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
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Action and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Café was a restaurant, serving full course meals, and was located at 1599 North State Road 7, Lauderhill, Florida. At all times material hereto, the sole owner of Café was Mary Fernand. On December 18, 2003, Café, through Ms. Fernand, made application for a license from DABT. The type of license applied for was a retail alcoholic beverage license, in particular a special alcoholic beverage license, allowing it to purchase and sell alcoholic beverages. In a section of the application, "SECTION VIII-SPECIAL LICENSE REQUIREMENTS," Ms. Fernand was notified, among other things, that the "Special Alcoholic Beverage License" was "issued pursuant to 561.20(2)(b), Florida Statute [sic] or Special Act and as such we acknowledge the following requirements must be met and maintained: ... DERIVE 51 % OF GROSS REVENUE FROM FOOD AND NON- ALCOHOLIC BEVERAGES. SERVICE OF FULL COURSE MEALS MUST BE AVAILABLE AT ALL TIMES ALCOHOLIC BEVERAGES ARE BEING SERVED." As the person completing the application, Ms. Fernand was required to read, initial, and date Section VIII. A temporary special alcoholic license was issued by DABT to Café on December 18, 2003. The application was approved by DABT on December 19, 2003, and, subsequently, a permanent special alcoholic license was issued by DABT. DABT issued Café license number BEV16-17022 4-COP SRX. The license was held through Ms. Fernand. As a result of having been issued such a license by DABT, Café was and is subject to the regulatory jurisdiction of DABT. DABT conducts periodic audits of all restaurants holding a special SRX license to make sure that the restaurants are complying with the special license requirements. As part of this audit process, special agents from DABT, among other things, conduct announced visits, as well as undercover visits, at the restaurants and request the licensee to submit all necessary records for the audit. A SRX license holder has a continuing requirement to derive at least 51 percent of its gross revenue from sales of food and non-alcoholic beverages. DABT places the burden upon the licensee to show compliance with the SRX license requirements. Furthermore, DABT requires the licensee to keep clear, legible records in English and to submit such records if requested by one of its agents. When DABT requests the licensee to produce the records to establish compliance with the SRX license requirements, but the licensee fails to show compliance through the requested records, DABT determines that the licensee was not meeting the requirements to operate with the SRX license. The proof that DABT considers to establish compliance include monthly sales and purchase records of food and non- alcoholic beverages and sales and purchase records of alcoholic beverages, guest checks, z-tapes, monthly income statements (showing separately the food and non-alcoholic beverage sales), and sales of alcoholic beverages. On July 19, 2004, DABT's Special Agent Trenesa Davis visited Café to request Café to produce the records necessary for an audit under the SRX license. She found Café closed and locked. Special Agent Davis obtained Ms. Fernand's telephone number and contacted her that same day. Special Agent Davis informed Ms. Fernand of the records needed for the audit, and Ms. Fernand indicated that she would provide the requested records on July 21, 2004. However, Ms. Fernand failed to provide the requested records on July 21, 2004. The following day, July 22, 2004, Special Agent Davis again contacted Ms. Fernand by telephone. Ms. Fernand indicated that she would provide the requested records on July 23, 2004. But, again, Ms. Fernand failed to provide the requested records. On July 26, 2004, once again, Special Agent Davis contacted Ms. Fernand by telephone regarding the non-production of the requested records. Ms. Fernand indicated that she was ill, and Special Agent Davis informed Ms. Fernand that she could come to where Ms. Fernand was living and issue her an official notice of what DABT needed, with the compliance date. Ms. Fernand agreed, and Special Agent Davis proceeded to where Ms. Fernand was living. On that same day, July 26, 2004, Special Agent Davis issued Ms. Fernand an official notice to produce certain documents. The notice provided, among other things, that Ms. Fernand had "14 days to produce the following records: Separate records of all purchases and gross retail sales of food and non-alcoholic beverages & alcoholic beverages, Guest checks, cash register tapes, and any other documentation used to determine your food & beverage sales." Furthermore, the notice warned that "Failure to comply may result in administrative charges being filed against your alcoholic beverage license. *COMPLIANCE DATE AUGUST 13, 2004*." The notice was dated July 26, 2004. Ms. Fernand signed the notice. Ms. Fernand received the notice on July 26, 2004. On August 6, 2004, Special Agent Davis received a package from Café, but did not open it. She immediately took the package to DABT's auditor assigned to conduct Café's audit, Ronald Flores. Special Agent Davis opened the package in the presence of Auditor Flores. Inside the package were the following: (1) 11 receipts, dated between May 6 and June 23, 2004, showing purchases of alcohol from another vendor, BJ's Wholesale Club; (2) three blocks of guest checks: block one--numbered from 512402 to 512450; block two--numbered 100703, 100705, 100707- 100709, 100711, and from 100713 to 100750, with the guest checks from 100713 to 100750 being blank; and block three--numbered from 100592 to 100595 and 100632; and (3) 26 loose kitchen tickets, numbered from 84551 to 84570 and from 84572 to 84577. All of the kitchen tickets failed to reflect a date, the name Café or of any restaurant, and food sales. Further, the guest checks reflected only sales of alcoholic beverages; reflected only dates on those numbered 100708 and 100709 ("05-28-04" and "6/4"); and reflected dates ("4/18/04" through "5/31/04") and the name Café on those numbered 