Findings Of Fact Respondent is the holder of Beverage License No. 26-150, Series 2-COP, allowing the consumption of alcoholic beverages on the premises, located at 5212 Heckscher Drive, Jacksonville, Florida. This beverage license was previously held by Respondent's husband, Glenn F. Rodgers, and brother-in-law Don E. Rodgers. Following their felony convictions, the Rodgers brothers agreed by stipulation signed on February 19, 1979, to divest themselves of all interest in the licensed operation. This stipulation was incorporated in Petitioner's Order signed April 3, 1979, which directed transfer of the license to a qualified applicant. Mary J. Rodgers applied for the transfer of said beverage license and included an affidavit filed with Petitioner on February 14, 1979, averring that she was purchasing the business from her husband and brother-in-law and would be the only person with any interest, direct or indirect, in the business. In reliance on this statement and the stipulation, Petitioner transferred the beverage license to Respondent. During an undercover inspection at Brown's Creek Fish Camp on June 6, 1980, beverage officers observed Respondent's husband, Glenn F. Rodgers, working on the licensed premises. On a June 27, 1980, follow-up inspection, beverage officers observed him giving instructions to a waitress. In a casual conversation, Glenn Rodgers told Beverage Officer Cunningham that the business was his and that he had owned it for three years. During Glenn F. Rodgers' prison work-release parole in 1980, he worked full-time at Brown's Creek Fish Camp. He is now employed in a construction job, but continues to work in the licensed premises on a part-time basis. Following the June premises inspections, Petitioner investigated Respondent's business relationships end discovered that the lease agreement on the property housing the licensed premises remained in the names of Glenn F. end Don E. Rodgers. When the Rodgers brothers originally purchased the business they co-signed a Small Business Administration loan for $30,000 and a promissory note to the prior owners for $10,000. Their names also remain on these business loans. Respondent paid $3,000 for the business, and makes lease and lean payments. She has not, however, assumed the underlying obligations to the lenders. Records of the Lake Forest Atlantic Bank, where Respondent conducts her banking, revealed that an account was opened on May 4, 1977, under the names of Glenn F. end Don B. Rodgers, a general partnership. The name of Mary J. Rodgers was added to the signature card on January 18, 1979, and on the date of the hearing, all three names remained on the account records. By late-filed exhibit, Respondent demonstrated that the bank account has now been transferred to her. Respondent's business records include invoices from the Eli Witt Company, Post Office Box 6887, Jacksonville, Florida. An Eli Witt receipt dated July 18, 1980, for supplies delivered to Brown's Creek Fish Camp carries the signature of Glenn Rodgers, Respondent's husband. North Florida Premium Finance Company and the Robert S. Shute, Inc. Insurance Agency records reveal that Glenn F. Rodgers also signed for the financing of business insurance policies issued to Mary O. Rodgers d/b/a Brown's Creek Fish Camp for the policy period June, 1980 to June, 1981.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of failure to disclose the interest of Glenn F. Rodgers at the time of making application for a beverage license in violation of Section 861.17, Florida Statutes (1979. It is further RECOMMENDED that Respondent be found guilty of failure to comply with Petitioner's Administrative Order directing divestment by Glenn F. Rodgers of any interest in operation of the licensed premises. It is further RECOMMENDED that Beverage License No. 26-150, Series 2-COP, held by Mary J. Rodgers, be revoked. DONE and ENTERED this 27th day of May, 1981, 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 27th day of May, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Donald G. Nichols, Esquire Post Office Box 40011 Jacksonville, Florida 32203
The Issue Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, with the intent to sell, a controlled substance; cocaine, and whether said cocaine was sold to one E. Santiago, for the price of $100 in U.S. currency, and whether said sale was consummated at the aforementioned beverage license premises, on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine contrary to Section 893.13, F.S. thereby violating Section 561.29, F.S. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc. d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $100 U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage licensed premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $2,200, U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises, on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. A count seven was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing. A count eight was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing. Whether or not on or about November 20, 1976, a bottle of non-tax paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered on the licensed premises, and whether or not said bottle bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid, contrary to Section 562.16, F.S., thereby violating Section 561.29, F.S. Whether or not on or about September 1, 1976, and continuing until on or about November 24, 1976, the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did maintain a public nuisance, to wit; maintain a place where controlled substances were illegally sold, kept or used, contrary to Section 823.10, F.S., thereby violating Section 