beverages and food were to be produced. Upon receiving this letter, the certified public accountant wrote a letter to the Division requesting an extension of time to provide the records but there was no response to this request for an extension. The records were produced to the Division on August 6, 2008. During the five months in which Mr. Paul and the certified public accountant were working to get the records together, Mr. Paul made a number of telephone calls to Special Agent Scarborough's office to explain the delay in producing the records. Mr. Paul left his name and telephone number on the voice mail system whenever he telephoned, but he received no response from the Division.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order finding that GN Hotels & Restaurant, Inc., d/b/a Pineapple Grille, violated Section 561.29(j), Florida Statutes, by failing to produce records of the purchase and sales of alcoholic and non-alcoholic beverages and food within 10 days of the request for such records and imposing an administrative fine in the amount of $500.00. DONE AND ENTERED this 30th day of September, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2008.