512402-512450, with the dates on three checks not being legible. The package contained no other record of food sales or purchases and no record of purchasing alcoholic beverages from distributors. Furthermore, the package contained no record of monthly schedules showing food and non-alcoholic and alcoholic beverage sales. Based on the records presented by Ms. Fernand, Auditor Flores was unable to perform an audit required by Café's SRX license and unable to make a determination as to whether Café met the 51 percent requirement of its license. On August 8, 2004, Special Agent Davis contacted Ms. Fernand by telephone in the presence of Auditor Flores, with the telephone on speaker-phone. Special Agent Davis inquired as to the whereabouts of Café's food and non-alcoholic beverage records. Ms. Fernand responded that she was not aware that Special Agent Davis wanted the food and non-alcoholic records but that she (Ms. Fernand) would provide them by August 13, 2004, which was the original compliance date of DABT's notice to produce records. However, Special Agent Davis did not receive any records from Ms. Fernand until August 16, 2004, three days beyond the compliance date to produce the records. The package received from Ms. Fernand contained three computer-generated documents for Café: an income statement, representing "6 Months Ended June 30, 2004"; a 2004 balance sheet, as of June 30, 2004 and 2003, and a balance sheet of liabilities and stockholders' equity, as of June 30, 2004 and 2003. Reflected at the bottom of each document was the following: "See Accountants' Compilation Report." The income statement reflected for January 1 through June 30, 2004, among other things, the following: food sales in the amount of $8,417.34 and alcohol sales in the amount of $3,039.66, totaling $11,457.00; gross profit in the amount of $5,942.51; total operating expenses in the amount of $23,901.19; and a net loss of income in the amount of $17,958.68. The income statement did not reflect monthly schedules of sales or any source of documents to verify the figures in the statement of income. No document in the package received on August 16, 2004, reflected its source or its creator, and none were signed. However, at hearing, Ms. Fernand admitted that she had prepared the income statement. Moreover, in the package received on August 16, 2004, no food sales and purchase records and no alcohol sales and purchase records were included. Again, based on the records presented by Ms. Fernand on August 16, 2004, as well as August 6, 2004, Auditor Flores was unable to perform an audit required by Café's SRX license and unable to make a determination as to whether Café met the 51 percent requirement of its license. On August 18, 2004, Auditor Flores forwarded to Special Agent Davis a memorandum advising her, among other things, that the records submitted by Café were incomplete to make a determination as to whether Café complied with the "SRX" requirements, that Café needed to provide the register tapes in order to verify sales, and that Café needed to provide monthly sales schedules with a breakdown of food and alcoholic beverage sales. Further, on August 18, 2004, Special Agent Davis issued a notice to Café that DABT intended to file an administrative complaint against it for failure to maintain records, citing the statutory provision, and SRX violations, citing the statutory provisions. The notice was mailed, certified to Café. Ms. Fernand admits that, between December 2003 and March 2004, Café sold food, as it was a "full restaurant," and alcoholic and non-alcoholic beverages; however, no alcoholic beverages were sold in December 2003. Further, she admits that, in December 2003, she had a "get together for a few friends" and a few patrons at Café; and that, in January 2004, a party was held at Café at which alcoholic beverages were sold of which she kept records. Additionally, Ms. Fernand acknowledges that she was aware that she was required to keep records and admits that she kept records of the food sales and alcoholic and non-alcoholic beverage sales. Although she obtained the license from DABT for Café in December 2003, Ms. Fernand did not open Café for business until April 17, 2004, as a grand opening. On June 26, 2004, Ms. Fernand lost access to Café as a result of being closed by the City of Fort Lauderdale. Also, in August 2004, she was evicted by the landlord of the building in which Café was located. Subsequently, she paid the landlord the back rent and was allowed to use the building again. She did not re-open Café until around November 20, 2004, even though the City of Fort Lauderdale notified her around September 7, 2004, that Café could be re-opened. Because of the eviction in August 2004, when Special Agent Davis requested the documents, Ms. Fernand had to request the landlord to go into Café and get the documents for her (Ms. Fernand). Ms. Fernand provided to Special Agent Davis the documents given to her by her landlord. Prior to losing access to the building in which Café was located, during the loss of access, and after re-gaining access, a box containing Café's records was located at Café. At no time, when she did not have access, did Ms. Fernand request the landlord to bring the box to her in order to provide food and beverage records to DABT. At no time, after gaining access to the building or prior to hearing, did Ms. Fernand review the records in the box and provide the requested food and beverage records to DABT.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a final order: Finding that Ran D Vou Café, d/b/a Ran D Vou Café violated Section 561.20(2)(a), Florida Statutes (2003). Finding that Ran D Vou Café, d/b/a Ran D Vou Café violated Section 561.55(3)(b), Florida Statutes (2003). Revoking the SRX license of Ran D Vou Café, d/b/a Ran D Vou Café, with prejudice for Ms. Mary Fernand not to obtain another SRX license for a five-year period, but without prejudice for her to apply for and obtain any other license for which she may be otherwise qualified to hold. DONE AND ENTERED this 24th day of April 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2006.