561.29, F.S. Whether or not investigation revealed that on or about November 20, 1976, the Respondent, its agent, servant, or employee, did remove, deposit, or conceal a beverage, to wit, one (1) 2,000 cc bottle of Ron Medeliin Rum, with the intent to defraud the state of tax, contrary to Section 562.32, F.S. and Section 562.30, F.S., thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to this complaint the Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, was the holder of a license no. 23-1901, held with the State of Florida, Division of Beverage, and that license was for the premises located at 1601 Collins Avenue Miami Beach, Florida. The management of the licensed premises makes arrangements to hire entertainment in the form of musicians. This arrangement is made through agreement with the band leader. One of these agreements was made with a band leader who had as his band member Leouigildo Hernandez. On September 28, 1976, Officer E. Santiago, of the Miami Beach, Florida, Police Department entered the licensed premises and while in the licensed premises entered into discussion with Hernandez. Hernandez left the bar proper and came back with an amount of a substance known as cocaine. Santiago paid Hernandez $100 for the quantity of cocaine and the sale was consummated in the licensed premises. On October 30, 1976, Officer Santiago returned to the licensed premises. Santiago had been in the licensed premises many times prior to that occasion. Among the persons he had seen in the bar was Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales. Morales was the girlfriend of Anthony Bilbao, one of the principals in the ownership of the licensed premises. Morales had also served Santiago drinks in the bar on more than 50 occasions. On the evening in question, October 30, 1976, discussion was entered into between Santiago and Morales about the purchase of a substance known as cocaine. Morales produced a quantity of the cocaine and reached across the bar that she was standing behind and handed the quantity of the substance cocaine to Santiago, who was in the area where customers were served at the bar. Santiago paid her $100 for the cocaine. In the late hours of November 4 and early hours of November 5, 1976, Santiago again entered the licensed premises, his purpose for going to the licensed premises was to purchase a large quantity of cocaine from Morales. This arrangement had been entered into based upon the sample of cocaine that had been provided him on October 30, 1976. Morales left the licensed premises and returned 3 to 5 minutes later with a quantity of cocaine, for which Santiago paid her $2,200. On one of the above occasions of a purchase of cocaine from Morales, while in the licensed premises, Morales had conferred with Anthony Bilbao. In the course of that conference, Bilbao told Morales to be careful to whom she sold because "you don't know him", meaning Santiago. In the course of an investigation in the license premises on November 28, 1976, a bottle of non-tax-paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered in the licensed premises, which bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid. The size of the bottle was 2,000 cc.
Recommendation Based upon the violations as established in the hearing on the notice to show cause, it is recommended that the license no. 23-1901 held by Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, be revoked. DONE AND ENTERED this 24th day of February, 1977, in Tallahassee ,Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Michael B. Solomon, Esquire Division of Beverage Theodore M. Trushin, Law Office The Johns Building 420 Lincoln Road, Number 600 725 Bronough Street Miami Beach, Florida 33139 Tallahassee, Florida 32304 Nathaniel Barone, Esquire 777 N.E. 79th Street Miami, Florida 33138
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, B & K Restaurant, Inc., d/b/a Nipper's Restaurant (Respondent) held Alcoholic Beverage, Special Restaurant License No. 60-02856 SRX (SRX License). Respondent's SRX License was issued on July 7, 1988. Respondent's SRX License requires Respondent to maintain, among other things, 2,500 square feet of serving area, a minimum of 150 seats for seating, and 51 percent of gross revenue from food and non-alcoholic beverages sales. Respondent has a president, Arthur Barakos, who is a 51 percent shareholder. On September 30, 1996, a special agent of the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner) performed an SRX License inspection of Respondent. Petitioner's agent requested Barakos to produce, among other things, Respondent's last three months of alcohol and food records, z-tapes,2 guest receipts, and ledger books, if any. He was unable to produce the requested records, indicating that his accountant had possession of them. Petitioner's agent reminded Barakos that, as a requirement of the SRX License, the records must be maintained on Respondent's premises. She informed him that she would return at a later date to review the requested records. On October 8, 1996, Petitioner's agent returned to Respondent to perform the SRX License inspection. She requested to review the same records. As before, Barakos informed Petitioner's agent that he did not have the requested records. Barakos indicated to Petitioner's agent that the only records that he maintained were guest checks which had credit card charges; he did not maintain other guest checks or z-tapes. Further, he indicated that his procedure was to copy the information from z-tapes and guest receipts on separate sheets of paper, referred to as sales sheets, and to provide his accountant with the sales sheets. Respondent's accountant performs a "compilation" on a monthly basis of