Findings Of Fact Willie Joe Williams lives in Laurel Hill in northern Okaloosa County, Florida. He considers himself to be of good moral character, and his wife concurs. In 1972 and again in 1975, however, he was arrested for possession of moonshine which belonged to his wife, Rosa May Williams. These arrests did not result in convictions because petitioner turned state's evidence. On October 24, 1975, an order was entered withholding adjudication of guilt and placing petitioner on 18 months' probation on charges of possession of moonshine. In 1966, petitioner was arrested for the reckless display of a firearm. A $35.00 cash bond posted on the day of the arrest was later estreated. Also in 1966, petitioner was arrested for "Non Support." On November 30, 1979, petitioner was arrested for possession of unstamped cigarettes, possession of alcoholic beverages with the intent to see without a license, and sale of alcoholic beverages without a license. Respondent's Exhibit No. 1. The Kool cigarettes petitioner had in his possession on November 30, 1979, had acquired in Alabama just across the border. Petitioner pleaded guilty, and was adjudicated guilty of possession of alcoholic beverages for resale without a license and of possession of unstamped cigarettes; and he was place on one year's probation. The beer for possession of which petitioner was convicted belonged to his wife.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for licensure. DONE AND ENTERED this 30th day of September, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1980. COPIES FURNISHED: David A. Pascoe, Esquire 120 Wellington Road Fort Walton Beach, Florida 32548 James N. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301
The Issue Should Respondent's alcoholic beverage license be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At times pertinent to this proceeding, Respondent held alcoholic beverage license No. 63-02541, series 2APS, for an establishment known as Green and White Texaco (the licensed premises), located at 3501 Cleveland Heights Boulevard, Lakeland, Florida. The Department opened an investigation of the licensed premises after an arrest was made by the Lakeland Police Department related to alleged sales of alcoholic beverages to underage persons by Respondent's employees. James Carl Clinard was identified as the underage Investigative Aide No. 97032 in the Administrative Action filed against Respondent by the Department. On December 5, 1997, James Carl Clinard was 18 years of age (date of birth May 23, 1979) and his appearance on December 5, 1997, was that of a person under 21 years of age. On December 5, 1997, Clinard was working with Officer Leron Strong and Lt. Nelson in an attempt, as an underage Investigative Aide, to purchase an alcoholic beverage from the licensed premises. Before beginning work on December 5, 1997, Clinard was instructed by Strong and Nelson that he was not to attempt to deceive anyone as to his age or appearance. Clinard's identification (a valid State of Florida driver's license which indicated his age to be 18 years) was checked by Lt. Nelson and Officer Strong and found to be legitimate. Clinard's photograph on his identification and his appearance on December 5, 1997, were similar and not misleading as to his age listed on his identification. Clinard was only allowed to carry into the licensed premises his identification and the money furnished by the Department for the purchase of the alcoholic beverage. Sometime around 6:20 p.m. on December 5, 1997, Clinard entered Respondent's licensed premises. Both Strong and Nelson waited outside the licensed premises. After entering the licensed premises, Clinard went to the cooler and selected a bottle of "Bud Light" beer which he brought to the counter. Before selling Clinard the beer, the cashier, Robin Ann Boss asked for and Clinard presented his identification. The cashier sold Clinard the beer, notwithstanding that Clinard's identification showed his age to be 18 years of age. After paying for the beer, Clinard took possession of the beer and exited the licensed premises. Subsequently, Clinard turned the beer over to the Department's agents. Clinard does not remember the cashier giving him a receipt for the beer. Likewise, the agents do not remember Clinard turning in a receipt for the beer. As a result of selling the alcoholic beverage to Clinard, Robin Ann Boss was arrested by Officer Strong. On December 8, 1997, Lt. Nelson mailed Respondent an Official Notice advising Respondent that its employee, Robin Ann Boss, had been "warned or charged" for selling, giving, or serving persons under 21 years of age alcoholic beverages in violation of Section 562.11, Florida Statutes. Crystal Henry was identified as the underage