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.
Findings Of Fact At all times relevant to this proceeding, Respondent held alcoholic beverage license No. 26-1715. The licensed premises is located at 621 Davis Street, Jacksonville, Florida. Petitioner's undercover investigator and confidential informant (CI) entered the licensed premises on March 9, 1982. Thereafter, the CI purchased cannabis from a patron of the licensed facility (Count 3) Petitioner's investigator returned to the licensed premises with the CI on March 10, 1982, on which date both the CI and the investigator purchased cannabis from a patron. On this occasion the patron was identified as a seller by the bartender when she was asked who would sell cannabis. These transactions were carried out openly (Count 4) Petitioner's investigator was again in the licensed premises on March 11, 1982, and observed the open sale and use of cannabis. He identified the substance sold and smoked by its appearance and smell (Count 5) . In those instances where Petitioner's investigator and CI made purchases, the substances were tested by the Florida Department of Law Enforcement Crime Lab, and confirmed to be cannabis. See Petitioner's Exhibit One. On March 24, 1982, Petitioner's investigator visited the licensed premises where he again observed the open sale and use of cannabis by patrons as well as by an employee (barmaid) of Respondent. The investigator also purchased cannabis from patron during this visit (Count 8). On March 25, 1982, Petitioner's investigator was on the licensed premises and observed the open sale and use of cannabis. He made purchases of this substance from a patron around 2:00 pm. and again about 11:30 p.m. (Count 9). Petitioner's investigator was in the licensed premises on March 26, 1982. He again purchased cannabis from a patron (Count 10). Respondent was not observed on the premises during any of the above periods. It was not, therefore, demonstrated that he had actual knowledge of the illegal activity.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's alcoholic beverage license for a period of 45 days. DONE and ENTERED this 7th day of December, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 7th day of December, 1982.
The Issue This case concerns the application of William E. Morey, who does business as Morey's Restaurant, to acquire a new series 2-COP beverage license from the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, in which the Respondent has denied the license application on the grounds that the granting of such a license would be contrary to provisions of Section 561.42, Florida Statutes, and Rule 7A-4.18, Florida Administrative Code. These provisions of the Florida Statutes and Florida Administrative Code deal with the prohibition of a financial interest directly or indirectly between distributors of alcoholic beverages and vendors of alcoholic beverages.
Findings Of Fact The Petitioner, Willian E. Morey, applied to the State of Florida, Departent of Business Regulation, Division of Alcoholic Beverages and Tobacco, for the issuance of series 2-COP alcoholic beverage license. By letter dated, January 23, 1979, the Director of the Division of Alcoholic Beverages and Tobacco denied the application based upon the belief that such issuance wood violate the provisions of Section 561.42, Florida Statutes, and Rule 7A-4.18, Florida Administrative Code. The pertinent provision of Section 561.42, Florida Statutes, states: 561.42 Tied house evil; financial aid and assistance to vendor by manufacturer or distributor prohibited; procedure for en- forcement; exception.-- (1) 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 manu- facturer or distributor assist any vendor by any gifts or loans of money or property of any description or by the giving of rebates of any kind whatsoever. * * * In keeping with the general principle announced in Section 561.42, Florida Statutes, the Respondent has enacted Rule 7A-4.18, Florida Administrative Code, which states: 7A-4.18 Rental between vendor and distri- butor prohibited. It shall be considered a violation of Section 561.42, Florida Sta- tutes, for any distributor to rent any property to a licensed vendor or from a licensed vendor if said property is used, in whole or part as part of the licensed premises of said vendor or if said property is used in any manner in connection with said vendor's place of business. The facts in this case reveal that William E. Morey leases the premises, for which he has applied for a license, from Anthony Distributors, Inc., of 1710 West Kennedy Boulevard, Tampa, Florida. Anthony Distributors, Inc., is the holder of a J-DBW license to distribute alcoholic beverages in the State of Florida. This license is held with the permission of the State of Florida, Division of Alcoholic Beverages and Tobacco. Consequently, the issuance of a series 2-COP license to William E. Morey at a time when he is leasing the licensed premises from a distributor of alcoholic beverages, namely, Anthony Distributors, Inc., would be in violation of Section 561.42, Florida Statutes, and Role 7A-4.18, Florida Administrative Code.
