Findings Of Fact The Tanga Lounge, operated by Respondent Rodde Inc., is located at 6333 West Columbus Avenue, Tampa, Florida. This facility has been licensed by Petitioner at all times relevant to these proceedings. Respondent's records show Mr. Joe Redner as the sole stockholder and corporate officer of Rodde, Inc., which is the holder of alcoholic beverage license No. 39-738. Case No. 81-2566 contains three counts of begging or soliciting for alcoholic beverages by employees of Respondent on August 6, 1980. Testimony by former Beverage Officer White established that the solicitations of three drinks by two employees were made as charged in the Notice to Show Cause. White purchased the drinks as requested by these employees, who received a "ticket" for each of the drinks purchased for them by White. Case No. 81-2567 contains 44 counts of begging or soliciting drinks by various employees of Respondent and 44 counts charging that Respondent conspired with these employees for the purpose of soliciting drinks. These charges are primarily based on the investigations of Beverage Officers Gary Hodge and Michael Freese. The period of their investigation was October 17, 1980 through May 15, 1981. Count 52 was based on a solicitation of Detective Phil Mickel of the Tampa Police Department, who was in the licensed premises in an undercover capacity on November 6, 1980. At the request of dancer-employee Cathy Andrews, Mickel purchased a "double" for her and observed that she received two tickets from the waitress. 5 Former Tampa Police Department Detective Nick Haynes was in the licensed premises on November 6, 1980, and was approached by the dancer-employee, Cheryl Jonas, who requested that Haynes purchase a drink for her. He did so. This transaction occurred as charged in Count No. 51. Beverage Officer Freese individually and in conjunction with Beverage Officer Hodge, accounted for 38 solicitation charges (Counts 53-57, 59-63, 66, 68-88, and 163-167) . The solicitations charged in Counts 53, 55, 71-80, 83, - 84, 88, 163, 166 and 167 occurred as alleged and involved direct requests for the purchase of drinks ("Will you buy me a drink," or words of similar import) . Freese observed employees receive tickets for these drinks from the bartender or waitress in most instances. The solicitations charged in Counts 54, 56, 57, 59-63,66, 68-70, 81, 82, 164 and 165 were not supported by evidence of direct requests for the beverage purchases by employees of Respondent. At a meeting held about December 17, 1980, Beverage Officers Freese and Hodge were instructed by their supervisor to require that dancers request drinks before ordering. This procedure was adopted to avoid situations where the beverage officer was not asked to buy a drink, but eventually received the bill for the dancer's drink. In implementing the instructions, Freese used these or similar words: "If you want a drink, ask for it.", This statement possibly misled the dancers to believe that Freese was inviting them to order whenever they wanted drinks. The date when Freese first used this statement was not established, but it was subsequent to the mid-December meeting. It was noted that Freese was not solicited during the first two months of the investigation. Therefore, all or substantially all of the solicitation charges involving Freese took Place after he first issued the "invitation." Beverage Officer Hodge individually testified as to solicitation Counts 58, 64, 65 and 67. Counts 58, 65 and 67 did not involve a direct request for beverage purchase. Count 64 occurred as alleged and was based on a direct request for beverage Purchase ("Why don't you buy me one now?"). This request was made during the early morning of January 13, 1981. Although this was after the December meeting which Hodge attended, it was not shown that he made any statement which could have been interpreted as an "invitation" by any employee of Respondent. The fact that customers regularly Purchased drinks for the dancers was well known to the management as evidenced by the tickets issued to employees for drinks purchased in their behalf. These tickets were redeemable by the dancers for one dollar each. Thus, employees were rewarded and implicitly permitted to solicit drinks. Respondent's announced policy was, however, to reprimand or discharge any employee who was caught begging or soliciting drinks. This policy was attested to by bartenders; former employees and dancers. Although it cannot be found that Respondent actively encouraged its employees to solicit drinks, it did encourage socializing with customers to a degree which would elicit offers to purchase drinks for them. Respondent has since discontinued the practice of issuing tickets or other employee incentives to obtain customer purchased drinks. Counts 127 through 161 involve drug charges. Purchases were made by Beverage Officer Freese and Hedge, individually and together. Their testimony and that of Florida Department of Law Enforcement Crime Lab personnel established that controlled substances were purchased from dancer-employees of Respondent on the licensed premises as charged in Counts 127 through 137, 156 and 158. The transactions which-were established to have been carried out involved cocaine, methaqualone and cannabis deliveries by dancer-employees Margie Wade, Janie Marsie, Lori Basch and Lisa Scibilia on February 21, 24, 27; March 2, 9, 13, 17, 23; May 13, 15, 1981. It should be noted that Counts 136 and 137 actually involved one transaction where Hodge and Freese split the delivery. Count 161 concerned a transaction outside the licensed premises and this count, as well as Count 158, involved an employee of another establishment. Petitioner's Exhibit 43 and the supporting testimony concerned a transaction for which there was no charge. Counts 138 through 151, 154 and 159-161 alleged conspiracies to deliver controlled substances corresponding to other counts which alleged actual deliveries. There was testimony on the involvement of third person (not shown to be associated with the Respondent) only as to Counts 134, 146, and 147, which essentially covered a single transaction. No other evidence of conspiracy was presented. On one occasion, Redner