The Issue The issues in these cases are whether Respondent, Club Manhattan Bar and Grill, LLC, d/b/a Club Manhattan Bar and Grill (Respondent), committed the acts alleged in the administrative complaints dated September 13, 2010, and December 1, 2010, and, if so, what disciplinary action, if any, should be taken against Respondent.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating persons holding alcoholic beverage licenses. § 561.02, Fla. Stat. Respondent is licensed under the Florida beverage law by the Department. Respondent holds a 4COP/SRX special restaurant license issued by the Department with Alcoholic Beverage License No. 68-04347. Ms. Stokes is the licensee of record for Respondent. Consequently, Respondent is subject to the Department's regulatory jurisdiction. Respondent's series 4COP/SRX is a special restaurant license that permits it to sell beer, wine, and liquor for consumption on the licensed premises. Additionally, the licensee must satisfy seating and record-keeping requirements and must comply with 51 percent of its gross sales being food and non- alcoholic beverages. See § 561.20(2)(a)4., Fla. Stat. Respondent's restaurant is located in Sarasota County, Florida, and, pursuant to the 4COP/SRX license, must have seating and capability to serve 150 customers at any one time. On August 5, 2010, Special Agent Flynn conducted an inspection of Respondent's business premises. He conducted the inspection based on complaints made to the Department that Respondent was operating as an after-hours bar, rather than a restaurant. At this initial inspection, which occurred at 2:30 p.m. on August 5, 2010, Special Agent Flynn found the restaurant did not have any customers or menus. Further, he noticed that the premises had seating for only 92 people and a large dance floor. Further, he observed that the walls had signs advertising drink specials and late-night parties. Special Agent Flynn met Ms. Stokes, Respondent's manager and holder of the license, and informed her that the beverage license required that Respondent be able to serve 150 customers at one time. Also, Special Agent Flynn requested the required business records concerning the purchase of alcoholic beverage invoices from the distributors for a 60-day proceeding period. Ms. Stokes did not have the requested records on the premises. On August 19, 2010, Special Agent Flynn sent Ms. Stokes a written request, requesting alcoholic purchase invoices for a 60-day period before August 19, 2010. The request allowed Ms. Stokes 14 days to compile the records and to provide the records to the Department. The record here showed by clear and convincing evidence that Respondent did not produce records for the audit period. On September 8, 2010, at approximately 3:00 p.m., Special Agent Flynn returned to Respondent's premises. Again, he found that Respondent did not have the required seating number and ability to serve 150 customers at one time. Special Agent Flynn offered credible testimony that, during the September 8, 2010, inspection, he found Respondent had only 106 available seats. Further, consistent with his inspection on August 5, 2010, Special Agent Flynn observed facts showing that Respondent was a late-night bar, as opposed to a restaurant. The evidence showed that on September 8, 2010, Special Agent Flynn observed that Respondent did not have any customers, menus, and very little food in its small kitchen. Special Agent Flynn, however, did observe that Respondent continued to have its large dance floor, disc jockey booth, advertised drink specials, and posters advertising late-night parties. Clearly, Respondent was being operated as a bar, rather than a restaurant as required by its license. At the September 8, 2010, inspection, Special Agent Flynn again requested Respondent's business records that he had previously requested for the 60-day time period before August 19, 2010. Ms. Stokes provided a few invoices for purchases of food and non-alcoholic beverages. These invoices were dated after the August 19, 2010, date that Special Agent Flynn had requested and did not cover the requested 60 days prior to the August 19, 2010, request. These records included food and beverage purchases by Respondent from retailers, but did not contain any records concerning the points of sale at the restaurant. Ms. Nadeau, an auditor for the Department, offered credible testimony concerning the Department's request for business records from Respondent for the audit period of April 1, 2010, through July 31, 2010. On August 27, 2010, Ms. Nadeau set up an audit request for the period of April 1, 2010, through July 31, 2010, based on information provided by Special Agent Flynn. The Department provided Ms. Stokes with an audit engagement letter that requested business records. Ms. Nadeau testified that on September 10, 2010, she was contacted by Ms. Stokes. Ms. Stokes informed Ms. Nadeau that Ms. Stokes had become the owner of the restaurant in June 2010 and that she did not have the required records. Ms. Nadeau informed Ms. Stokes to provide all the records requested in the audit engagement letter that Ms. Stokes had and to try to obtain the prior records from the previous managing member of Respondent. On September 22, 2010, Ms. Stokes mailed to the Department records she claimed met the audit period. The records consisted of guest checks for July and August 2010, which only showed food purchases and no alcoholic beverage purchases. Further, Ms. Nadeau found that the records were not reliable, because the records contained numerous personal items not related to the restaurant, such as baby wipes, cotton swabs, and boxer shorts. Consequently, the record clearly and convincingly shows that Respondent failed to provide the required business records for the audit period of April 1, 2010, through July 31, 2010. Next, based on Respondent's failure to provide any reliable records, the Department was unable to conduct an audit of the business. Records provided by Respondent indicated that the only sales that occurred on the premises were for food. However, the testimony showed that Respondent's business included the sale of alcohol and marketed the sale of alcoholic beverages for late-night parties. Mr. Torres, the senior auditor for the Department, credibly testified that he conducted an independent review of Ms. Nadeau's initial audit findings. Mr. Torres, who has been employed with the Department for 27 years, reviewed the records provided by Respondent. He credibly testified that Respondent's guest checks were very questionable because they showed all food sales, but no alcohol, which was not consistent with Special Agent Flynn's observations. The evidence further showed that Ms. Stokes became the managing member of Respondent in June 2010. Ms. Stokes provided the Department with a change of corporate officers and named herself as registered agent, rather than apply for a new license. This distinction would later become important because, as explained by Ms. Nadeau, in the Department's eyes, there is a continuation of ownership. Under a continuation of ownership, Ms. Stokes was required to have business records for the time period before she became the managing member of Respondent. Ms. Stokes credibly testified that she did not have any records before June 20, 2010; thus, Respondent was unable to provide records for the audit period. Ms. Stokes candidly admitted that her restaurant had been struggling financially, which is why she had worked to catering special events to draw foot traffic.