Recommendation It is recommended that the Petitioner, William E. Morey's application for a series 2-COP beverage license be DENIED. DONE AND ENTERED this 10th day of August, 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: Willian E. Morey d/b/a Morey's Restaurant 4101 North 66th Street St. Petersburg, Florida 33709 Mary Jo M. Gallay, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Between June 6 and October 3, 1980, Petitioner's beverage officers and representatives of the Polk County Sheriff's Department conducted an undercover investigation of the Oasis Lounge in Ft. Meade. The business is operated by Milton Haverty who holds alcoholic beverage license No. 63-775. The manager- bartender during this period was John Haverty, the Respondent's son. On June 12, 1980, Beverage Officer West and Sgt. Allen of the Polk County Sheriff's Department visited the licensed premises in an undercover capacity. On that date, Martha Ann Berry delivered a beer to Beverage Officer West and accepted his payment for it. Both Officer West and Sgt. Allen observed Berry serve beer to another patron. Berry had been reported to the Polk County Sheriff's Department as a runaway juvenile. However, there was no evidence presented in this proceeding to establish that she was under 18 years of age at the time she delivered the alcoholic beverages. During the June 12, 1980, undercover visit to the licensed premises, the investigators openly discussed stolen property and were subsequently approached by John Haverty who asked that they obtain a T.V. set for him. Haverty and Sgt. Allen had further discussions about the T.V. set and a "stolen" outboard motor on June 20 and 24, 1980, again on the licensed premises. On June 27, the motor which was represented as stolen property was delivered to Haverty. In exchange for the motor, Haverty gave Allen three bags of marijuana (less than 20 grams) The transaction took place on the licensed premises. A subsequent sale of electronics equipment represented to be stolen goods was made by Allen to John Haverty on the licensed premises October 3, 1980. Haverty paid Allen $75.00 for these items.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner dismiss the Notice to Show Cause. DONE AND ENTERED this 30th day of July, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1981. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Milton Haverty Oasis Lounge 115 South Charleston Ft. Meade, Florida 33841
The Issue Whether Respondent sold alcoholic beverages to a person under the age of 21 in apparent violation of Subsection 562.11(1)(a), Florida Statutes.
Findings Of Fact Based on my observation of the witnesses, their demeanor while testifying and the entire record compiled herein, the following relevant factual findings are made. During times material, Respondent, Rasem Mohammad Awadallah, held license number 63-02202, series 2-APS authorizing the sale of alcoholic beverages at Sam's Big Apple (Sam's) which is situated at 110 Manor Drive, Bartow, Polk County, Florida. Respondent is the owner of Sam's. On February 13, 1992, law enforcement officers from the Bartow Police Department conducted an investigation of businesses, including Respondent's, that were allegedly making sales of alcoholic beverages to persons under the age of 21. The investigation was prompted by several citizen complaints alleging that Respondent and other businesses were selling alcoholic beverages to underaged persons at their licensed premises. On February 13, 1992, Lieutenant James Byrd and Patrolman Michael S. Marcum went to Sam's to investigate the complaints of alcoholic beverage sales to minors. Patrolman Marcum's date of birth is October 24, 1972. As such, he was 19 years of age on February 13, 1992. Lieutenant Byrd instructed Patrolman Marcum to enter Sam's and attempt to purchase alcoholic beverages. He was instructed that if at any time identification was requested of him, he would produce his driver's license which displayed his correct date of birth. Patrolman Marcum was further instructed that if he was asked his age by Respondent or clerks at Sam's, he would truthfully answer. Patrolman Marcum entered Sam's on February 13, 1992, retrieved a six- pack of "Milwaukee's Best Beer" from the cooler and approached the sales counter. Patrolman Marcum purchased the beer from Respondent who made the sale without asking whether he was at least 21 years