The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the amended notice to show cause dated November 27, 1990, and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent, Jose Julio Alves, owns or holds an alcoholic beverage license for a business known as Royal Garden which is a restaurant located at 1257 U.S. 1 South, Rockledge, Florida 32955. The license for the premises, #15-01801 2-COP, was obtained in 1989. Respondent is originally from Portugal, but he has resided in Brevard County for several years. Respondent speaks and understands English and has successfully handled the business operation of the Royal Garden since 1989. In April of 1989, Respondent executed a form entitled "APPLICATION FOR AND CERTIFICATION OF A PERMIT TO IMPORT ALCOHOLIC BEVERAGES INTO FLORIDA". That form represented that the alcoholic beverages to be imported had been legally purchased outside the U.S.A. by Respondent personally, and that the shipment to his Florida residence was for his personal consumption. Along with that application Respondent submitted the appropriate excise tax amount to cover 24 cases of red port wine. The subject wine bore the name "Vintage Port" 1985. Accordingly, pursuant to Section 561.11 and 562.15, Florida Statutes, together with Rule 7A-2.10, Florida Administrative Code, the Department granted Respondent permission to bring the beverages into the State of Florida and acknowledged that the excise taxes on the beverages had been paid. On or about August 8, 1990, Agent Rigsby conducted an inspection of the Royal Garden restaurant and was accompanied by the Respondent. During that inspection, Agent Rigsby found and seized 11 bottles of Vintage Port 1985 wine which were located within the restaurant's walk-in cooler. Additionally, Agent Rigsby seized two empty bottles bearing the same labels from a shelf outside the restaurant's office. Since the bottles did not bear indications that taxes had been paid, the Department charged Respondent with having possession of alcoholic beverages for which the taxes had not been paid and for purchasing same from an unlicensed vendor. According to Respondent, all taxes due and payable on the wine described in paragraphs 3 and 4 had been properly paid at the time of its importation into Florida. Respondent acknowledged that the wine was not purchased from a licensed vendor since he admitted that the port seized on the Royal Garden premises was from the cases he had imported for personal consumption. Why and how the wine made its way from Respondent's residence to Respondent's restaurant is less than clear. According to Respondent, the wine was stored in the restaurant's walk-in cooler and was only used for cooking or as a complimentary drink to friends or special customers. Respondent maintains that the wine was never sold to customers.
Recommendation Based on the foregoing, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order finding the Respondent guilty of violating Section 561.14(3), Florida Statutes, and imposing an administrative fine in the amount of $500.00, in accordance with Section 561.29(3), Florida Statutes. RECOMMENDED this 29th day of July, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1991. COPIES FURNISHED: Robin L. Suarez Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 George B. Turner 65 E. Nasa Boulevard, Suite 106 Melbourne, Florida 32901 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 and 2 are accepted. Paragraph 3 is rejected as irrelevant. Paragraphs 4 and 5 are accepted. Paragraph 6 is rejected as hearsay or irrelevant. Paragraph 7 is rejected as hearsay or irrelevant. Paragraph 8 is accepted. With the deletion of the word "luxury" paragraph 9 is accepted. Paragraphs 10 and 11 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: With regard to paragraph 1 it is accepted that Agent Rigsby conducted an investigation of the Royal Garden in August, 1990. Otherwise, the paragraph is rejected as irrelevant. Paragraph 2 is rejected as irrelevant. Paragraphs 3 through 5 are accepted. Paragraph 6 is rejected as contrary to the Respondent's admissions. The Respondent admitted he gave the wine to his special customers/friends as a complimentary drink and that such gifts sometimes occurred incidental to their meals at the restaurant. Paragraph 7 is rejected as hearsay, argument, or irrelevant. Paragraph 8 is rejected as irrelevant. Paragraphs 9 and 10 are rejected as irrelevant.
Findings Of Fact The Respondent, Acobos, Inc., d/b/a Christo's Cafe, is the holder of alcoholic beverage license number 62-03732SRX, for licensed premises at 411 First Avenue North, St. Petersburg. In September, 1987, and particularly on September 11, 17, and 25, 1987, the Respondent's licensed premises were open for business, including the sale of alcoholic beverages under the authority of the Respondent's license. On at least three separate occasions--on September 11, 17, and 25, 1987,--the Respondent was selling alcoholic beverages at the licensed premises at times when the service of full-course meals had been discontinued.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking the alcoholic beverage license of the Respondent, Acobos, Inc., license number 62-037325RX. RECOMMENDED this 31st day of October, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1988. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Tim Christopoulos, President Acobos, Inc., d/b/a Christo's Cafe 411 First Avenue North St. Petersburg, Florida 33701 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 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 Sections 301 and 302 of the DABT's policy manual and form DBR 700L are unpromulgated rules which cannot be used as a basis for the DABT's decision to refuse three applications for alcoholic beverage licenses submitted by the Petitioners. Whether the agency's requirement that an applicant have county zoning approval before a state alcoholic beverage license will be granted is an invalid exercise of delegated legislative authority, under Chapter 120, Florida Statutes. Whether form DBR 700L is an invalid rule because of DBR's failure to file forms with the Secretary of State.
Findings Of Fact The joint stipulation of facts entered into by the parties on December 21, 1988, are adopted as the findings of fact in this proceeding. A copy of the stipulation is attached and made part of this Final Order.