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 revoking Respondent's alcoholic beverage license and finding that Respondent violated: 1. Section 561.20(2)(a)4., within section 561.29(1)(a), on September 8, 2010, by failing to provide the required service area, seating, and equipment to serve 150 persons full-course meals at tables at one time as required by its license; 2. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), the audit period of April 1, 2010, through July 31, 2010, by not providing the requested business records; and 3. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), on September 8, 2010, by not providing the requested business records. It is further RECOMMENDED that the final order find that the Department did not prove by clear and convincing evidence that Respondent violated section 561.20(2)(a)4., within section 561.29(1)(a). DONE AND ENTERED this 23rd day of September, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2011.
The Issue Whether or not on or about October 31, 1978, the Respondent, Cesar Augustus Rodriguez, a licensed vendor or distributor, or his authorized agent, did sell alcoholic beverages with an improper license, to-wit: Selling under authority of a license when the license fee required for renewal had not been properly paid, contrary to Section 562.12, Florida Statutes.
Findings Of Fact On September 30, 1978, the Respondent, Cesar Augustus Rodriguez, issued or caused to be issued a check in the amount of $1,750.00 made in behalf of the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The purpose of this check was to pay for the annual renewal of Respondent's beverage license, Number 39-994, 4-COP, under which the Respondent was trading as Tom's Place. The requirement for payment of the renewal of the license is established by Section 561.27, Florida Statutes. The check for payment was drawn on the Barnett Bank of Tampa. When presented by the Petitioner for payment, the check was returned on the basis that there were insufficient funds for the check to be honored. The check number in question was check No. 407, drawn on account No. 01704386. (The facts as stated above were arrived at pursuant to a stipulation entered into by the parties and placed on the record during the process of a formal hearing conducted pursuant to Section 120.57, Florida Statutes.) Representatives of the Petitioner tried on a number of occasions to get the Respondent to pay the required license fee by an instrument that was negotiable. Those representatives were unsuccessful in their attempts, and on October 30, 1978, Captain R. Caplano, District VI Supervisor, Division of Alcoholic Beverages and Tobacco dispatched officers to retrieve the aforementioned beverage license from the premises known as Tom's Place. The license was brought back to the District headquarters. Around 4:55 p.m. on October 30, 1978, the Respondent came to the District office of the Petitioner with the intention of redeeming the license to Tom's Place and two other licensed premises owned and operated by him, namely, Port Tampa Bar and Rene's Lounge. Rodriguez offered to pay the licensing fee in cash; however, there was insufficient cash to pay the entire fee required and the necessary penalty established under Section 561.27, Florida Statutes. Moreover, the language of of Rule 7A-2.15, Florida Administrative Code, establishes that the Petitioner shall accept only a cashier's check, money order or certified check in payment for the license fee once an insufficient funds check has been tendered for that payment initially. During the course of the meeting between the Respondent and Captain Caplano on the afternoon of October 30, 1978, held in the District office, Mr. Rodriguez indicated his concern that he not be able to operate during the interim period necessary to obtain the proper form of payment for the license fee and penalty. After that discussion, the license to Tom's Place and the other licenses discussed were returned to the Respondent with the understanding that the Respondent was to bring in the proper license fees and penalty payments on the following morning, October 31, 1978; immediately after the banking institutions had opened, to allow the Respondent to obtain the necessary cashier's checks. The Respondent was under the impression that between the hours that his licenses had been returned to him and the time on the morning of October 31, 1978, to make the proper payment, he was at liberty to operate the licensed premises to the extent of selling alcoholic beverages. Captain Caplano, through his testimony in the course of the hearing, established that the act of returning the license on the evening of October 30, 1978, was tantamount to allowing the Respondent to operate, conditioned upon the immediate payment of the license fees on the following morning of October 31, 1978. The licensed premises, Tom's Place, was opened the next morning at 7:05 a.m. It opened after the license had been seized on the prior afternoon of October 30, 1978, at 4:31 p.m. and after advising the employee on duty for the Respondent that no more alcoholic beverages could be sold following the seizure. This arrangement was superseded by the arrangement between the Respondent and Captain Caplano, which was made in the late afternoon of October 30, 1978. Turning back to a consideration of the situation on October 31, 1978, at the time Tom's Place was opened, a different employee was on duty than that person who was there on the afternoon of October 30, 1978. This new employee was one Corine Lewis. At about the time the premises opened, she called the stepson of the Respondent to ascertain whether or not alcoholic beverages could be sold. The response of the stepson, who was acting under the authority of the Respondent, was to the effect that the "boss" was on the way with the license, creating the belief in the mind of Ms. Lewis that she could