was in the Tanga Lounge and within about 15 feet of the beverage officer and the dancer when the delivery took place. However, there was no evidence that Redner was involved or that he had any knowledge of the transaction. Testimony by a former employee that Redner participated in drug use was lacking in credibility and was not corroborated. Counts 3 through 30 and 33 through 50 are charges of lewd dancing by employees of Respondent on the licensed premises. The charges cover 46 dances on 12 separate dates between October, 1980, and February, 1981, performed by 11 different dancer-employees. The acts complained of in these counts were witnessed and attested to by Beverage Officers Hodge and Freese and Tampa Police Department Detective Mickel. The alleged lewd conduct included exposing of the breasts, vagina and anus by dancers during their on-stage performances. Typically, the dancers received dollar tips which customers placed in their bikini bottoms. Some dancers allowed customers to reach inside the bikinis in order to touch their pubic areas. On several occasions the dancers squatted and picked up the dollar bills with their exposed genital areas. On December 11, dancer Cathy Andrews rubbed her vagina, then rubbed the genital area of Beverage Officer Freese, who was observing the dance. Mr. Redner was present during much of the alleged lewd conduct. Although Redner testified that "flashing" was acceptable, the exposure of sexual organs as attested to was not limited to brief "flashes," but was prolonged. Further, Respondent's contention that dancers receiving tips tried to avoid contact by customers is not credible. Rather, the testimony of the officers established that dancers frequently encouraged customers to place their hands against the dancers pubic areas when offering tips. Respondent's, lounge is advertised as an adult entertainment facility and is generally known to include nude dancing. There was no competent evidence as to community standards for this type of conduct in the Tampa area, nor was there any evidence that these acts shocked or offended anyone present other than the investigating officers. Detective Mickel conceded that about five other bars he has visited offer this type of entertainment. Counts 31 and 32 concern an offer of prostitution by one of the dancer-employees to the beverage officers. Their testimony established that the offer was made as charged. This was, however, a single incident and there was no evidence that such offers were recurring or that Respondent had knowledge of this transaction. Counts 1 and 2 of Case No. 81-2567 allege that Robert Rodriguez holds an undisclosed interest in the licensed premises. Such interest, if any, was not reflected in the license transfer application submitted on April 23, 1976. Rather, Joseph Redner and Joe DeFriese were identified as the sole stockholders with no direct or indirect interest held by any other person. Rodriguez previously owned an interest in Deep South Plantation Foods, Inc., whose alcoholic beverage license was revoked by Petitioner. Redner was at one time employed by Rodriguez as manager of Deep South Petitioner asserts that Rodriguez became ineligible to hold an interest in an alcoholic beverage license as a result of the revocation, pursuant to Section 561.15, Florida Statutes, and that he and Redner therefore concealed Rodriguez's subsequent interest in the Tanga Lounge. Respondent contends that Rodriguez is the manager of the Tanga Lounge, but holds no direct or indirect interest therein. Rodde, Inc., was organized on April 19, 1976, and a $2,000 down payment deposit on the contract for purchase of the Tanga Lounge and liquor license was made on April 20, 1976, pursuant to contract signed by DeFriese and the prior owners on that date. This $2,000 check was issued by Robert Rodriguez against his own account. Petitioner produced this cancelled check (Petitioner's Exhibit 4) and numerous other documents which establish that Rodriguez participated in all aspects of Rodde, Inc., management and financial operations since its inception. Rodriguez has unrestricted authority to withdraw funds from corporate accounts and has signed or cosigned for loans and credit purchases. Rodriguez also utilized a Rodde, Inc., credit card to pay personal expenses on a vacation to Las Vegas in 1979. There was no evidence of reimbursement or other accounting to the corporation for these expenditures. The testimony of the Rodde, Inc., employees did not corroborate Redner's testimony that Rodriguez is manager of the Tanga Lounge. Rather, these employees believed Rodriguez was somehow associated with the business, but regarded Redner as the manager and their only supervisor. Rodriguez issued two checks for $1,408.05 on December 1, 1979, one payable to himself and the other to Redner (Petitioner's Exhibit 32) . These checks each carried the notation "bonus $1500", with a further notation apparently accounting for $91.95 in withholding tax. In view of Rodriguez's duties and functions within the corporation, this "bonus" can only be considered a participation in profits. Redner's credit rating and financial management skills are poor. Therefore, Respondent contends that a manager with strength in these areas was needed to ensure business success. However, Rodriguez's unlimited authority in dealing with corporate funds, the investment or loan of his personal funds, his participation in business profits and the absence of any apparent supervisory duties are inconsistent with the employee theory held out by Respondent.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent be found guilty of the charges contained in Counts 1, 2 and 3 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2566. It is further RECOMMENDED that Respondent be found guilty of the charges contained in Counts 1, 2, 31, 32, 51, 52, 64, 127-137, 156, and 158 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2567. It is further RECOMMENDED that all other charges be dismissed. It is further RECOMMENDED that Respondent's Alcoholic Beverage License No. 39-738 be revoked. DONE and ENTERED this 9th day of July, 1982 at 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 9th day of July, 1982.