Investigative Aide No. 97028 in the Administrative Action filed against the Respondent by the Department. On January 7, 1998, Henry was 16 years of age (date of birth October 22, 1981) and her appearance on January 7, 1998, was that of person under the age of 21 years. On January 7, 1998, Henry was working with Agent Cleveland McKenzie and Anne Ekstrand in an attempt, as an underage Investigative Aide, to purchase alcoholic beverages or tobacco products from the licensed premises. Before beginning work on January 7, 1998, Henry was instructed by Agents McKenzie and Ekstrand that she was not to attempt to deceive anyone as to her age or appearance. Agents McKenzie and Ekstrand checked Henry's identification (a valid State of Florida driver's license which indicated her age to be 16 years) and found it to be legitimate and found that her identification was not misleading as to her age or her appearance on January 7, 1998. Henry was only allowed to carry into the licensed premises her identification and the money furnished to her by the Department for the purchase of the alcoholic beverage and tobacco product. Sometime around 5:00 p.m. on January 7, 1998, Henry entered the licensed premises. Upon entering the licensed premises, Henry proceeded to the beer cooler and obtained a Bacardi Breezer wine cooler. Henry then walked to the check-out counter with the wine cooler and asked the clerk for a five-pack of Black and Mild Cigars. The sales clerk completed the sale without asking Henry for any form of identification. Henry paid the sales clerk $1.79 for the cigars and $2.09 for the wine cooler. Henry took possession of the wine cooler and cigars and exited the licensed premises. Subsequently, Henry turned the wine cooler and cigars over to Agent McKenzie. Henry does not remember the clerk giving her a receipt for the wine cooler and cigars. Likewise, the agents do not remember Henry turning in a receipt for the wine cooler and cigars. The clerk was identified as Valerie Ann Walker, who was subsequently charged with and arrested for, the sale of an alcoholic beverage and tobacco product to an underage person in violation of Section 562.11, Florida Statutes. A Final Warning was issued to Respondent on January 9, 1998, advising Respondent of the violation and giving Respondent notice that another violation would result in the issuance of an Administrative Action by the Department which could subject Respondent's alcoholic beverage license to formal revocation or suspension proceedings. Enrique Ramos was identified as the underage Investigative Aide No. 97033 in the Administrative Action filed against the Respondent by the Department. On February 17, 1998, Ramos was 18 years of age and his appearance on February 17, 1998, was that of a person under the age of 21 years. On February 17, 1998, Enrique Ramos was working with Agents McKenzie and Ekstrand in an attempt, as an underage Investigative Aide, to purchase alcoholic beverages from the licensed premises. Before beginning work on February 17, 1998, Ramos was instructed by Agents McKenzie and Ekstrand not to attempt to deceive anyone about his age or appearance. Agents McKenzie and Ekstrand checked Ramos' identification (a valid State of Florida driver's license which indicated his age to be 18 years) and found his identification to be legitimate and his identification not misleading as to his age or appearance. Ramos was only allowed to carry into the licensed premises his identification and the money furnished by the Department for the purchase of the alcoholic beverage. At approximately 4:15 p.m. on February 17, 1998, Ramos entered the licensed premises and went to the beer cooler and obtained a six-pack of Budweiser Beer (12-ounce bottles) and approached the check-out counter and placed the beer on the counter. The clerk sold Ramos the beer without checking his identification. Ramos paid the clerk $5.19 for the beer. Ramos took possession of the beer from the clerk and exited the licensed premises where he subsequently turned the beer over to Agents McKenzie and Ekstrand. The clerk was later identified as Ravin E. Bradshaw. Bradshaw was charged with selling an alcoholic beverage to a person under the age of 21 in violation of Section 562.11, Florida Statutes. Respondent's back-up cash register tapes (Respondent's Exhibit number 2) do not reflect a beer sale during the period of time Ramos testified that he purchased the six-pack of Budweiser Beer on February 17, 1998. However, I find the testimonies of Ramos, Agent McKenzie, and Agent Ekstrand to be more credible concerning the purchase of the beer on February 17, 1998, than the back-up cash register tapes or the testimony of Bradshaw, Respondent's clerk and Jung I. Huang, Respondent's