of age or for identification which would show his age. The sealed cans of beer that Patrolman Marcum purchased from Respondent were clearly marked as alcoholic beverages. Upon exiting the premises, Patrolman Marcum and Lieutenant Byrd rendezvoused with Detective Mike Hamil approximately fifteen minutes thereafter. Patrolman Marcum was provided a physical description of the person from whom he had purchased the beer and that person was later identified as Respondent. At the hearing herein, Patrolman Marcum identified Respondent as the person who sold him the six-pack of beer on February 13, 1992 at Sam's. Respondent was arrested approximately one month after the February 13, 1992 date of sale. He was later tried and convicted of selling an alcoholic beverage to a person under the age of 21. The delay in arresting Respondent was based on the delay in obtaining an arrest warrant for Respondent's arrest and based on ongoing investigations by the Bartow Police Department. Detective Hamil feared that an arrest of Respondent early in the course of the investigation would alert other area vendors that the Bartow police were engaged in an investigation which would possibly dissuade any other licensed vendors predisposed to such violations. Respondent denies having sold alcoholic beverages to any minors on February 13, 1992 to include Patrolman Marcum. However, Respondent admits that he was at Sam's on that date for approximately one hour. It is more likely than not, that Respondent sold alcoholic beverages to a minor, Patrolman Marcum, on February 13, 1992 as alleged in the notice to show cause filed herein. Respondent has not been the subject of prior disciplinary action by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a Final Order finding that Respondent violated Section 562.11(1)(a), Florida Statutes and that he be ordered to pay a civil penalty of $500.00 to the Division within thirty days of the entry of the Department's Final Order and that Respondent's license number 63-02202, series 2-APS, be suspended for a period of ten days. 1/ DONE AND ENTERED this 14th day of June, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 14th day of June, 1993.
The Issue Whether respondent's alcoholic beverage license should be disciplined on the charge that it violated Sections 212.15(2)(b) and 561.29(1)(a), Florida Statutes (1981), by failing to remit taxes collected pursuant to Chapter 212, Florida Statutes (1981).
Findings Of Fact On May 4, 1981, respondent was issued alcoholic beverage license No. 16-2232 SRX, Series 4 COP. The license has now expired. (Testimony of Boyd; P- 1.) On June 26, 1951, the Florida Department of Revenue issued a warrant for the collection of delinquent sales and use tax due and unpaid by respondent. The warrant states that respondent is indebted to the Department of Revenue for delinquent sales tax, penalty, and interest, totaling $22,710.66. This indebtedness remains outstanding and unpaid. (Testimony of Fox; P-2.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the notice to show cause filed against respondent be dismissed. DONE AND RECOMMENDED this 15th day of September, 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 15th day of September, 1982.
Findings Of Fact Wiley U. Pridgett, d/b/a Strip World Topless Entertainment, holds a Series 2-COP license to sell alcoholic beverages at 2201 South Orange Blossom Trail, Orlando. Petitioner has requested a new Series 2-COP license to operate at the same location. Petitioner has no specific plans for the use of her license. Her testimony established only that she ha a a close relationship with Wiley U. Pridgen and would look to him for guidance.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State of Florida, Division of Alcoholic Beverages and Tobacco, enter a final order denying the application of Cheryl Ann Nascimento for an alcoholic beverage license. DONE AND ENTERED this 25th day of March, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER, 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 25th day of March, 1981. COPIES FURNISHED: H. Franklin Robbins, Jr., Esquire 112 South Lake Avenue Orlando, Florida 32801 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether petitioner's application for transfer of an alcoholic beverage license should be granted, or denied on the ground that there is a pending disciplinary action against the license holder.