monthly sales from information provided to her by Barakos. Monthly, the accountant meets with Barakos and obtains from him sales sheets showing daily receipts and total sales per day for the entire month. Also, Barakos provides the accountant with bank statements, purchase orders, stubs from guest checks with credit card charges and, occasionally, z-tapes. At times, the accountant obtains some of the information over the telephone from Barakos. She inputs the information from the sales sheets on computer. From the information provided, the accountant totals the daily receipts and computes sales tax. Afterwards, she returns to Barakos all of the items that he provided to her. The accountant is unable to verify or certify the accuracy of the monthly sales records. At the inspection, Barakos did provide Petitioner's agent with sales sheets. However, the sales sheets failed to differentiate between food and alcoholic beverages. Without the requested records which are the original documentation, no verification of food and alcohol revenue could be made by Petitioner's agent. Therefore, she was unable to determine whether 51 percent of Respondent's gross revenue was from food and non-alcoholic beverages sales. Further, regarding maintaining past records, Barakos had maintained his almost nine years of records, including z- tapes, in boxes located in a shed. He discarded the boxes of records after they got wet and became moldy, not believing that he would ever be audited by Petitioner. Barakos discarded the records without improper motive. Because he had discarded the records, Barakos was unable to produce them to Petitioner's agent. At no time material hereto did Petitioner receive from Respondent a request to maintain its records at a location other than on Respondent's premises. Additionally, at the inspection, Petitioner's agent inspected Respondent's seating. She found Respondent not to be in compliance with the required minimum seating of 150 seats, having only 125 seats. Barakos indicated that he would add the additional seats without delay to bring Respondent into compliance. Further, Petitioner's agent inspected Respondent's square footage. She found Respondent to be in compliance with the minimum square footage requirement of 2,500 square feet.
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: Imposing a $1,000 civil penalty against B & K Restaurant, Inc., d/b/a Nipper's Restaurant; and Revoking the Alcoholic Beverage Special Restaurant License of B & K Restaurant, Inc., d/b/a Nipper's Restaurant, i.e., License No. 60-02856 SRX without prejudice to obtain any other type license, but with prejudice to obtain another SRX special license for 5 years, with the revocation being suspended under terms and conditions that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco deems appropriate. DONE AND ENTERED this 16th day of June, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1997.
The Issue Whether Respondents' alcoholic beverage license should be disciplined for the reasons stated in Petitioner's Notice to Show Cause dated September 14, 1982.
Findings Of Fact Based on the evidence presented, the following facts are determined: The Long Branch was operating under DABT License No. 74-878 in License Series 4-COP-SRX. This type of license requires food and nonalcoholic beverage sales to constitute at least 51 percent of all sales. Audit of the Long Branch's records, which were examined on a month-by- month breakdown of the sales for the period July 1 1981, to July 1, 1982, showed food and non- alcoholic beverage sales at 7.7 percent and alcoholic beverage sales at 92.3 percent of total sales. For the period July 1 through July 27, 1982, the ratio was 4.3 percent to 95.7 percent. At no time during the more than one year period audited did the food sales reach the required 51 percent.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondents' License No. 74-878 be revoked. RECOMMENDED this 31st day of March, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31st day of March, 1983. COPIES FURNISHED: Thomas M. and Sandra J. Spera Long Branch 600 South Yonge Street Ormond Beach, Florida Mr, Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue presented here concerns the entitlement of Wiley Ulee Pridgen to transfer the beverage license which be owned to the entity, Adult World, Inc., a corporation.
Findings Of Fact Pursuant to an agreement entered into between the parties in the person of their counsel, made on September 8, 1980, the date for hearing in this cause, and in view of the written Stipulation which consummated the purposes of that agreement, the following facts are found: Wiley U. Pridgen was served with official notice that charges would be filed against him on December 10, 1979. On December 21, 1979, Wiley U. Pridgen filed an application with Respondent's Orlando District Office for transfer of ownership of his beverage license to Adult World, Inc., a corporation. On March 6, 1980, Wiley U. Pridgen was notified by the Director of the Division of Alcoholic Beverages and Tobacco that his application for transfer of ownership had been disapproved for the reason that administrative action is pending and undetermined against the subject licensee pursuant to Florida Statute 561.32. On March 17, 1980, a copy of the formal administrative charges were served on Wiley U. Pridgen. On August 8, 1980, Charles C. Adams, Hearing Officer, Division of Administrative Hearings, entered an order dismissing the instant Notice to Show Cause with leave to refile. On August 25, 1980, formal charges were served upon Petitioner in the form of a Notice to Show Cause after affording a hearing to Wiley U. Pridgen under Florida Statute 120.60(6).