manager. The testimony of Respondent's clerks were that they were instructed to "card" or check each alcoholic beverage or tobacco product purchaser's identification to determine if the purchaser was 21 years old or older. However, it was also the practice of Jung Huang and his wife, Yu Chin Lin, a.k.a Michelle, president of Green and White, Inc., to become angry with a clerk who was "carding" every customer. In some instances, both Huang and Michelle would advise a clerk not to card certain customers. Respondent failed to comply with all the training and record-keeping requirements of the Responsible Vendor Program set out in Sections 561.701-561.706, Florida Statutes, notwithstanding the testimony of Jung Huang to the contrary and whose testimony I find lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order suspending Respondent's alcoholic beverage license No. 63-02541, 2APS for a period of seven days and it is further recommended that Respondent be required to pay an administrative fine of $1,000.00 to the Division of Alcoholic Beverages and Tobacco. DONE AND ENTERED this 10th of August, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of August, 1999. COPIES FURNISHED: Elsa Lopez Whitehurst, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Tony Dodds, Esquire 825 East Main Street Lakeland, Florida 33801 Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 William Woodyard, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue The issue presented concerns the entitlement of the named Petitioners to he granted a new Series 2-COP beverage license from the Respondent, in the face of a disapproval letter entered by the Director of the State of Florida, Division of Alcoholic Beverage and Tobacco.
Findings Of Fact Bruce F. Eggett and Timothy R. Miller, the named Petitioners in this cause, have made application for the issuance of a new Series 2-COP beverage license. This application has been made with the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco and in response to this request the Director of the Division of Alcoholic Beverages and Tobacco wrote the Petitioners on July 10, 1980, and in the course of that correspondence indicated his intent to deny the license application. The stated ground for denial was that "one of the applicants convicted of felonies within past fifteen years." The stated authority for the denial was Section 561.15, Florida Statutes. 1/ The Petitioners did not agree with the decision of the Director and orally requested an administrative hearing in this cause. This request was made with Captain Jack Wallace, Beverage Officer and District Supervisor for the Orlando, Florida, District. After receiving the oral request, this matter was made known to the legal staff of the Respondent and one of the staff attorneys, acting at the behest of the Director of the Division of Alcoholic Beverages and Tobacco, asked the Division of Administrative Hearings to conduct the formal hearing pursuant to Section 120.57(1), Florida Statutes. The hearing was conducted on September 8, 1980, and although the Petitioners had been duly noticed of the hearing, the Petitioners did not attend nor offer anything in behalf of their request for license. The Respondent presented copies of the license application request of both Bruce Francis Eggett and Timothy Robert Miller. The application form mentioned here is a personal questionnaire, individually, completed by the Petitioners. (Copies of those personal questionnaires pertaining to Eggett and Miller may be found as the Respondent's Exhibits No.1 and 2 admitted into evidence respectively.) Question 6 of the questionnaire asks the following: Have you ever been: Arrested for violation of any other law of this state, any other state or the United States? (excluding minor traffic) If answer to any of these questions is yes, list aliases and give full disclosure of charges, dates, arresting agencies and places of arrest." To this question, the Petitioner Eggett marked "yes" and stated (1) 1971 breaking and entering and (2) 1977, delivery of Methaquaalude. In response to the same question, Petitioner Miller answered that he had been arrested in 1968 for public intoxication and blocking traffic in Canton, Ohio. No further proof was offered by the Respondent on the question of these arrests and the disposition made of the matters.
Recommendation It is RECOMMENDED that the Director of the State of Florida, Division of Alcoholic beverage and Tobacco, deny the Petitioners, Bruce F. Eggett's and Timothy P. Miller's request to be granted a new Series 2-COP beverage license. DONE AND ENTERED this 24th day of September, 1980, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1980. Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1980.