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Suamy Corporation, held license number 23-21872, series 2APS, authorizing it to operate a beer and wine package store (the sale of beer and wine for off-premises consumption) at the premises of a business known as Bristol Sundries, located at 2127 Brickell Avenue, Miami, Florida (hereinafter "the licensed premises").2 Milagros Suarez was the sole shareholder, as well as the sole corporate officer, of the Respondent corporation. On February 11, 1997, Leonard DelMonte, a special agent with the Division of Alcoholic Beverages and Tobacco, undertook an inspection of the licensed premises. Upon entry into the premises, the agent observed shelves on his left that contained bottles of liquor on display, and behind the counter he observed more shelving, which contained more bottles of liquor on display, together with bottles of wine. A cash register was observed on the counter, and an employee was present to attend the needs of customers. The agent inspected, inventoried, and seized 19 bottles of distilled spirits (Petitioner's Exhibits 2-1 through 2-19) on the licensed premises. (Petitioner's Exhibit 1). The bottles were all sealed; labeled as distilled spirits, such as rum, scotch, gin, and vodka; and carried the name, trademark, or insignia of commonly known manufacturers of distilled spirits, such as Johnny Walker, Cuervo, Pinch, and Bombay. The bottles also had affixed to them price stickers, of the same type affixed to the wine that was offered for sale, and contained prices that were consistent with the retail price of the product. Given the facts, it is apparent that Respondent was offering the distilled spirits for sale on the licensed premises.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the charge set forth in the Administrative Action and imposing a civil penalty of $1,000 for such violation, subject to Respondent's option to substitute a period of suspension in lieu of all or a portion of the civil penalty. DONE AND ENTERED this 27th day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1998.
The Issue Whether Respondent violated the Beverage Laws as alleged in Notice to Show cause dated January 3, 1991.
Findings Of Fact At all times relevant hereto Dorsa Inc., trading as The Establishment, held 2-COP license No. 61-00066 to sell alcoholic beverages at 311 Pennsylvania Avenue, San Antonio, Florida. On October 31, 1990 several Beverage agents entered The Establishment where a Halloween party was in progress among the St. Leo College students. Upon entering the bar an employee at the door checked identification and stamped the back of the entering patron's hand. An underage operator with DABT entered with another agent and the stamp placed on the back of the minor's hand could not be distinguished from the stamp on the hand of the adult agent. The minor went to the bar and purchased beer on two occasions without further questioning or identification by the bartender. Bartenders had been directed to sell beer to those with stamps or wrist bands as they had been cleared by the bouncer at the door as age-qualified to purchase alcoholic beverages. During the evening of October 31-November 1, 1990 several minors were arrested for possessing alcoholic beverages (beer) in bottles with Annheuser- Busch labels and several others had purchased beer from the bartender. The ages of these minors were verified by driver's licenses possessed by these patrons. One of the DABT agents, Sgt. Timothy Allen, had a discussion with James John Redman III who appeared to be in charge of The Establishment. Allen was told by Redman that Redman was the new owner of The Establishment and the papers verifying this ownership were in an attorney's office in Miami. No application to change ownership has been presented at the district office of the Petitioner.