Recommendation It is RECOMMENDED that the Petitioner, Adult World, Inc., d/b/a Strip World Topless Entertainment, be denied its request to have the ownership of License No. 58-1278, Series 2-COP, transferred from Wiley U. Pridgen to Adult World, Inc. DONE AND ENTERED this 7th day of October, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact By Stipulation filed September 11, 1986, the parties agreed to findings of fact 1-11. Donna Sawyer filed a preliminary application to participate in the state lottery for liquor license on January 20, 1984, on Department of Business Regulation form No. 747L. On September 18, 1984, Donna Sawyer was notified by Respondent that she had been selected in the lottery held on September 12, 1984, to be eligible to apply for a state quota liquor license. That on or about November 2, 1984, Donna Sawyer, acting through her wholly owned corporation, Sarasota County Liquors, Inc., filed a sworn "application for Alcoholic Beverage License" (Department of Business Regulation Form No. 700L), with the Division of Alcoholic Beverages and Tobacco. That application included a description of a location which was to be the licensed premises. A Personal Questionaire, Department of Business Regulation Form 710L, was also included by Petitioner with said application. The license application was denied by Respondent on March 8, 1985. The grounds for the denial as stated in the denial letter were Petitioner's failure to provide: (1) proof of right of occupancy to the premises Petitioner was seeking to license; (2) verification of financial investment; (3) business name, and (4) sketch of the premises affixed to the application. On April 10, 1985, Sandra Allen, Esquire, acting on behalf of Petitioner, requested an administrative hearing in order to contest the March 8, 1985, denial of the subject license. Joseph Forbes, Esquire, of Gainesville, Florida, was then retained by Petitioner to resolve the denial of the requested license, which was then pending before the Director of the Division of Alcoholic Beverages and Tobacco, as an informal administrative proceeding, pursuant to Section 120.57(2), Florida Statutes. In this capacity, Forbes, among other things filed a Motion for Continuance and Stipulation in this case attached to a June 6, 1985 cover letter. Forbes thereafter reached an agreement in the informal proceeding with Thomas Klein, Esquire, then counsel of record for Respondent, evidenced by letter dated October 1, 1985, which in its relevant portions indicated: This is to continue our telephone conversation of October 1, 1985, in which the following was discussed and agreed upon: Sarasota Liquors - your client will have 45 days from the date of this letter to cure the defects set forth in the March 8, 1985 letter of denial. Please direct your client to respond to the Tallahassee office. In order to rectify the original deficiencies causing the license denial, Petitioner re-filed an Application for Alcoholic Beverage License, Department of Business Regulation Form 700L, including exhibits, with Respondent, on or about November 13, 1985. Petitioner's re-filed license application was denied by Respondent on February 19, 1986, for two reasons: (1) "Application incomplete as applicant does not have right of occupancy to the premises for which she is seeking to license," and (2) "Division is unable to fully investigate applicant's financial documentation." On or about November 4, 1985, while searching for a location to submit as the licensed premises, in the re-filed application of November 13, 1985, Donna Sawyer and Ocie Allen met with Alton Allen at 258 S. Tamiami Trail, Sarasota, Florida, who was an agent for Walter Spector, owner of several retail store spaces at that address. Ocie Allen, acting on behalf of his corporation, Ft. Myers A & T Corporation, entered into a lease for a store at 258 S. Tamiami Trail, Sarasota, Florida. On or about November 4, 1985, Ocie Allen, acting on behalf of his corporation Ft. Myers A & T Corporation, purportedly subleased the premises at 258 S. Tamiami Trail, Sarasota, Florida to Petitioner. That Petitioner had submitted a letter dated November 4, 1984, signed by Jim Irey, as President of Florida Home Equity of Lee County, Inc., which is attached to the November 13, 1985 application, which stated that certain financial support would be available to the subject alcoholic beverage sales contemplated by Petitioner. That as a result of the investigation following the November 13, 1985 application, Respondent was "unable to fully investigate applicant's financial documentation," since Respondent's agents were unable to locate Jim Irey or his company at the address indicated on the November 4, 1984 letter. Based upon the evidence presented, the following additional findings of fact are made: Donna Sawyer's preliminary application to participate in the state lottery for a quota liquor license included instructions to the applicant that it was the first