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the notice to show cause dated June 16, 1992; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent owns an alcoholic beverage license, license number 5803205, for a business known as Tiffany & Suzy Q's Fun and Munch located in Apopka, Florida. Mr. Bowers, Respondent's husband, does not own the subject business or license, and may not as he has prior felony convictions within the last past five years that preclude his eligibility to own or hold an alcoholic beverage license. At all times material to the allegations of this case, Mr. Bowers was on the licensed premises acting as the manager or other person in charge of the business activities. Acting on information from a confidential source, the FDLE commenced an investigation of several vendors rumored to be involved in illegal foodstamp activity. FDLE retained several confidential informants (CI) to offer foodstamps for sale at substantially reduced prices. One of the confidential sources, Ella Mae Davis, posed as the seller at Respondent's licensed store. Acting in concert with another CI, Ms. Davis went to the store and offered foodstamps for sale to Respondent's husband. Ms. Davis alleged that the foodstamps had been stolen by her boyfriend, and that she wanted to sell them. Her instructions were to make Mr. Bowers (or other person at the store if there had been another) aware that the stamps were illegal, and to determine if a sale would be possible. On the first occasion, Mr. Bowers was receptive to the offer made by Ms. Davis and the CI. Ms. Davis observed Mr. Bowers go into a backroom at the store with the other CI who had possession of the foodstamps. When the CI came out, and the two women left the premises, the CI had the money received in exchange for the foodstamps. On a second visit to the store, Ms. Davis met Mr. Bowers who introduced her to a second male. Ms. Davis observed a second exchange of foodstamps for cash with the second male. This transaction took place at the licensed premises. During each of the transactions at the licensed premises, Ms. Davis observed Mr. Bowers' physical proximity to the exchange of foodstamps for cash. On each occasion the rate of exchange for the foodstamps was approximately fifty percent of the face value of the stamps. The Respondent was not on the licensed premises on either occasion when foodstamps were exchanged by Ms. Davis or her partner CI.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order revoking Respondent's beverage license. DONE AND RECOMMENDED this 21st day of January, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4808 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 9 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Thomas A. Klein Chief Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Para Bowers, pro se 104 East 18th Street Apopka, Florida 32703 Richard W. Scully, Director Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue Whether Respondent's plea of nolo contendere to the crime of possession of a controlled substance (for which adjudication was withheld) is sufficient to support the imposition of discipline with regard to his alcoholic beverage license.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to issue beverage licenses pursuant to Chapter 561, Florida Statutes, and applicable rules. Prior to September 11, 2000, Respondent, doing business as Smiley's, was the owner and holder of a beverage license, DBPR License No. 74-05336, Series 2-COP, which permits him to sell beer and wine for consumption on premises. On October 9, 1998, Respondent was charged by information with sale and delivery of cocaine. He was acquitted of that charge on May 12, 2000. Subsequently in a separate incident, Respondent was charged with possession of cocaine and on September 11, 2000, pleaded no contest to that charge. Pursuant to Respondent's timely request for formal proceedings, Petitioner's counsel initiated discovery in the course of this administrative proceeding through a Request for Admissions to which Respondent failed to respond. Respondent failed to provide a satisfactory explanation for this circumstance and, upon motion of Petitioner, the Request for Admissions was deemed admitted. Those admissions establish that Respondent entered a no contest plea on September 11, 2000, to the charge of possession of cocaine and that the plea bargain negotiated at that time also included two days' incarceration. Additionally, the admissions establish that Respondent is aware that possession of cocaine is a crime punishable by imprisonment for a term of five years. Respondent's own testimony is uncorroborated by other direct evidence and fails to establish that he possesses good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's alcoholic beverage license, DBPR License No. 74-05336, Series 2-COP. DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 July, 2001. COPIES FURNISHED: Paul Kwilecki, Jr., Esquire 629 North Peninsula Drive Daytona Beach, Florida 32118 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Lt. John P. Szabo Department of Business and Professional Regulation 400 West Robinson Street, Room 709 Orlando, Florida 32801 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's license number 42-55 be revoked. Respectfully submitted and entered this 27th day of February, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. C.A. Nuzum Director Division of Beverage 210 Johns Building Tallahassee, Florida Mr. Charles F. Tunnicliff Department of Business Regulation 725 S. Bronough Street Room 210, Johns Building Tallahassee, Florida 32304 Mr. White Route 2, Box 13B Marianna, Florida 32446
The Issue The issue in this case is whether the Petitioner's application for an alcoholic beverage license should be approved or whether it should be disapproved for the reason set forth in the letter of disapproval dated April 13, 1990.