sell alcoholic beverages. At around 8:30 a.m., the same Ms. Lewis called the Petitioner's office and spoke to Beverage Officer John Allen, the same officer who had removed the license from the premises on the afternoon of October 30, 1978. Officer Allen instructed Ms. Lewis not to sell any alcoholic beverages without the license being available. Following the conversation between Ms. Lewis and Officer Allen, the Respondent came to the District headquarters around 10:00 a.m. on October 31, 1978, with the necessary funds to pay for the renewal of the licenses pertaining to Port Tampa Bar and Rene's Lounge. He did not have the necessary funds to pay for the renewal of the license for Tom's Place. He indicated to officials at the District office of the Petitioner, that it would be necessary for him to obtain a cashier's check from a separate bank for the payment of the license for Tom's Place, meaning by that a separate bank than the one from which the cashier's checks were issued for the purpose of paying the licenses for Port Tampa Bar and Rene's Lounge. Rodriguez indicated that he would leave the license for Tom's Place until he could obtain the money for the license fee. He did in fact leave that license with the Division of Alcoholic Beverages and Tobacco and the fee was paid sometime in the early afternoon of October 31, 1978. At around the time the conversation was occurring between the Respondent and Captain Caplano, the representative of the Petitioner, Officer Allen had returned to Tom's Place. When he entered the licensed premises, he discovered a number of patrons in the premises and opened beer bottles in evidence. Officer Allen inquired of Ms. Lewis about the license and Ms. Lewis informed him that she did not have the license. Officer Allen then left the licensed premises and called Captain Caplano to ascertain the whereabouts of the license. He also advised Captain Caplano that alcoholic beverages had been sold in the licensed premises on the morning of October 31, 1978. Captain Caplano indicated that he had the license and that the license fee had not been paid and that Officer Allen should write a citation for selling alcohol without a license if in fact that had occurred at a time when the premises was not operating under an authorized beverage license. Officer Allen followed those instructions, and cited the licensee for a violation of Section 562.12, Florida Statutes, which pertains to selling alcoholic beverages with an improper license. While Officer Allen was still at the licensed premises the morning of October 31, 1978, the stepson of the Respondent arrived at that location to close the bar, and did close it. Under the circumstances, the Respondent was of the persuasion that he could operate the bar until such time as the license fee had been properly paid after the bank had been opened on the morning of October 31, 1978. He did not feel that he had the opportunity to visit two banks to get the necessary cashier's checks, prior to reporting to the District office of the Petitioner to pay the license fees and penalties. Captain Caplano was of the belief that the licensee could operate on the evening of October 30, 1978, but did not envision the right of the licensee to operate on the morning of October 31, 1978, if the licensee did not immediately tender payment for the license fees on the morning of October 31, 1978. In the mind of Captain Caplano, the idea of selling any form of alcoholic beverages on the morning of October 31, 1978, without first paying the license fee for Tom's Place constituted the sale of alcoholic beverages under an improper license. It is unclear exactly when the alcoholic beverage was sold on the morning of October 31, 1978, in Tom's Place. Ms. Lewis' testimony is to the effect that one beer was sold sometime between 7:05 a.m. and 8:30 a.m., with 8:30 a.m. being the time at which Officer Allen advised Ms. Lewis that no alcoholic beverages should be sold on that morning without the license being on the premises and this testimony is unrefuted by the Petitioner. In view of the totality of the facts, it has not been demonstrated by the Petitioner that the Respondent was acting in derivation of the inherent authority to sell alcoholic beverages extended to him when the licenses were returned to him on the afternoon of October 30, 1978, through the person of Captain Caplano. Therefore, there has been no showing of a violation of Section 562.12, Florida Statutes.
Recommendation It is recommended that the case before the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Number 33276- A, be dismissed. DONE AND ENTERED this 6th day of March, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary Jo M. Gallay, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 Cesar Augustus Rodriguez t/a Tom's Place 2605 West Kennedy Boulevard Tampa, Florida 33609
The Issue By notice to show cause, petitioner charged that respondent, individually or through the acts of its agent/employee, violated the provisions of Section 562.11(1)(a), Florida Statutes, by selling an alcoholic beverage on its licensed premises to a person under the age of 21. Respondent requested a formal hearing on the charges, and the matter was referred to the Division of Administrative Hearings. At the hearing, petitioner called three witnesses and offered three exhibits which were admitted into evidence. Respondent testified on his own behalf and offered no exhibits. A transcript of the hearing was not ordered, and the parties were granted leave until August 21, 1989 to file proposed findings of fact. Petitioner timely filed proposed findings of fact and conclusions of law. A ruling on each of petitioner's proposed findings of fact has been made and is reflected in the Appendix to this recommended order. On August 24, 1989, respondent filed a letter which is here deemed to be his proposed findings of fact; however, his filing was untimely.