Recommendation It is recommended that the 2-COP alcoholic beverage license No. 61-00066 issued to Dorsa Inc., trading as The Establishment, be revoked. RECOMMENDED this 7th day of June, 1991, in Tallahassee, Florida. K. N. AYERS 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 7th day of June, 1991. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Lance Joseph, Esquire 9990 S.W. 77 Avenue, Suite 210 Miami, FL 33156 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Don D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: On October 24, 1985, Petitioner filed an initial application with Respondent to obtain an alcoholic beverage license. The alcoholic beverage license was to be used in the operation of a small restaurant which Petitioner owned, known as El Conquistador Restaurant, in Homestead, Florida. The Petitioner is the sole owner of El Conquistador Restaurant. The application listed the Respondent, Maria Andarcio as the sole proprietor and only person having a financial interest in the business known as El Conquistador Restaurant. During the processing of the application, Mr. Ross, the investigator assigned to Petitioner's case, noticed that the application appeared to have several discrepancies. In particular, Mr. Ross was concerned because the financial information submitted with the initial application listed Julio Andarcio, Respondent's estranged husband, as the sole depositor of the expense account but he was not listed as having any financial interest in the business. Secondly, Petitioner failed to provide sufficient information regarding her employment history. Lastly, a lease which was part of the initial application, identified a potential undisclosed interest, Jose Osario, as a co- leasee. On November 15, 1985, Mr. Ross, routinely mailed a "14 day letter" to Petitioner requesting additional information. In particular, the "14 day letter" directed the Petitioner to provide additional information within 14 days from the date of receipt of the letter. The additional information requested was as follows: List occupation for the past 5 years on personal questionaire. Julio Andarcio must be fingerprinted and submit personal questionaire." The Petitioner failed to provide the information requested in the 14 day letter. Thereafter, Respondent was unable to fully investigate the license application and denied the Petitioner's license on January 8, 1986. For some reason, the Petitioner did not receive the 14 day letter which Respondent sent by regular mail. Therefore, she did not respond within the requested time period. The Petitioner was born in Cuba and speaks very little English. The language barrier contributed to the apparent discrepancies in Petitioner's initial application. Mr. Ross opined that based on all of the information that he had received up to the time of the hearing, the Petitioner would have been granted a beverage license had she only responded to the "14 day letter."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered allowing the Petitioner 20 days from the date thereof in which to provide Respondent with the information requested in the initial "14 day letter," thereby making her application complete. The Respondent shall thereafter review and process the application in the standard and routine manner. DONE and ORDERED this 24th day of October, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 24th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1176 Rulings on Proposed Findings of Fact Submitted by the Petitioner (None Submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. Partially adopted in Finding of Fact. Matters not contained therein are rejected as unnecessary. Adopted in Finding of Fact 5. Rejected as a recitation of testimony and/or argument. Partially adopted in Finding of Fact. Matters no contained therein are rejected as subordinate. COPIES FURNISHED: Armando Gutierrez, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1077 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927
The Issue Whether petitioner's application for transfer of an alcoholic beverage license should be granted, or denied on the ground that the license has been revoked.
Findings Of Fact On January 25, 1977, Armando Calo, through counsel, filed a Notice of Lien with DABT stating that he was a bona fide mortgagee on an alcoholic beverage license (4-COP, lic. no. 23-1901) held by the Intimo Lounge, Inc., 1601 Collins Avenue, Miami Beach, Florida. Citing Section 561.65, Florida Statutes, he enclosed a copy of his chattel mortgage and a check payable to DABT in the amount of $5.00. (P-1) By return letter dated February 4, 1977, C. L. Ivey, Jr., DABT's Licensing Supervisor, acknowledged receipt of Mr. Calo's Notice of Lien and stated that it would be made part of the Intimo Lounge, Inc. license file. At that time, administrative license revocation proceedings were pending against Intimo Lounge, Inc. So Mr. Ivey sent a copy of his February 4, 1977 acknowledgment letter to DABT's Miami Office, and included this notation: P.S. John: You need to immediately notify Attorney Solomon's [Calo's attorney's] office if and when an order to revoke is issued. He will then go to court to seek a judicial transfer. (P-2) On March 22, 1977, Charles A. Nuzum, DABT's Director, executed an order revoking Intimo Lounge, Inc.`s alcoholic beverage license. (R-1) Eight days later, on March 30, 1977, Armando Calo sued Intimo Lounge, Inc., seeking to foreclose his chattel mortgage on its alcoholic beverage license. By letter of the same date, counsel for Mr. Calo, citing Section 561.65, Florida Statutes, notified DABT of the filing of the foreclosure action; he also asserted that Mr. Calo had no knowledge of or participation in the causes for which the Intimo Lounge, Inc. beverage license was revoked. Copies of subsequent pleadings filed in the action were sent to DABT's legal department. DABT thus knew the suit was filed and was aware of its continued progress. (Testimony of Barone; P-3, P-4, P-11) The Circuit Court of Dade County ultimately entered a final judgment of foreclosure in Mr. Calo's favor. On August 17, 1979, pursuant to such judgment, the Clerk of the Court sold the Intimo Lounge, Inc. beverage license, at public sale, to intervenor Rene Valdes, 1710 N.W. 7th Street, Suite 7201, Miami, Florida for $25,000. Notice of the sale was published in the Miami Review, a newspaper circulated in Dade County. On August 28, 1979, the Clerk issued a Certificate of Title pursuant to Chapter 45, Florida Statutes. This Certificate certified that Intimo Lounge, Inc.