Findings Of Fact Based upon the testimony of the witness and the evidence admitted into evidence, the following findings of fact are made: The Department is the state agency authorized to process applications for alcoholic beverage licenses. On January 10, 1990, the Petitioner, Mary L. Hooks, submitted an application to the Department for a series 1-APS alcoholic beverage license. Petitioner sought the license for a business known as Mary's Bait & Tackle which is located at 110 Conners Highway, Canal Point, Palm Beach County, Florida. According to records submitted to the Department, Petitioner's mailing address was P.O. Box 604, Canal Point, Florida, 33438. In response to questions posed on the alcoholic beverage application form, Petitioner disclosed that she was convicted of a felony, the delivery of marijuana, on January 22, 1986. That charge and conviction stemmed from activities which had purportedly occurred in Palm Beach County, Florida. Petitioner's civil rights were restored by executive order entered December 2, 1988. On April 13, 1990, the Department notified the Petitioner that her application for license no. 60-5357, 1-APS had been disapproved. That notice provided the following reason and authority for the disapproval: Authority 561.15(1)(2) and 112.011, Florida Statutes Reason(s) Applicant, Mary L. Hooks, has been convicted of a felony within the last past fifteen years and is not believed to be of good moral character. While Mrs. Hooks has a Restoration of Civil Rights, the crime for which she was convicted directly relates to the alcoholic beverage laws and, for this reason, the application is being denied. Petitioner timely filed a challenge to the notice of disapproval, but did not appear for the formal hearing. No evidence was presented on her behalf.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco entered a final order denying Petitioner's application for a series 1-APS license. DONE AND ENTERED this 24th day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1990. APPENDIX TO CASE NO. 90-2916 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1, 2, 3, 5, and 6 are accepted. Paragraph 4 is rejected as not supported by the record or hearsay. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. COPIES FURNISHED: D. Lance Langston Assistant General Counsel Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Mary L. Hooks P.O. Box 605 Canal Point, FL 33438 Cpt. Debbie L. Gray Elisha Newton Dimick Building 111 Georgia Ave., Room 207 West Palm Beach, FL 33401 Leonard Ivey, Director Dept. of Business Regulation Div. of Alcoholic Beverages & Tobacco The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1007
Findings Of Fact At all times relevant to the proceedings in this matter, the Respondents held beverage license No. 39-186, Series 2-APS. The license is issued to a drive-through beverage facility called the Beverage Castle located in Brandon, Florida. The Beverage Castle is owned by the Respondents and managed by Mr. Richard Jiosne. On April 29, 1983, Deputies Scoffield and Olsen of the Hillsborough County Sheriff's Department initiated surveillance at the licensed premises because of complaints that their office had received of sales of alcoholic beverages to minors. Deputy Olsen located himself in a wooded area approximately 25 to 30 yards from the licensed premises. Officer Scoffield was in a patrol car approximately 100 yards north of the licensed premises. Officer Olsen observed the licensed premises with a set of field glasses. At some point on the evening of April 29, 1983, the specific time being unknown, two white females in a red and white Mustang drove into the licensed premises and purchased a six-pack of Michelob beer. The driver of the Mustang was Tammy Jo Gibson and her passenger was Charlene Carroll Rogers. Both of these women were 18 years of age at the time of the purchase. Neither of the two women was asked for any identification prior to their purchase of the six- pack of beer. Tammy Jo Gibson did not testify at the formal hearing and the officers could not give a detailed description of her dress and physical appearance. Charlene Rogers testified but could not identify the person who sold the beer to them. The evidence was conflicting as to whether an employee, John Hanks, or the Respondent, Richard Jiosne, actually sold the beer to Ms. Gibson. From the evidence presented, it could not be determined who actually sold the beer to the two women and thus had the responsibility for checking identification. Respondents have a clear policy against selling alcoholic beverages to minors and, prior to this incident, had instructed their employees to check identification of all purchasers.