Findings Of Fact At all times material hereto, respondent, Coast Line Petroleum, Inc. d/b/a Toms Texaco, held an alcoholic beverage license number 60-04813, series 2- APS for the premises known as Toms Texaco in Lantana, Florida at 401 N. Dixie Highway. Mr. Thomas Przybylski is the President of respondent and appeared on behalf of the licensee. On or around April 4, 1989, petitioner's investigator conducted an investigation of respondent's licensed premises to determine if respondent was selling alcoholic beverages to underaged persons. The investigation was prompted by complaints received by petitioner from the Lantana Police Department. Petitioner's practice in making such investigations was to employ an underaged person and send the underaged person onto the licensed premises to purchase an alcoholic beverage. The underaged person was instructed not to carry any form of identification and to respond truthfully if asked his age or for identification. Julio A. More was employed by petitioner as an Investigative Aide. On April 4, 1989, following petitioner's instructions, Mr. More, who was eighteen at the time and appeared to be no older than his age, entered the licensed premises at issue. It was a busy afternoon at Toms Texaco. Mr. More picked a beer out of the inventory and attempted to purchase it from Mr. Przybylski, who was working that afternoon. Mr. Przybylski asked Mr. More if he had any identification to which Mr. More replied that he had none. Mr. Przybylski then sold Mr. More the beer. Petitioner's investigator witnessed the sale and confiscated the tendered beer. Mr. Przybylski as an employee and officer of respondent sold an alcoholic beverage to an individual who was eighteen at the time of the sale. Accordingly, respondent is guilty of selling an alcoholic beverage to a person under 21 years of age. The proof demonstrated that petitioner has promulgated disciplinary guidelines for offenses similar to the one at issue; and that the appropriate penalty in this case would be the imposition of a fine of $1,000 and twenty-day suspension of the license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on respondent an administrative fine of $1,000 and suspending respondent's license for a period of twenty days. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of September 1989. JANE C. HAYMAN 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 7th day of September 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO.89-3006 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraphs 3 and 4. Addressed in paragraph 4. Irrelevant. Adopted in paragraph 5. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Thomas John Przybylski, Jr. Coast Line Petroleum, Inc. 10670 Cypress Bend Drive Boca Raton, Florida 33498 Lt. Debbie Pfitzenmaier Elisha Newton Dimick Building 111 Georgia Avenue, Room 207 West Palm Beach, Florida 33401 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey Director The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether or not on or about the 14th day of May, 1976, Mary Lener Arnold, a licensed vendor, did have in her possession, permit or allow someone else to have unlawfully in their possession on Mary Lener Arnold's licensed premises, alcoholic beverages, to wit: 9 half-pints of Smirnoff Vodka, not authorized by law to be sold under her license, contrary to 562.02, F.S.
Findings Of Fact The Respondent, Mary Lener Arnold, t/a Buggs' Drive Inn, held on May 14, 1976 and now holds beverage license no. 50-2 series 1-COP with the State of Florida, Division of Beverage. This licensed premises is located on Main Street, Greenville, Florida. On May 14, 1976, a confidential informant with the Division of Beverage went to the licensed premise of the Respondent in Greenville, Florida and purchased a bottle of alcoholic beverage not permitted under a 1-COP license. This confidential informant was working for officer B.C. Maxwell of the State of Florida, Division of Beverage. Officer Maxwell along with other officers with the Division of Beverage and officers of the Madison County, Sheriff's office returned to the licensed premises on May 14, 1976 and in looking through the licensed premises found a black bag containing 9 half-pints of Smirnoff Vodka on the licensed premises. This Smirnoff Vodka was not permissible on the licensed premises under a 1-COP license. On the licensed premises at the time of the inspection was one Patsy Jackson Williams who indicated that she was in charge of the premises. The confidential informant who had purchased the bottle of alcoholic beverage indicated that his purchase had been made from the same Patsy Jackson Williams. The black bag with its contents of 9 half-pints of Smirnoff Vodka is Petitioner's Exhibit #2 admitted into evidence. The alcoholic beverage purchased by the confidential informant is Petitioner's Exhibit #4 admitted into evidence.
Recommendation It is recommended that the Respondent, Mary Lener Arnold have her beverage license suspended for a period of 30 days based upon the charge proven in the hearing. DONE and ENTERED this 22nd day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Larry D. Winson, Esquire Staff Attorney Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Mary Lener Arnold t/a Buggs' Drive Inn Main Street Greenville, Florida
The Issue Whether Respondent's alcoholic beverage license should be disciplined due to the felony conviction of an officer of the corporation.