part of a two part application and that the second part would require proof of occupancy for the premises to be licensed. The second part of the application was that license application filed with the Division of Alcoholic Beverages and Tobacco on November 2, 1984, and again on November 13, 1985. As part of the notification that she was eligible to apply for a state quota liquor license, Donna Sawyer was advised that she had 45 days to file a full and complete application and that if she failed to do so, this failure would be deemed as a waiver of her right to file for a new quota liquor license. The letter also advised her that the Division had 180 days from the date of the drawing to act upon her application. The Petitioner's first quota liquor license application was denied on March 8, 1985. March 8, 1985, was within 180 days of the applicable lottery drawing held on September 12, 1984. The agreement of the parties to resolve the March 8, 1985, denial of the subject license evidences an tacit agreement by the parties to waive any applicable time limits existing at that time in order to allow the Petitioner to resubmit a corrected application within 45 days as allowed by the Thomas Klein letter of October 1, 1985. The Division investigated the Petitioner's second application and determined that the applicant did not have a right of occupancy to the premises sought to be licensed, 258 Tamiami Trail, Sarasota, Florida, because Petitioner only had a purported sublease for the subject premises from Ft. Myers A & T Corporation. Ft. Myers A & T Corporation had obtained a lease for the property on November 4, 1985, from Walter Spector, deceased at the time of the administrative hearing. Said lease between Walter Spector, lessor, and Ft. Myers A & T Corporation, lessee, provided that subleases must be approved by the lessor and be in writing. The Petitioner did not produce evidence of written authorization by Walter Spector to allow Ocie Allen or Ft. Myers A & T Corporation, Inc., to sublease the subject premises to the Petitioner or to any other person. The only evidence of such authorization was the hearsay statement by Ocie Allen that Walter Spector had orally given such authorization. Furthermore, Mr. Alton Allen, then agent for Mr. Spector for leasing this property testified he had no knowledge that Mr. Spector was ever informed of a sublease. Therefore it is found that the sublease violated a material provision of the underlying lease from Walter Spector to Ft. Myers A & T Corporation. Mr. Ocie Allen, agent for the Petitioner and Donna Sawyer, testified and it is found that there was no intention for the Petitioner to operate an alcoholic beverage license at the 258 Tamiami Trail location. Petitioner's November 13, 1985, license application was also denied on February 19, 1986, for: Application incomplete as . . . the Division is unable to fully investigate applicant's financial documentation. This denial was due to the Division's agents being unable to verify the availability of financial funding from Florida Home Equity of Lee County, Inc. The Petitioner had submitted a November 9, 1984 letter from that corporation in its November 13, 1985 license application offering certain funding. Upon checking phone directories and making attempted telephone calls to the source named in that letter, the Division was not able to find the named business as source of funding. The Division further investigated Florida Home Equity of Lee County, Inc. as an alleged source of funding by sending an agent, Robert B. Baggett, to the address supplied by the applicant in a November 9, 1984 letter from Florida Home Equity of Lee County, Inc., only to find that no such business was located there and no neighbors knew of a new location. Sandra Allen, Esquire, testified that the source of the funding at the time of the second application was a new company run by the same person who was behind Florida Home Equity of Lee County, Inc., which was named as the source in the November 9, 1984 letter. However, this new company's name and address and verification of continued financial support to the Petitioner could not reasonably be determined by the Division and no evidence was presented that the Division had ever been provided with said new company's name or location prior to the denial of the second license application. Contradictory testimony was presented by Lt. Ewing and Sgt. Mills as to the existence of a policy requiring a "14 day" deficiency notice letter to applicants. It is clear that that policy was not recognized in the office supervised by Sgt. Mills. It was also not established that Lt. Ewing had the authority to set or enunciate policy for the Division.
The Issue Whether petitioners' application for approval of a change in corporate officers of an existing corporate licensee should be granted, or denied on the ground that a disqualified person--a convicted felon--is interested either directly or indirectly in the business.