`s alcoholic beverage license (4-COP, license no. 23-1901) had been sold to Rene Valdes on August 17, 1979, and that "no objections to the sale have been filed within the time allowed for filing objections." (Testimony of Valdes; P-5, P-6) Although DABT was aware of the protracted mortgage foreclosure litigation involving the Intimo Lounge, Inc. beverage license --which it had earlier revoked -- it never protested or sought to block the foreclosure action. It was not a party to the action; neither did it attempt to become one. (Testimony of Barone, Valdes) In September, 1979, a month after the judicial foreclosure sale, Nathaniel Barone, counsel for Intimo Lounge, Inc., wrote R. B. Burroughs, Jr., Secretary of the Department of Business Regulation, asking what steps were necessary to keep the Intimo Lounge, Inc. beverage license viable. An internal memorandum suggests that DABT was, at first, unprepared to answer that question and preferred, instead, to delay answering until an application for the license was filed. But, on October 4, 1979, Harold F. X. Purnell, the Department's General Counsel replied on behalf of Secretary Burroughs: It is the Division's position that the . . . license has been and presently is revoked pursuant to the actions pre- viously taken by [DABT]. Further, that in the absence of an order of appropriate jurisdiction entered in a proceeding to which the Division is a party we are powerless to transfer such license. (Testimony of Barone; P-7, P-10) Meanwhile, Rene Valdes, notified DABT of his purchase of the Intimo Lounge, Inc. beverage license and asked that it be held in escrow while he found a suitable purchaser and location. When DABT refused, Mr. Valdes petitioned the court, which had rendered the foreclosure judgment, to require DABT to process and transfer the license. The court denied his petition, at least in part, because DABT was not a party to the proceeding. After the court hearing, Mr. Valdes, together with his attorney, Charles Kelly, and DABT's counsel, Mr. Purnell, met outside the chambers and discussed their next step. Mr. Kelly discussed seeking a mandamus ordering DABT to issue the license. Mr. Purnell suggested, instead, that Mr. Valdes find a location and purchaser for the license, then submit an application to DABT -- something which Mr. Valdes had not yet done. Although Mr. Purnell did not assure them that the application would be approved, both Mr. Valdes and Mr. Barone gained an impression that it would be. 2/ Mr. Valdes, following Mr. Purnell's suggestion, found a location and buyer, then applied for a transfer of the license. DABT's denial resulted in this proceeding. (Testimony of Barone, Valdes) Under Section 561.65(1), Florida Statutes (1977), a lender licensed by the state holding a lien on an alcoholic beverage license had the right to enforcement of his lien against the license within 12 days after any order of revocation, provided it was revoked for causes which the lienholder had no knowledge and did not participate. If the lienholder purchased the license at foreclosure sale, he could operate under it or transfer it to a qualified person. Until August 17, 1980, it was DABT's long-standing practice and policy to make no distinction between licensed and unlicensed lenders (lien-holders). It allowed both licensed and unlicensed lienholders to file notice of liens against beverage licenses and honored the subsequent transfer of the license if the lien was enforced within 12 days of revocation. This practice was abruptly changed on the basis of an agency legal opinion. On August 17, 1980, one month before Gui-Dom filed its application, DABT's General Counsel rendered a legal opinion limiting Section 561.65 relief to lenders licensed by the state. After that date, until 1981, when the legislature removed the "licensed lender" language of Section 561.65, DABT applied Section 561.65 literally and only accepted liens filed by licensed lenders. (Testimony of LaRosa; P-13) But in October, 1980, DABT did not deny Gui-Dom's application for transfer of the Intimo Lounge, Inc. license because Armando Calo, the lienholder, lacked a lender's license. Instead, the application was denied because the license had been earlier revoked. As later explained by Barry Schoenfeld, DABT's Chief of Licensing: 2 [DABT] felt at the time that . . . there really was no license, that the license had already been revoked, and that there was no license for the court to sell [to Valdes]. (P-13, p. 25). But Section 561.65 specifically permits liens, under specified conditions, to survive license revocation. When asked to explain DABT's position in light of Section 561.65, Mr. Schoenfeld replied, "I don't know that I can explain it." (P-13, p. 16) Neither could Mr. Schoenfeld adequately explain why, in cases similar to this, DABT has approved license transfers while, here, they have not. (P-13, p. 23) It was not until after the denial of Gui-Dom's application that DABT contended that Section 561.65, Florida Statutes (1977), provides no relief because Armando Calo was not a licensed lender. (P- 9, P-13). Rene Valdes, a beverage license broker, operates a business known as "Beverage License, Inc." He specializes in obtaining and transferring alcoholic beverage licenses for clients and has a working knowledge of the Beverage Law, including DABT rules and practice. When he purchased the Intimo Lounge, Inc. license at the judicial sale, he did not know that it had been revoked by DABT. He did, however, know that there was license revocation litigation between Intimo Lounge, Inc. and DABT. He also knew that DABT had issued an emergency order suspending Intimo Lounge, Inc.'s license; and he knew that there were circuit court foreclosure proceedings involving the license. Yet he failed to ascertain the status of the license -- either by checking the files of DABT or the circuit court. But even if he had discovered that the license had been revoked, under DABT's long-standing practice and interpretation of Section 561.65, it would have made no difference. The license would have "survived" revocation because Armando Calo had timely enforced his lien. And it could have been sold at a judicial sale and transferred to a new qualified purchaser. (Testimony of Valdes, Harris; P-13) DABT has provided no record foundation for its abrupt discontinuance of prior agency practice and policy in August, 1980, a policy which allowed both licensed and unlicensed lien holders to file and timely enforce liens against beverage licenses. This policy enabled a lien to survive license revocation; and the license, which had been revoked earlier could then be transferred by judicial sale. The only explanation given for the change in policy, a change which DABT now relies on as cause for denying Gui-Dom's application, is that the agency changed its legal interpretation of Section 561.65 (1977). (Testimony of LaRosa; P-13)
Recommendation Based on the foregoing, it is RECOMMENDED: That Gui-Dom's application for transfer of alcoholic beverage license no. 23-1901, series 4-COP, be granted. DONE AND RECOMMENDED this 3rd day of February, 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 3rd day of February, 1983.