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Respondents be found not guilty of the violation charged and that the charge be dismissed. ENTERED this 28th day of December, 1983, at Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard N. Jiosne Anne M. Jiosne 2205 Cornell Drive Brandon, Florida 33511 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Petitioner, Emad F. Abdelmeseh, d/b/a Emad's Texaco is entitled to recover attorney's fees and costs in defending the charges made against him in the case of Department of Business Regulation, Division of Alcoholic Beverages and Tobacco vs. Emad F. Abdelmeseh, d/b/a Emad's Texaco, Division of Administrative Hearings, Case No. 91-1618, under the provisions of Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code (formerly 22I-6.035, Florida Administrative Code) and, if so, the amount which Petitioner is entitled to recover.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was licensed by the Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, to sell alcoholic beverages from the premises of Emad's Texaco, having been issued license number 63-2090, 2APS. The Petitioner timely filed the petition in the instant case in accordance with Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code (now Rule 60Q-2.035, Florida Administrative Code). The Respondent timely filed a written response alleging that Respondent was substantially justified in issuing the Notice To Show. With its response the Respondent filed an Affidavit challenging the amount of attorney's fees and cost requested by the Petitioner. However, this Affidavit was subsequently withdrawn and the Respondent made no further effort to contest the attorney's fees and costs incurred by the Petitioner. Emad Abdelmeseh is domiciled in the state of Florida and is the sole proprietor of an unincorporated business known as Emad's Texaco, located at 101 East Memorial Boulevard, Lakeland, Florida. Emad's Texaco employs less than 25 employees, and the Petitioner's net worth is less than Two Million Dollars ($2,000,000.00). Petitioner is a "small business party" as that term is defined under Section 57.111(3)(d), Florida Statutes. On July 11, 1990, agents for the Division of Alcoholic Beverages and Tobacco (Division), John Blair and Brad Nelson, participated in a joint investigation with the City of Lakeland Police Department (CLPD) in the illegal selling of alcoholic beverages to minors. Throughout the course of this investigation the Division's agents were on official duty. Agents Blair and Nelson met with the CLPD detectives and Smalley prior to the investigation and remained with the investigation until its conclusion, including the investigation of Emad's Texaco. The Division, through its agents Blair and Nelson, fully participated in the investigation conducted on July 11, 1990, including Emad's Texaco, and did not simply rely on the CLPD's independent investigation to institute action against Emad's Texaco. This case was not what the Division considers an "adopted case" - one handled entirely by another law enforcement agency which request the Division to prosecute. Therefore, the investigation, as far as agents Blair and Nelson were concerned, should have been conducted in accordance with the Division's Policy and Procedure. The investigation of July 11, 1990, involved the use of an underage operative by the name of J. Karen Smalley n/k/a J. Karen Raschke (Smalley) with previous experience working with the Division, and documented as an underage operative by the Division. Prior to July 11, 1990, Smalley had also been used as an underage operative by the CLPD. During the July 11, 1990 investigation, Smalley was being paid by, and was under the direction of, the CLPD. Before leaving the Police Department to assist in the investigation on July 11, 1990, Smalley was instructed by both Detective Phillips and Agent Blair, on separate occasions, concerning her duties and responsibilities in regard to the investigation. During the course of the investigation on July 11, 1990, Smalley was sent on to the premises of Emad's Texaco for purposes of attempting to purchase an alcoholic beverage. Smalley went to the cooler area in Emad's Texaco's licensed premises and took a six-pack of beer to the check-out counter. Amad Abdelmeseh asked to see Smalley's identification. Smalley either handed her driver's license to Amad Abdelmeseh or laid her driver's license on the check-out counter. Emad Abdelmeseh looked at Smalley's driver's licenses which showed her date of birth to be July 24, 1970, just a few days short of being 20 years of age. Although the photograph of Smalley on the driver's license was taken in 1986, she still maintained her youthful appearance on July 11, 1990. On July 11, 1990, Smalley's hair was blonde, having dyed her hair which was brown when the driver's license was issued. However, Smalley did not dress-up or wear make-up on July 11, 1990, so as to appear older than her age of almost 20 years. There was insufficient evidence