Findings Of Fact On or about February 18, 1980, Richard Zabel and Anita Grizaffi ("applicants") negotiated for the purchase and sale of the stock of Cowboy's, Inc., holders of beverage license No. 16-6859 SRX. On that date, Richard Zabel and Anita Grizaffi, his sister, entered into a contract for the sale and purchase of all of the outstanding stock of the corporation called Cowboy's, Inc. The purchase price of said stock was to be $300,000. The closing for the purchase of the stock ownership in Cowboy's, Inc., was scheduled to be held in Fort Lauderdale on or about April 23, 1980. Originally, the applicants intended to purchase the stock by borrowing $300,000 entirely from Bern Builders, Inc. Bern Builders, Inc., is solely owned and operated by Anita Grizaffi and Bernard Grizaffi. Prior to the closing and in anticipation of borrowing the purchase price entirely from Bern Builders, Inc., applicants filed with DABT their Notice of Stock Ownership and Certificate of Incumbency showing that they were the new officers, directors, and stockholders of the licensee corporation. In addition, applicants filed with DABT their personal data questionnaires and disclosed in the appropriate block that they intended to borrow the $300,000 from Bern Builders, Inc. Just prior to the scheduled date of the closing, the sellers informed the purchasers that for reasons totally unrelated to any matters pertinent to this proceeding, they would not close the deal. Applicants and their corporate attorney from Chicago, Irv Ribstein, forced the sale of the stock and the closing took place on April 23, 1950. In order to close the deal and since it was impossible for the applicants to receive the $300,000 from Bern Builders, Inc., as originally hoped, it was necessary for them to generate sufficient funds from other sources to pay the sellers. Those funds were obtained and then repaid in full in the following manner: Anita Grizaffi borrowed $150,000 from the Commercial Bank of Chicago. This $150,000 obligation was paid in full from the proceeds of the ownership interest of Anita Grizaffi in a yacht. The sale of this yacht took place pursuant to a Brokerage Purchase and Sales Agreement made April 14, 1980. Anita Grizaffi borrowed $100,000 from the Chicago bank collateralized by her ownership of Certificates of Deposit. This $100,000 was repaid by Anita Grizaffi. A personal loan from Bern Builders, Inc., was obtained in the amount of $50,000. This loan was repaid by the applicants on July 1, 1981. Subsequent to the closing and the original filing of the Certificate of Incumbency and the personal data questionnaires showing the financial arrangements, DABT notified the applicants that while it was not taking final action at that time, it was DABT's intention to deny the change of corporate officers because it believed that there was a person either directly or indirectly involved in the beverage license who was statutorily disqualified. Prior to DABT sending out its official notification of its denial of the change of corporate officers, the applicants filed with DABT the supplemental financial information described in paragraph 8. It showed how the purchase of the stock actually was consummated. DABT, on August 8, 1980, after receiving this supplemental financial information, sent its final agency action letter denying the applicants' request for a change of corporate officers. The basis for DABT's denial of the application was that it believed that the husband of Anita Grizaffi, Bernard Grizaffi, was a convicted felon and that he was directly or indirectly involved in the beverage license. The parties agree that a loan of $50,000 to the applicants from a corporation which had as one of its officers, directors, and stockholders, a convicted felon, would have given Bernard Grizaffi a direct interest in the beverage license in violation of the applicable provisions of the Beverage Law when that transaction occurred. After the applicants had filed the additional supplemental information and DABT had denied the change of corporate officers, a deposition was taken in Tallahassee of Barry Schoenfeld, the Chief of Licensing for DABT. At said deposition, each source of financial investment utilized by applicants to purchase all of the stock of Cowboy's, Inc., was disclosed and thoroughly considered. Every dollar of the total investment was accounted for and through cancelled checks, every dollar lent to applicants by Bern Builders, Inc., was shown to have been paid back in full solely from' the proceeds of the operation of Cowboy's, Inc., and that no outstanding financial obligation existed to Bern Builders, Inc., or Bernard Grizaffi, individually. At the deposition of Mr. Schoenfeld, affidavits from bankers in Chicago were submitted showing conclusively that a total of $600,000 would have and could have been loaned to Anita Grizaffi, individually, secured and collateralized by her independent financial interests" at any