The Issue The issue for consideration in this matter is whether the Respondent's 1 APS license 15-00386 should be disciplined because of the matters alleged in the Notice to Show Cause filed herein.
Findings Of Fact At all times pertinent to the allegations in issue here, the Division was the state agency responsible for the licensing of the sale of alcohol and alcoholic beverages in Florida. Respondent operated the S & D Food Market at 531 Blake Avenue, Cocoa. On August 27, 1991, SA Wylie, a member of the Division's Orlando office, was, along with several other Special Agents, including SA Felton, assisting the Florida Department of Law Enforcement to serve search warrants and search covered premises, including that of the Respondent. When he arrived at the Respondent's facility he asked the clerk on duty to show him the alcoholic beverage license for the store and determined it permitted only the sale of packaged beer for off-premises consumption. He conducted an inspection of the store to insure only beer was being sold in compliance with the license and discovered several bottles of wine in the cooler along with wine cooler and beer. These items were in the display section open to the public. Mr. Wylie went around back into the cooler and found more wine, and when he went into the store's back storage room, found cases of wine stacked up against the wall. When he saw this, he went back to the clerk and asked why wine was being sold when the license permitted only the sale of beer. The clerk claimed to know nothing about it. Wylie asked for the invoices for the wine purchases and the clerk went to get them. While waiting in the office, Mr. Wylie also saw several cartons of cigarettes which showed a Publix stamp on the end. The presence of these stamps on the cartons indicated to him that the cigarettes had been purchased at Publix and not from a wholesale distributor. He assumed the cigarettes were for resale, though all other cigarettes in the store were in the display rack out front. These cigarettes were legal. When the clerk came back with the invoices, Wylie also asked him for the purchase receipt for the cigarettes and the clerk went to get that, too. In the meantime, SA Felton arrived on the scene and Wylie turned over all the wine and the cartons of cigarettes to her. Felton inventoried the wine and determined there were in excess of 76 full cases of wine in addition to numerous loose bottles.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered in this case dismissing the allegation that Respondent, Edward Andre Jones, possessed cigarettes not purchased from a wholesale dealer, but finging him Guilty of the allegation of possessing unauthorized alcoholic beverages on the premises covered by 1 APS license 15- 00386; placing his license on probation for one year, and assessing an administrative fine of $1,000.00. RECOMMENDED in Tallahassee, Florida this 27th day of January, 1993. ARNOLD H. POLLOCK 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 27th day of January, 1993. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Lane Vaughn, Esquire 2007 South Melbourne Court Melbourne, Florida 32901 Janet E. Ferris Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007
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
Findings Of Fact 1718, Inc. held alcoholic beverage license number 58- 1581, Series 2-Cop; for the premises of the Fox Hunter, 1718 South Orange Avenue, Orlando, Florida, at all times relevant to these proceedings. The license was issued on June 18, 1981. Although the testimony of Captain Jack B. Wallace that John and Fay Knight (Knights) were the owners of the real property located at 1718 South Orange, Orlando, Florida, went unrebutted, the record does not reveal the date when John and Fay Knight became the owners of the real property located at 1718 South Orange Street, Orlando, Florida. The Knights were absentee landlords and leased the premises to 1718, Inc. d/b/a/ Fox Hunter (Fox Hunter) through a real estate agency in Orlando, Florida. On June 3, 1985 Petitioners mailed a letter to the Knights informing them that the alcoholic beverage license of Fox Hunter had been suspended on an emergency basis due to 13 alleged sales of narcotics on the premises by employees of Fox Hunter; that Respondent had requested a hearing on the charges; that Petitioner would seek license revocation with prejudice as provided in Section 561.58, Florida Statutes (1983); that the Petitioner would present evidence at the hearing in support of license revocation with prejudice; and that the Knights would be advised of the date, time and location of the hearing at a later date. The record does not reveal that Petitioner ever advised the Knights as to the date, time and location of the hearing, however, counsel for Respondent announced at the time of the hearing that he would be representing the Knights. Additionally, the record does not reveal that a copy of the original or Amended Notice To Show Cause was ever furnished to the Knights. Nor does the record reveal that the Knights had any knowledge of any previous violations at the premises. On April 29, 1985, Orlando Police Officer Kerry Farney (Farney) went to the premises of Fox Hunter and spoke to dancer Joyce Travis concerning the purchase of cocaine. Joyce agreed to sell Farney a half gram for $50.00. Farney gave Joyce $55.00, including $5.00 for a dance which she performed, and Joyce returned to Farney a dollar bill wrapped around two- plastic packages of cocaine. Officer Farney returned to the