to establish facts to show that at the time Smalley was attempting to purchase the six-pack of beer on July 11, 1990, that she: (a) told Emad Abdelmeseh that she was 21 years of age or older or; (b) produced a driver's license, other than the driver's license referred to above, that listed a date of birth which would have indicated an age of 21 years or older or; (c) in any fashion attempted to misrepresent her age as being 21 years or older After looking at Smalley's driver's license, Emad Abdelmeseh sold Smalley the six-pack of beer. After making the purchase of beer, Smalley exited Emad's Texaco and advised Detective Phillips that she had made a purchase of beer from the person inside the store. Detective Phillips advised Detective Tim Snyder of the purchase. Detective Snyder then went inside Emad's Texaco and identified Emad Abdelmeseh as the person who had sold the beer to Smalley. On August 8, 1990, Agent Blair served a Notice of Intent To File Administrative Charges against Emad Abdelmeseh's alcoholic beverage license as a result of his sale of alcoholic beverage to Smalley. On August 8, 1990, Abdelmeseh complained to Agent Blair about the lapse of time between Smalley making the purchase of beer on July 11, 1990 and the serving of the Notice of Intent on August 8, 1990. Emad Abdelmeseh did not complain to Agent Blair on August 8, 1990 that Smalley had misrepresented her age to him when she made the purchase of beer on July 11, 1990. In fact, Emad Abdelmeseh did not advise Agent Blair, or anyone else with the Division, of his allegation that Smalley had misrepresented her age to him on July 11, 1990, when she purchased the beer from him until after the Notice To Show Cause was issued by Lt. Robert Bishop. After the Notice of Intent was served on Emad Abdelmeseh, Agent Blair prepared a draft Notice To Show Cause and a synopsis for review by Lt. Robert Bishop, District Four Supervisor. Lt. Bishop has been a supervisor with the Division for 23 1/2 years. On August 16, 1990, Lt. Robert Bishop, acting with authority from the Division Director, issued a Notice To Show Cause which was served against the Petitioner's alcoholic beverage license on August 17, 1990 alleging that Petitioner had sold alcoholic beverages from the premises of Emad's Texaco to a person under the age of 21 years contrary to Section 562.11(1)(a), Florida Statutes. The issuance of the Notice To Show Cause was the initiation of the case against the Petitioner and the Division was not a nominal party in this case. In issuing the Notice To Show Cause, Lt. Bishop relied solely on the information in the Notice To Show Cause and the synopsis prepared by Agent Blair without any further investigation or discussion with Agent Blair. The Division had used Smalley as an underage operative on several occasions prior to the investigation on July 11, 1990, and had found her to be a credible and reliable underage operative. Therefore, the Division reasonably relied on Smalley in the issuance to the Notice To Show Cause to Emad Abdelmeseh, notwithstanding that on July 11, 1990, Smalley was being paid by, and was under the direction of, the CLPD. Agent Blair has been an agent with the Division for 16 years and his reports, according to Lt. Bishop, are impeccable. Therefore, Lt. Bishop had no problem in issuing the Notice To Show Cause to Emad Abdelmeseh based solely on Agents Blair's report, notwithstanding that Agent Blair's report did not specifically indicate that he had strictly adhered to the Division's Policy and Procedure. Although the record reflects that Agent Blair did not strictly adhere to the Division's Policy and Procedure on July 11, 1990, there is competent substantial evidence to establish facts to show that the CLPD detectives basically filled in the gaps, so the speak. It is clear from the testimony of Lt. Bishop that even if had he made further inquiry of Agent Blair concerning Agent's Blair's adherence to policy and procedure, it would not have changed Lt. Bishop's mind about issuing the Notice To Show Cause because there was a reasonable basis in law and fact to issue the Notice To Show Cause - there was credible evidence that Emad Abdelmeseh had sold an alcoholic beverage to an underage operative in violation of the Florida Statutes. Along with the Notice To Show Cause served on Emad Abdelmeseh there was a Notice Of Informal Conference which provided for an Informal Conference between the Division and Emad Abdelmeseh on August 28, 1990 at 3:00 p.m. It was at this informal conference on August 28, 1990, that Emad Abdelmeseh first advised anyone from the Division of his allegation that Smalley had misrepresented her age to him on July 11, 1990. The Informal Conference did not resolve the issues and a Request For Formal Hearing signed by Emad Abdelmeseh and dated September 4, 1990 was filed with the Division. In