Findings Of Fact The Department is the state agency charged with regulating the sale of alcoholic beverages in the state. In accordance with this duty, the Department issued alcoholic beverage license No. 27-00455. The license permitted the sale of wine, beer, and liquor for consumption on the premises, pursuant to a special act of the Florida Legislature. The license is currently being held in escrow by the Division of Alcoholic Beverages and Tobacco of the Department. Mr. Christian's, Inc., was incorporated in Florida on May 11, 1977. The corporate officers were listed as Frank Masiarczyk, Sr., and Linda M. Masiarczyk. The Florida Department of State's spelling of the name is "Mr. Christian's, Inc." In the pleadings and evidence in the case the corporation is also referred to as "Mr. Christian's, Inc." and "Mr. Christians, Inc." All of these spellings refer to the corporation which holds alcoholic beverage license No. 27-00455. An application for a change of officers or stockholders of the corporate licensee, filed October 4, 1996, indicated that Frank Masiarczyk, Sr., was president and vice-president of the corporation and owned one hundred percent of the stock. It also reflected that Linda M. Masiarczyk was the secretary and treasurer of the corporation. The license had been the subject of a disciplinary proceeding prior to July 2, 1996. This proceeding culminated in a consent order signed by Linda Masiarczyk on July 2, 1996. A Florida Department of State document filed February 3, 1997, reflects that on that date, Linda M. Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk. A Florida Department of State document filed on November 17, 1997, reflects that on that date, Linda M. Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk. A Florida Department of State document filed on May 21, 1998, reflects that on that date, Linda M. Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk. A Florida Department of State document filed on March 22, 1999, reflects that on that date, Linda M. Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk. A Florida Department of State document filed on May 16, 2000, reflects that on that date, Linda M. Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk. Linda M. Masiarczyk was convicted in the United States District Court, Northern District of West Virginia, on July 8, 1999, of a violation of Title 18 U.S.C. Section 371, conspiracy to impede the lawful functions of the U. S. Internal Revenue Service, and Title 31 U.S.C. Section 5324, structuring transactions to avoid reporting requirements. These offenses are felonies. On July 19, 1999, Ms. Masiarczyk filed a notice of appeal in the aforementioned case. On December 10, 1999, Ms. Masiarczyk filed an appellate brief with the United States Court of Appeals for the Fourth Circuit. The court has not rendered a decision on this appeal.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department revoke alcoholic beverage license No. 27-00455. It is further recommended that the Department suspend the revocation until such time as Ms. Masiarczk's appeal is decided. DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2001. COPIES FURNISHED: Ralf Michels, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Michael J. Stebbins, Esquire Michael J. Stebbins, P.L. 504 North Baylen Street Pensacola, Florida 32501 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Respondent, Lopez Grocery, Inc., is the holder of alcoholic beverage license number 15-02358, series 2APS, for the premises at 214 Emerson Drive, N.W., Palm Bay, Brevard County, Florida. Serafin Lopez and his wife, Elena, are President and Vice-President, respectively and are sole owners of the business. On November 3, 1991, the Palm Bay Police Department was conducting surveillance of Lopez Grocery as a result of reports that it was selling alcoholic beverages to underage persons. Cpl. Kraynick, a seven year law enforcement officer, was assigned to the surveillance on the 3:00 p.m. to 1:00 a.m. shift. Cpl. Kraynick was positioned about 40 feet outside the store, at the edge of the woods, with a clear view of the cash register and clerk inside the store. The store is at the end corner of a small strip shopping center. The other stores were vacant at the relevant time. At approximately 7:00 p.m., the parking lot was empty and the store was well lit from within. Cpl. Kraynick observed a brown pick-up truck pull up to the store. A white juvenile female went in, brought a six-pack of beer to the counter, got cigarettes and exited. She went to the passenger side of the truck to speak with the passenger and reentered the store where she picked up several more loose beers and paid for her purchases. The clerk bagged the beer and made change without requesting identification. The juvenile left the store with the beer. Cpl. Kraynick's original instructions had been to simply conduct the surveillance and notify his partners to make a traffic stop and arrest. When he learned that the partners were called out, he pursued the brown pick-up in his vehicle, and made the stop about 1/4 mile from the store. As soon as he activated his lights, the pick-up pulled over. He obtained a driver's license from the driver, the same person who had purchased the beer, and he confirmed that she was sixteen. Cpl. Kraynick confiscated the beer, still cold, from behind the driver's seat. The passenger had stashed an opened beer in her purse, where it had spilled, leaving an empty bottle. After releasing the girls to their parents, Cpl. Kraynick returned to Lopez Grocery. When he returned, he found Mr. Lopez, who explained that his wife had gone to buy a lottery ticket. She returned around 7:45 p.m. and was arrested for selling alcoholic beverages to an underage person. At the hearing, Angela Theresa Valente, the girl who purchased the beer, unequivocally identified Ms. Lopez as the clerk who made the sale. At no time was she asked her age or was asked for identification by Ms. Lopez. Angela was 16 at the time of the sale; she was born on December 28, 1974. Her appearance is that of a teenager. Ms. Lopez denies that she made the sale and claims that she was away purchasing lottery tickets when the sale was made. She and her husband are the only employees. Ms. Lopez also denies that her store sells Coors Light beer, the loose beer confiscated by Cpl. Kraynick. The grocery does sell Michelob Light, the six- pack that was confiscated. Cpl. Kraynick observed Coors Light singles in the grocery cooler the night that the arrests were made. Ms. Lopez' testimony was substantially less credible than that of Cpl. Kraynick and Angela Valente, both of whom positively identified her as the person who made the sale. Ms. Lopez claimed to have witnesses who could establish that she was not at the store around 7:00 p.m. when the sale was made, but she did not produce those witnesses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondents' alcoholic beverage license # 15-02358, series 2-APS be suspended for 30 days and that a civil penalty of $500 be imposed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of September 1992. MARY CLARK 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 1st day of September 1992. COPIES FURNISHED: Nancy C. Waller, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Elena and Serafin Lopez 214 Emerson Drive Palm Bay, Florida 32907 Richard W. Scully, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald D. Conn, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue By Notice to Show Cause filed December 19, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the alcoholic beverage license number 60-0883 issued to James R. Rogers, trading as Ray's Tavern. As grounds therefor it is alleged that Rogers, in order to secure a license to sell alcoholic beverages, made false written statements to the agents of Respondent in violation of 537.06 and 561.29 F.S. One witness was called by Petitioner and four exhibits were admitted into evidence.