Fox Hunter on April 30, 1985, and spoke with dancer Lisa Nolen a/k/a Dusty concerning the purchase of a quarter gram of cocaine. Dusty agreed to sell the cocaine and obtained $25.00 from Farney. She later returned to Farney and handed him a plastic package containing cocaine. Officer Farney again returned to the Fox Hunter on May 2, 1985 and was later met there on this same day by Investigator Rodney Russ (Russ). The Officers arranged to purchase cocaine from the dancer Dusty. Farney gave Dusty $30.00, $5.00 for a dance and $25.00 for a quarter gram of cocaine. Russ gave Dusty $50.00 for one half gram of cocaine. After going into the dancers' locker room, Dusty returned to the officers and handed to Farney a dollar bill wrapped around two plastic packages of cocaine and asked Farney to pass it to Russ. Farney passed the cocaine wrapped in the money to Russ which Russ opened and inspected the two plastic-packages of cocaine contained therein. Later that same night Dusty delivered the cocaine to Farney which he had paid for earlier. Russ returned to the Fox Hunter on May 3, 1985 and entered into conversation with dancer Laura, who asked if he was looking for a quarter gram of cocaine. Russ stated that he wanted a half gram and Laura responded that she would see what she could do. After speaking with an unknown male patron, Laura returned to Russ and stated that all he had left was three- tenths of a gram for $30.00. Russ stated that he would take the three tenths of a gram and gave Laura $30.00. Laura again approached the unknown patron and then returned to Russ after being assured by Russ that he was not a cop or with law enforcement, placed a bill in his pocket. Russ removed and opened the bill and inspected the plastic package of cocaine. Russ returned to the Fox Hunter on May 7, 1985 and entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. Joyce stated that she would be able to get it later. Joyce subsequently asked Russ how much he wanted to buy and Russ responded that he wanted a half gram. Russ gave Joyce a $100.00 bill and she went into the women's dressing room. Joyce later returned to Russ and gave him $25.00 change wrapped around two clear plastic packages of cocaine. Russ returned to the Fox Hunter on May 8, 1985, and was solicited by dancer Joyce for the purchase of two beers. Russ returned to the premises of the Fox Hunter on May 9, 1985, and entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. Joyce left Russ to talk to an unidentified black male and returned to inform Russ that she could get the half gram of cocaine from the black male after he split it up and that Russ would have delivery soon. The male went into the restroom and when he emerged from the restroom, Joyce approached him and then went into the women's restroom. After exiting the restroom, Joyce performed a dance for Russ, during which she told him to take a dollar bill out of her garter. Russ took the dollar bill and opened it up to inspect two tinfoil packages of cocaine. Russ returned to the licensed premises on May 10, 1985, and again entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. When Joyce agreed, Russ handed her $75.00. Joyce subsequently returned to Russ and handed him a plastic package of cocaine which Russ placed into the cellophane wrapper of his cigarette pack. Joyce stated that the person from whom she had obtained the cocaine only had a quarter gram but would be getting a delivery soon, at which time Joyce would give Russ his other quarter gram. Russ did not obtain the additional quarter gram prior to leaving the premises on this occasion. Russ returned to the Fox Hunter later the night of May 10, 1985 and spoke with Joyce about obtaining his remaining quarter gram of cocaine and she advised him that delivery had not been made. Russ then talked with dancer Laura about obtaining some cocaine. Laura first said that it would be after 2:00 a.m. when the bar closed but when Russ told her he could not wait that long she obtained a short quarter gram from an unidentified white male. Laura then left to go into the women's restroom. When she returned to Russ, Laura placed a plastic package of cocaine in his pocket stating that she had tried the substance and it was good. Russ removed the package from his pocket and inspected it. As Russ was leaving, Joyce approached him near the entrance and handed him a plastic package containing his remaining quarter gram of cocaine. Russ returned to the premises of the Fox Hunter on May 15, 1985, and was solicited by the dancer Dusty to purchase her a bottle of champagne for $5.75, which he did. Russ again went to the Fox Hunter on May 16, 1985 and entered into conversation with the dancer Laura concerning the purchase of a half gram of cocaine. Laura stated that she would be able to get him some. Laura approached and spoke to an unknown patron and the dancer Michelle, after which she went into the women's dressing room. She shortly returned to Russ and placed two plastic packages of cocaine into his pocket. On May 17, 1985, the Respondent served an Emergency Order of Suspension and Search Warrant on the Fox Hunter. Located during the search was a dollar bill wrapped around a package of cocaine, a plastic package of cocaine, a package of marijuana and several marijuana cigarettes. The sale or delivery of the cocaine on April 29, 30, 1985 and May 2, 3, 7, 9, 10, 16, 1985 to investigator Farney and Russ took place in and around the dance area of the premises. On April 20, 1982 the Respondent served a letter of warning to Fox