time during the year of 1980. Bernard Grizaffi executed an affidavit stating that it was never his intention to have any interest whatsoever in the beverage license or the stock of Cowboy's, Inc.; that he had not, was not, and would not exercise any dominion and control whatsoever in the operation of Cowboy's, Inc.; that he was not owed any monies whatsoever by Cowboy's, Inc.; and that he would not be entitled to any benefit whatsoever from the operation of Cowboy's, Inc. On May 16, 1980, the sworn statements of four principal managers and employees of Cowboy's, Inc., who were employees prior to, during, and subsequent to the actual closing of the sale and purchase of the stock of Cowboy's, Inc., were taken. Each manager or employee categorically stated that Bernard Grizaffi had no interest whatsoever in Cowboy's, Inc. ; that he had absolutely no power to control Cowboy's, Inc.; that he had never exercised any dominion or control in Cowboy's, Inc.; that they would only take orders from the applicants; and if Bernard Grizaffi ever tried to give them directions or orders, they would first check with applicants prior to doing anything. The only times Bernard Grizaffi had ever been observed in the licensed premises were on obvious social occasions and only on a couple of occasions. On August 22, 1981, the applicants wrote to DABT and indicated that they had and could further demonstrate their financial independence from the otherwise disqualified person. In reply to that letter, DABT clearly demonstrated its policy of permitting changes of corporate officers under like circumstances. Those documents state in applicable part: My client is in a position to show the Division [DABT] that she can and could have, at the time of the actual purchase of the stock occurred finance(d) the entire pur- chase solely from her signature loan. The fact that she chose not to do so at the time of the closing has previously been explained to the Division [DABT] as solely the result of the last minute exigencies necessitated by the sellers at the time of the closing of the deal. My client is prepared to provide to the Division [DABT] affidavits from various bank officers in and around the Chicago area who will attest that each of them would have lent Mrs. Grizaffi, on her signature only, and collateralized by her interest solely, suf- ficient funds to finance the purchase of the stock and the corporation holding the license. At present we possess letters from at least three banks who have indicated that they would have and would today lend to Mrs. Grizaffi in the manner herein contemplated, an amount in excess of $600,000. In addition7 I am prepared to provide to the Division [DABT], an affidavit of the husband that he never intended nor does he have today, nor has he had at any time dur- ing these proceedings, any interest, directly or indirectly, in either the financial acqui- sition of the stock or any right to any financial remuneration from the proceeds of the business. Nor does he have any right nor desire to, nor has he at any time dur- ing these proceedings, run the business. The only connection between himself and the Cowboy's, Inc. is his marital status. (Memorandum from Dennis E. LaRosa, Staff Attorney, to Mary Colson, Assistant Chief of Licensing.) Re: Cowboy's, Inc. In reference to Mr. Curtis's letter to you of August 22, 1980, my opinion is that if Mrs. Grizaffi can demonstrate financial independence of her husband in the manner and method therein described, then the Divi- sion may consider issuing the license. Also, an affidavit from Mr. Grizaffi concerning his interests and intentions would be appro- priate. Please advise if further opinion is required. (From note dated September 2, 1980, from Mary Colson to Barry Schoenfeld, Chief of Licensing.) I agree with Dennis--It would not be the first time we have accepted such documen- tation--your comments, please. Whereupon, applicants, owners of 100 percent of the stock of Cowboy's, Inc., requested a formal administrative hearing challenging the authority of DABT to deny their application for change of corporate officers. Applicants, each individually, meet all of the requirements and qualifications to hold a beverage license.
Recommendation Based on the foregoing, it is RECOMMENDED: That petitioners' application to change the corporate officers of Cowboy's, Inc., be granted. DONE AND RECOMMENDED this 15th day of March, 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 March, 1982. COPIES FURNISHED: Charles L. Curtis, Esquire 1177 Southeast Third Avenue Fort Lauderdale, Florida 33316 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard A. Boyd Division of Beverage Post Office Box 8276 Lauderhill, Florida 33310 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 16-637 S, Series 4-COP, be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 5th day of August, 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 5th day of August, 1983.