the Request For Hearing Emad Abdelmeseh sets out what he considers to be the disputed issues of fact. In this request there is an allegation that the underage operative was misleading in that when asked if she was 21 years of age she continued to purchase the beer as if she was an adult. There was no mention of Smalley presenting her driver's license By letter dated February 12, 1991, Emad Abdelmeseh again sets out what he considers to be the facts. Among other things, he alleges that Smalley claimed that she was over the age of 21 years and that she did present her driver's license for identification. On March 11, 1991, the matter was referred to the Division of Administrative Hearings for conduct of a formal hearing. The Division prosecuted this action in the case of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco vs. Emad Abdelmeseh, d/b/a Emad's Texaco, Division of Administrative Hearings Case No. 91-1618. On October 30, 1991 the Division exercised its administrative discretion and entered an Order of Dismissal dismissing the charges against Emad Abdelmeseh set forth in the Notice To Show Cause issued on August 16, 1990. The reasons behind the Division's dismissal of the case were not presented at the hearing on April 29. 1992 or November 17, 1992. The Petitioner is the prevailing small business party as that term is defined in Section 57.111(3)(c), Florida Statutes. The hourly rate and the total number of hours expended by Petitioner's attorney, and others under his control, and the costs incurred in the defense of the Petitioner as set out in Amended Affidavit and attached as Exhibit B to the Petitioner's Amended Petition in the amount of $11,429.77 are reasonable, and should be the amount awarded in the event Petitioner is successful in presenting his Amended Petition. There is competent, substantial evidence to establish facts to show that at the time the Notice To Show Cause was issued on August 16, 1990 the Division had made a meaningful inquiry into the matter and there was a reasonable basis in fact and law to initiate the action. No special circumstances exist which would make the award unjust.
Findings Of Fact The Respondents, Thomas Olhausen and Henry Stripling, d/b/a Trackside Lounge, hold Beverage License No. 23-1647, Series No. 4-COP, which was issued for the current year. On or about June 5, 1983, the Respondent Thomas Olhausen sold a controlled substance, namely cocaine, to Beverage Officer Terminello while he was on the licensed premises known as Trackside Lounge in Dade County, Florida. On or about June 8, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Dodson while he was on the Trackside Lounge premises. On or about June 12, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Terminello while he was on the premises of Trackside Lounge. The Respondent Henry Stripling did not go onto the Trackside Lounge between the dates of March 10 and June 10, 1983, pursuant to a restraining order issued on March 10, 1983, by the Dade County Circuit Court. This March 10, 1983, court order appointed two receivers to supervise the operation of the business known as Trackside Lounge. Pursuant to this authority the receivers employed Thomas Olhausen to operate and manage the business. Thus, Thomas Olhausen was not subject to the restraining order which barred Henry Stripling from entry onto the Trackside Lounge premises. The Respondent Henry Stripling had no connection with the sale of cocaine by the Respondent Thomas Olhausen to the Beverage Officers on June 5, 8 and 12, 1983. The court order of March 10, 1983, did not attempt to effect a judicial transfer of the beverage license held by the Respondents. The court appointed receivers did not file an application for a beverage license pursuant to Section 561.17, Florida Statutes, and there is no evidence that the receivers attempted to transfer the beverage license held - by the Respondents pursuant to Section S61.32(1)(a) and (b), Florida Statutes, or Section 7A-2.06(6), Florida Adminstrative Code. The court appointed receivers did not file a certified copy of the order appointing them as receivers with the Division of Alcoholic Beverages and Tobacco pursuant to Section 7A-2.06(6), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the alcoholic beverage license held by the Respondents, Thomas Olhausen and Henry Stripling, being number 23-1647, Series No. 4-COP, be revoked. THIS RECOMMENDED ORDER entered this 26th day of July, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 26th day of July, 1983. COPIES FURNISHED: William A. Hatch, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Mark A. Jacobs, Esquire 18204 Biscayne Boulevard North Miami Beach, Florida 33160 Richard F. Hayes, Esquire Suite 20 4601 Ponce de Leon Boulevard Coral Gables, Florida 33146 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301