Hunter alleging that on August 4, 1981, an employee had solicited the sale of an alcoholic beverage in violation of Section 562.131, Florida Statutes and further alleging that on October 30, 1981, an employee had delivered a controlled substance to a police officer on the premises. No proof was offered as to the disposition of those matters, or indeed, whether the incidents ever actually took place. In July, 1984, the manager of Fox Hunter --Lawrence Siegel -- apprehended one of its employees and a patron engaged in a drug transaction: he detained them and called the Orlando Police Department, and the two were taken into custody. The Petitioner's response to this action was to issue a citation against the Fox Hunter for the alleged sale, even though it was Lawrence Siegel who uncovered the transaction and apprehended the perpetrators. Mr. Siegel contacted Lt. Farmer of the Orlando Police Department and requested assistance in placing an undercover officer in the lounge as an employee. Mr. Siegel wanted to interdict narcotics and assist in the apprehension of the persons who might be dealing with them. However, the request was turned down because, as Lt. Farmer explained, the police department did not have the necessary resources to assist in this manner. The record is not clear as to the period of time Lawrence Siegel maintained contact with the police, but he did contact them about the problem, identifying suspected dealers and providing names and descriptions of vehicles. However, Jason Robaudo replaced Lawrence Siegel as night manager during this period of time. James Robaudo was present in the licensed premises during most of, if not all of, the time during which the unlawful activities accursed. Although the record is not entirely clear on the details, there were other alcoholic beverage establishments in the same general area that had been charged with the sale of controlled substances on the premises where a heavy fine plus a short license suspension had been imposed rather than a license revocation or a license revocation with prejudice.
Recommendation For all of the foregoing reasons it is RECOMMENDED that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 58-1581, Series 2-COP, issued to 1718, Inc., d/b/a Fox Hunter. Respectfully submitted and entered this 3rd day of September, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 3rd day of September, 1985. COPIES FURNISHED: Louisa E. Hargrett, Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Richard L. Wilson, Esq. 1212 East Ridgewood Street Orlando, Florida 32803 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr. Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Petitioner originally held alcoholic beverage license no. 26-532, Series 4-COP, as an individual. He transferred this license to M & S, Inc., a Florida corporation, about one year ago. Petitioner is a 50 percent shareholder in this corporation. Jimmy G. Maddox holds the other 50 percent stock interest. Petitioner and Maddox are currently engaged in civil litigation involving the corporate licensee. Respondent referred to this civil suit in its notice disapproving the transfer application, citing the pending litigation as a basis for disapproval. Petitioner has not purchased the license from the corporation or entered into any agreement in contemplation of license transfer. Rather, he believes he is entitled to the return of the license because he received no consideration for the prior transfer from either the corporation or Maddox. Alternatively, Petitioner asks that the prior transfer to the corporation be set aside due to this lack of consideration.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a Final Order denying Petitioner's request for transfer of alcoholic beverage license no. 26-532, Series 4-COP. DONE and ENTERED this 6th day of April, 1982 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1982. COPIES FURNISHED: James A. Fischette, Esquire Suite 1916 Gulf Life Tower Jacksonville, Florida 32207 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Herbert T. Sussman, Esquire 3030 Independent Life Building Jacksonville, Florida 32202 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether respondent's alcoholic beverage license should be revoked or suspended on grounds that its corporate officer was convicted of a federal crime--Conspiracy to Import Marijuana.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: In 1977, the Division issued an alcoholic beverage license No. 23-276, series 4-COP, to licensee. (Joint Exhibit Nos. 1, 8.) At all times material to this proceeding, Eugene Willner has been an owner and officer of the licensee corporation. On August 27, 1980, Eugene Willner was convicted of violating federal law; the U.S. District Court of the Eastern District of Louisiana found him guilty of Conspiracy to Import Marijuana, a violation of Title 21 U.S.C. 963. (Joint Exhibit Nos. 1, 4, 8.) By application dated March 10, 1981, the licensee sought Division approval to transfer the beverage license in question to a new owner. The Division notified licensee that it intended to deny the application because of the pending administrative charge against the licensee, the charge which is the subject of this proceeding. (Joint Exhibit Nos. 5, 6, 8.)
Recommendation Based on the foregoing, it is RECOMMENDED: That licensee's alcoholic beverage license No. 23-276, series 4-COP, be REVOKED. DONE AND RECOMMENDED this 3rd day of February, 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 3rd day of February, 1982.