The Issue Pursuant to a Notice to Show Cause issued November 22, 1982, the Respondent was charged with two violations of the beverage laws of this state. Respondent was charged with allowing a person under 19 years of age to consume alcoholic beverages on her licensed premises. Respondent was also charged with continuing to sell alcoholic beverages after discontinuing the sale of full course meals in violation of Florida Statute 561.20(3)(1981) and Rule 7A-3.15, Florida Administrative Code. At the formal hearing, Petitioner called as witnesses Mr. W. R. Wiggs, a beverage officer for the Division of Alcoholic Beverages and Tobacco; Mr. James Pistole, a deputy for the Hillsborough County Sheriff's Department; and Joe Circhirillo, also a deputy for the Hillsborough County Sheriff's Department. Respondent testified on her own behalf and called as witnesses Kathryn Singer, James D. DeBusk, and Heidi Buzbee. Petitioner offered no exhibits and Respondent offered and had admitted into evidence one exhibit consisting of four photographs. Counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted herein, they were considered and determined by the Hearing Officer to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact At all times material hereto, Respondent held Beverage License No. 39- 00771, SRX Series 4-COP, issued to Sharon's Surf-n-Turf, located at 111 East Shell Point Road, Ruskin, Florida. During the course of the hearing, it was stipulated by and between the parties and it is now found that the beverage referred to in Count I of the administrative complaint was an alcoholic beverage. On October 29, 1982, W. R. Wiggs, an investigator for the Division of Alcoholic Beverages and Tobacco, went to the licensed premises of Sharon's Surf- n-Turf Restaurant and Lounge. He arrived at approximately 9:30 p.m. and the lounge area was full of patrons. Before entering the licensed premises, Investigator Wiggs observed a sign outside the restaurant which reflected that the restaurant was open from 11:00 a.m. to 10:00 p.m. and there was live entertainment from 9:30 p.m. to 3:00 a.m. Beverage Officer Wiggs was accompanied by Beverage Officer Miller. Upon entering the licensed premises, Wiggs and Miller sat at the bar and each ordered a Michelob beer. Beverage Officer Miller asked if he could order a full course meal and the bartender responded that the kitchen was closed. Beverage Officers Miller and Wiggs were in the licensed premises approximately one and one-half hour and observed no food being served. The patrons in the lounge were consuming alcoholic beverages. The lights were not on in the restaurant portion of the licensed premises, and the door to the restaurant was locked. Neither Officer Wiggs nor Officer Miller checked the kitchen to determine if it was in fact closed. While in the licensed premises, Officer Wiggs, along with Deputy James Pistole, of the Hillsborough County Sheriff's Department, observed a young lady named Tammy Almond, sitting at one of-the tables and consuming an alcoholic beverage. She appeared to be younger than 19 years of age. After arresting Ms. Almond, it was determined from her driver's license that she was, in fact, 18 years of age, having a date of birth of March 28, 1964. When Officer Wiggs and Deputy Pistole arrested Ms. Almond, she stated that the drink which was seized belong to someone else and she was sipping out of it. There was no evidence that Tammy Almond had purchased the drink or that she had been personally served the drink. At the time Tammy Almond was arrested, all other persons in the lounge who appeared to be possibly underage were asked for identification. Tammy Almond was the only minor in the licensed premises that evening. Tammy Almond had previously been married and was now divorced. The Respondent and her employees were aware of her prior marriage. On this evening, James D. DeBusk was checking identification at the door to the licensed premises. He had checked Tammy Almond's identification and it had reflected that she was two or three months over 19 years of age. The identification appeared to be a Florida driver's license. There was nothing suspicious about the identification. The licensed premises always has a doorman checking identification on Wednesday night through Saturday night. The bartenders and waitresses would also check identification of patrons. The licensed premises is divided into a restaurant/ dining room area and a lounge. The lounge has tables, chairs, a dance floor, and bandstand. Food is served in the dining room area as well as the lounge area. Menus for food are posted on the wall just inside the doorway of the lounge. The Respondent, prior to and at the time of the incident involving Tammy Almond, had a strict policy against allowing minors to consume alcoholic beverages on the licensed premises. On the nights when the lounge is busiest, Wednesday through Saturday, a doorman is on duty to check the identification of persons entering the lounge. Waitresses and bartenders were instructed to check the identification of persons who appeared to be younger than 19 years of age. The Respondent's policy was to require two acceptable forms of identification whenever a person produces or shows a questionable identification. If they cannot produce such identification, they are not permitted to enter the licensed premises. The restaurant and lounge are managed and supervised by the Respondent. At the time of Tammy Almond's arrest, the Respondent was in the kitchen area of the licensed premises training a new cook. Food is served at the Respondent's licensed premises from 11:00 a.m. to closing time. On the evening of October 29, 1982, the kitchen was open and food was actually ordered. At least four meals of steak and eggs were ordered and served after midnight. The licensed premises is primarily a restaurant operation and serves several different types of full course meals. These full course meals were available on the evening of October 29, 1982.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found not guilty of the violations charged in the Notice to Show Cause and that such Notice to Show Cause be dismissed. DONE and ENTERED this 27th day of June, 1983, in 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 27th day of June, 1983. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Paul S. Carr, Esquire Post Office Box 965 Ruskin, Florida 33570 Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