Findings Of Fact On April 26, 1982, the Petitioner Dania Bank, filed a request with the Respondent Department of Business Regulation, Division of Alcoholic Beverages and Tobacco to record a lien holder's interest against alcoholic beverage license 16-15 issued to the Respondent Chula, Inc., doing business as Chalet Ole and Chula Liquors. The lien was created on July 3, 1981, and filed with the Secretary of State on August 10, 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Division of Alcoholic Beverages and Tobacco denying the Petitioner Dania Bank's request to record a lien against alcoholic beverage license number 16-15. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 October, 1983. COPIES FURNISHED: Richard E. Whitney, Vice President The Dania Bank 255 East Dania Beach Boulevard Dania, Florida 33004 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, the Respondent was the holder of a valid alcoholic beverage License No. 58-1090, Series 2APS. Respondent is a corporation which owns and operates several convenience stores in the Orlando, Florida area. On February 19, 1983, David Aaron Morgan purchased twelve cans of Budweiser beer at the Respondent's "Pore Jack's store located at 2233 Goldenrod Road, in Orlando, Florida. The purchase was made from a Mr. Claude P. Gillenwater, a clerk and employee at the store. Mr. Morgan had purchased beer from Mr. Gillenwater on at least three (3) prior occasions. At the time of his first purchase of beer from Gillenwater, David Morgan was required to show identification. He showed Mr. Gillenwater a restricted driver's license on which the year of birth appeared to be 1963. Mr. Morgan's date of birth is July 1, 1965. On February 19, 1983, Mr. Gillenwater did not check Mr. Morgan's identification. Mr. Morgan had never informed Mr. Gillenwater that he was underage. He knew Mr. Gillenwater would not serve him beer if he knew he was underage. The information on the restricted license was unclear because the license had been partially mutilated in the washing machine in the Morgan home. David Morgan is in the eleventh grade at Colonial High School. He is 5'8" tall and weighs approximately 160-170 pounds. He wears a mustache and has for over a year. After purchasing the beer, David Morgan left the store and walked to a car in the parking lot where two friends were waiting in a car. Mr. Morgan was observed leaving the store with the beer by Beverage Officers Homer Kenneth Rigsby and Claude E. Cruz. The beverage officers followed Mr. Morgan and his friends as they drove away from the store and stopped them a short distance away. Mr. Morgan was placed under arrest and taken to his home, where his parents were informed of the purchase of beer. It was then verified by a driver's license produced by Mr. Morgan's mother that he was, in fact, not of legal age to purchase alcoholic beverages. Prior to the February 19, 1983, incident, Mr. Gillenwater had been an employee with Respondent for six (6) years. He worked different shifts on an as need basis and the Respondent had never received any complaints regarding the performance of his duties. At the time of his initial employment, Mr. Gillenwater received training and instruction regarding his duties and specifically his responsibilities in assuring compliance with the beverage laws. After his initial training , Mr. Gillenwater was required to work under the supervision of the manager of the store or an experienced cashier until he became familiar enough with the policies and procedures of the company. All employees, and specifically Mr. Gillenwater, were instructed in checking identifications and in the Respondent's strict policy against sales of alcoholic beverages to minors. Mr. Gillenwater was fired by Respondent as a result of this incident. The store in question had a sign posted informing customers that they must be 19 years of age to purchase alcoholic beverages and that a Florida driver's license would be required as identification. (See Respondent's Exhibit 1.) There was also a sign reflecting the date prior to which a customer had to have been born in order to be able to purchase alcoholic beverages. Respondent's employees were instructed to require a driver's license as identification each time a purchase of alcoholic beverages was made by anyone who appeared under 30 years of age. They were required to do this until they became familiar with the particular individual and recognized him on sight as a person who had previously provided proper identification. There was no evidence that Respondent had had any previous violations at the store involved or at any of its other stores. During most of the hours the store is open, a manager or assistant manager is on duty supervising the cashiers. Respondent had no notice or information that any of its employees were failing to follow its procedures regarding the requirement for proper identification.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed. DONE and ENTERED this 28th 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 28th day of June, 1983. COPIES FURNISHED: Aldo Icardi, Esquire Post Office Box 879 Winter Park, Florida 32790 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Executive 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
Findings Of Fact Respondent is the holder of Beverage License No. 26-751 permitting the sale of alcoholic beverages from her store at 1155 Jessie Street, Jacksonville, Florida. This business is a convenience store known as Agel Grocery. Respondent's husband has been co-owner of this business since the outset, and participates in its operation and management. When the Morenes applied for an alcoholic beverage license in June, 1980, they believed Frank Morene was ineligible and intentionally omitted his name from the application.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is That Respondent be found guilty of filing an incorrect application in violation of Subsection 561.17(1), Florida Statutes (1979). It is further RECOMMENDED: That Respondent's Alcoholic Beverage License No. 26-751 be suspended until Respondent files and secures approval of a correct application or demonstrates that any direct or indirect interest of Frank Morene in the licensed business has been removed. DONE and ENTERED this 7th of August, 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 7th day of August, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mrs. Saundra Morene c/o Agel Grocery 1155 Jessie Street Jacksonville, Florida 32206
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.
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 Whether, on four separate occasions, agents, servants, or employees of respondent sold alcoholic beverages to persons under 19 years of age, in violation of Section 562.11, Florida Statutes, as alleged in petitioner's Notice to Show Cause.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 16-2587, Series 2-APS, be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 6th day of May, 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 6th day of May, 1983. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Don Allen, Esquire 600 S.W. 4th Avenue Ft. Lauderdale, Florida 33315 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