Findings Of Fact On December 21, 1977, notice of the hearing scheduled to commence on January 12, 1978 at 1457 N. Military Trail, West Palm Beach, Florida was served on Respondent by a beverage agent of Petitioner. (Exhibit 1) In answer to question 13 on the application for Transfer of Alcoholic Beverage License, which asked "Has a license covering the place described in this application or any other place in which any of' the above named persons were at the time interested ever been revoked by the Director?" Respondent answered "No". (Exhibit 2). By Order of the Director of the Division of Beverages dated September 30, 1955 (Exhibit 3) the alcoholic beverage license issued to James R. Rogers, Curley's Tavern, aka Ray's Tavern was revoked for maintaining gambling paraphernalia and permitting gambling on the licensed premises.
The Issue The issues for determination are whether Respondent, holder of an alcoholic beverage license, sold or permitted the sale of alcoholic beverages to minors on his licensed premises; whether Respondent retained alcoholic beverage invoices or sales tickets for three years in accordance with licensure requirements; and whether Respondent kept cigarette invoices or sales tickets for three years in accordance with licensure requirements.
Findings Of Fact Respondent is David L. Crews, holder of Alcoholic Beverage License No. 55-00162, series 1-APS, for a licensed premises known as Crews Texaco located in Nassau County, Florida. On December 15, 1989, Respondent sold William Christopher Brannan a twelve pack of beer which is an alcoholic beverage. Brannan was 17 years of age at the time Respondent sold him the beer. At the time of the sale, Respondent did not ask for proof of age or any other form of identification from Brannan. Accompanying Brannan on December 15, 1989, were two other teenagers: Robert Terrell Simmons, Jr., and Larry W. Wilkerson. Respondent sold Simmons a case of Busch beer, an alcoholic beverage, at the same time as the sale to Brannan. Simmons was 18 years of age at the time of the sale. Respondent did not ask for proof of age or any other form of identification from either Simmons or Wilkerson. It was common knowledge in the area that Respondent would readily sell alcoholic beverages at a higher than normal price to persons under the lawful age of 21 years. Respondent charged Brannan and Simmons a higher price for the alcoholic beverages purchased by them because he knew they were under the age of 21 years. Brannan, Simmons and Wilkerson had attempted to purchase alcoholic beverages from Respondent earlier in the evening, but Respondent waved them away because law enforcement personnel were investigating a domestic disturbance near his business. Later in the evening of December 15, 1989, after purchasing the alcoholic beverages from Respondent, the three youths were involved in a alcohol related accident and Brannan was killed. On April 30, 1990, Respondent was convicted in Nassau County Court of two counts of providing alcoholic beverages to a minor and paid a fine of $127.50 on each count. He also received a 30 day suspended sentence on each count. On March 9, 1990, agents for Petitioner's Division of Alcoholic Beverages and Tobacco interviewed Respondent about the matter of sale of alcoholic beverages to underage persons and conducted an inspection of his licensed premises. In the course of the inspection, the agents requested that Respondent produce his alcoholic beverage and cigarette invoices. Respondent was unable to produce the invoices and admitted to the agents that he had used the invoices for writing paper and had then thrown them away. Respondent reaffirmed these statements at the final hearing. As of December 20, 1991, Respondent has failed to produce either alcoholic beverage or cigarette invoices. As established by his own testimony at the final hearing, prior to March 9, 1990, Respondent did not maintain either alcoholic beverage or cigarette invoices on the licensed premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered suspending Respondent's beverage license bearing number 55-00162, Series 1- APS, for a period of 40 days and requiring payment of a administrative fine in the amount of $2,000. DONE AND ENTERED this 14th day of January, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-21. Adopted, although not verbatim. 22.-26.Rejected, unnecessary. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Robin L. Suarez, Esq. Assistant General Counsel Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007 David L. Crews U. S. 1 & 5th Street Hilliard, Florida 32046 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007 Janet Ferris, Secretary Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1000 Richard W. Scully, Director Division of Alcoholic Beverages Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007