Findings Of Fact Timeliness of DABT's Denial of Application for Transfer On May 26, 1981, petitioner filed with DABT's Miami office an application for transfer of alcoholic beverage license No. 23-276, Series 4-COP. (Testimony of Harris, Caram; Ex. 1.) Upon discovering that the fingerprints of Richard J. Mandell, chief corporate officer of petitioner, were not on file and did not accompany the application, DABT notified Mr. Mandell, no later than June 24, 1981, that his fingerprints would be required. 2/ (Testimony of Harris, Caram.) In response, Mr. Mandell furnished the requested fingerprints to DABT on June 24, 1981. At that time, DABT treated the license application as complete. (Testimony of Harris, Caram.) By letter dated September 22, 1981, DABT notified petitioner that its application was disapproved because of a pending administrative case against the license. (Ex. 2A.) II. Denial of Petitioner's Application When petitioner filed its application for transfer of the alcoholic beverage license in question, administrative proceedings to revoke or suspend the license had been instituted and were pending against the licensee, Astral Liquors, Inc., d/b/a "Foxxy Laidy," a bar and lounge. (Prehearing Stipulation.) These disciplinary proceedings were instituted because of the conviction of Eugene Willner--Astral Liquors, Inc.`s sole stockholder--of a federal felony unrelated to operation of the Foxxy Laidy bar and lounge. (Testimony of Willner.) By written contract dated April 10, 1981, petitioner agreed to purchase from Astral Liquors, Inc., the Foxxy Laidy, located at 6507 Southwest 40th Street, Miami, Florida, for $175,000. Closing was contingent upon DABT approving transfer of the alcoholic license to petitioner. (Ex. 3.) DABT disapproved petitioner's application to transfer the license solely on the ground that there were pending proceedings against the license holder. DABT does not question whether the sale of Foxxy Laidy to petitioner is a bone fide, arms-length transaction or the qualifications of petitioner to hold an alcoholic beverage license. (Testimony of Harris; Ex. 2A, Ex. 8, Ex. 9.) DABT presented no evidence in support of denying petitioner's application other than there were pending administrative proceedings against the licensee. It did not explain or offer any reasons why, in this case, it should exercise its discretion by denying petitioner's application. To the extent its decision rests on non-rule policy considerations, it did not explicate them or subject them to scrutiny at hearing.
Recommendation Based on the foregoing, it is RECOMMENDED: That the application for transfer of alcoholic beverage license No. 23-276, Series 4-COP, be granted. DONE AND RECOMMENDED this 9th day of June, 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 9th day of June, 1982.
The Issue The issue in this case is whether the alcoholic beverage license of Harold Haffner, Jr., and Catherine B. Haffner, d/b/a Bay's Produce Market (Respondents) should be disciplined by the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner), based on actions they are alleged to have taken on October 18, 1988, in the sale of a can of beer to a person under 21 years of age.
Findings Of Fact At all times material hereto, Respondents have held an alcoholic beverage license issued by the Petitioner, number 39-02010-1-APS, and have done business at 6609 South Westshore Boulevard, Tampa, Florida, as Bay's Produce Market. On October 18, 1988, Respondent Catherine B. Haffner sold a can of beer to James L. Leschner, whose birthdate is November 21, 1970. At the time of this sale, Leschner was 17 years of age. At the time of this sale, Respondent Catherine B. Haffner testified that Bay's Produce Market was very busy since it was around noon. She did not check Leschner's identification, or even ask him his age. She testified that he looked 25 years old, and she simply assumed he was at least 21 years of age because he was approximately 6 feet 3 inches tall. The Petitioner's investigator, William P. Fisher, disputed Respondent's testimony. The store was not very busy, and only three customers were in the store, including Leschner, Fisher, and one other investigator. Based upon the demeanor of the witnesses, the testimony of Fisher is found to be more credible than that of Respondent. It is, therefore, found that Bay's Produce Market was not filled with many lunchtime customers, but rather, only Leschner and two other people were in the store at the time Respondent sold him a can of beer. Leschner did not show Respondent any false identification, or misrepresent his age. He was simply not asked for any identification, or about his age.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order suspending Respondents' license to sell alcoholic beverages for a period of thirty days, and imposing an administrative fine of $500. DONE AND ENTERED this 28th day of August, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1989. APPENDIX (DOAH CASE NO. 89-0804) Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Adopted in Finding 2. 4. Adopted in Finding 3. The Respondents did not file Proposed Findings of Fact. COPIES FURNISHED: John B. Fretwell, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Robert H. Carlton, Esquire 1101 East Jackson Street Tampa, Florida 33602 Steven Royal, Esquire 209 North Brush Street Tampa, Florida 33602 Joseph A. Sole, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara, Secretary Dept. of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
