The Issue Whether Respondents violated the terms of probation of the Consent Agreement, effective January 12, 1990. Whether Respondents committed the violations alleged in the notices to Show Cause.
Findings Of Fact As to Case No. 90-2711: At all times pertinent to this case, Respondents were doing business at 3200 South Orlando Drive, Sanford, Seminole County, Florida as Cesare's Palace, under alcoholic beverage license number 69-00467, series 4-COP-S. On April 19, 1989 a formal hearing was conducted in Sanford, Florida, and presided over by Hearing Officer Mary Clark of the Division of Administrative Hearings, in which the parties were the same. On August 4, 1989, a Final Order was issued in which the Division Director adopted in toto Hearing Officer Clark's findings of fact, all but one of her conclusions of law, and adopted her recommendation for a finding of guilty. The Division Director changed the recommended penalty to a twenty day suspension and a $1,000.00 civil penalty. The twenty day suspension was to commence, and the $1,000 civil penalty was to be paid on August 23, 1989. Respondents timely appealed Petitioner's Final Order on August 14, 1989. On August 22, 1989, Petitioner stayed the imposition of the penalty pending appellate review. Respondents and Petitioner executed a Consent Agreement in settlement of the case. Accordingly, Respondents withdrew their appeal, and timely paid the $1,000.00 civil penalty. Petitioner suspended imposition of the 20 day license suspension for 12 months commencing on January 12, 1990. The Agreement and the Addendum thereto were signed by both Respondents and their attorney. Respondents agreed to abide by certain terms of probation, as set forth in the Consent Agreement, and acknowledged that violation of one or more of the terms of probation would result in the imposition of the 20 day license suspension. The terms of probation called for Respondents to affirm in writing not later than 30 days after the effective date of the Consent Agreement, to the Division of Alcoholic Beverages and Tobacco, that certain specified tasks had been accomplished. The Consent Agreement became effective on January 12, 1990 when it was accepted by the Director, Division of Alcoholic Beverages and Tobacco. On or about February 11 (a Sunday) or February 12, 1990, Law Enforcement Investigator David Ramey went to the licensed premises to ascertain whether Respondents had accomplished the tasks which were to be affirmed in writing to the Division as being accomplished. The task of posting signs indicating that identification was required had been accomplished. The task to provide "written policies and procedures for employees to ensure that they are familiar with Florida drivers licenses, Florida identification cards, and passports; that they are sensitive to the importance of ensuring that alcoholic beverages are not sold to the underaged; that they are capable of, given a birth date, computing age; and that they understand that service of alcoholic beverages must be refused to those whose age and/or identification appear questionable to the employee" was not accomplished. The task of training and instructing all employees on the written policies and procedures relative to identification was not accomplished. The task of carefully monitoring employees to ensure that they are following company policy was not accomplished. No written affirmation reporting accomplishment of the above tasks was forwarded to the Division either within or without the thirty day period. The Consent Agreement included as a term of probation that Respondents become certified responsible vendors by March 1, 1990. Respondents' Application for Certification as a Responsible Vendor is dated March 5, 1990; the application was not forwarded to the Bureau of Vendor Training until April 7, 1990. Respondents had not become certified responsible vendors by March 1, 1990. William Walter Proctor was born on October 1, 1970 and has been serving as an underaged operative with the Division of Alcoholic Beverages and Tobacco since late January or early February 1990. When serving as an underaged operative, Mr. Proctor is to bring his drivers license, and to possess only the money given to him by the investigators. If asked for identification, Mr. Proctor is instructed to provide his drivers license which accurately reflects his date of birth. If asked his age, Mr. Proctor is instructed to answer truthfully. On March 6, 1990, Proctor was serving as an underaged operative with the Division of Alcoholic Beverages and Tobacco. He was working with Investigators Dave Ramey and Mark Douglas. During the evening Proctor entered the licensed premises, Cesare's Palace, located at 3200 South Orlando Boulevard, Sanford, Florida. Investigator Douglas also entered the premises. Proctor went to the bar and took a seat. The bartender took Proctor's order for a Michelob light beer, and asked to see Proctor's identification. Proctor gave the bartender his drivers license. The bartender took the license to the end of the bar, held it under a light, and then returned the license to Proctor and handed him the beer he had ordered. Proctor observed the bartender open the Michelob Light beer, and place the beer in front of Proctor. Proctor took possession of the beer, and the bartender took possession of the $1.85 provided by Proctor in payment for the beer. Proctor immediately turned the Michelob Light beer over to Investigator Douglas. Proctor identified Petitioner's Exhibit 3 as the drivers license he provided the bartender at Cesare's Palace on March 6, 1990. Mark Douglas is a law enforcement investigator for the Division of Alcoholic Beverages and Tobacco. He, along with Investigator Ramey were working with the underaged operative William Walter Proctor on March 6, 1990. Investigator Douglas entered the licensed premises, Cesare's Palace around 9:15 p.m. on the 6th of March. Some ten minutes later, underaged operative Proctor entered the premises. Investigator Douglas observed Mr. Adams open a bottle of Michelob Light beer and place it in front of Mr. Proctor. Investigator Douglas deals with alcoholic beverages every day of his working life. He is familiar with Michelob beer, and has seen bottles of Michelob Light before. The bottle of Michelob Light he received from Mr. Proctor on the 6th of March looked like the other such bottles he had seen. Additionally, Investigator Douglas took a sample of the beer prior to destroying the remaining contents of the bottle. Investigator Douglas has been trained in identifications; drivers licenses in particular. He knows that the yellow background against which Proctor's picture is depicted on Petitioner's Exhibit 3 means that the individual to whom the license was issued was under 21 at the time of the issuance. Investigator Douglas identified Respondent Polidoro as having been seated at the end of the bar when the sale to Proctor occurred. When Mr. Adams was looking at Mr. Proctor's drivers license, Respondent Polidoro leaned forward and looked down the bar. Respondent Polidoro has very bad vision; he is both nearsighted and farsighted. His glasses were not on at the time of the events involving Adams and Proctor. Respondent Polidoro has known Adams for two years and has complete confidence in him. On March 6, 1990, Respondent Polidoro was not aware that his bartender, Adams wore reading glasses. Adams made the mistake of forgetting his glasses. He left them in his room. Thus he was without his reading glasses while tending bar at the licensed premises on March 6, 1990. Respondent Polidoro is of the opinion that he has twice been entrapped by Petitioner into selling an alcoholic beverage to a minor, and that Petitioner, on 15 other occasions has failed to entrap Respondents. As to Case No. 90-5983: Marino Benevides went to work for Respondents as the housekeeping manager of the Cavalier Motor Inn, located at 3200 South Orlando Drive, in April, 1988. On or about May 1, 1989, Benevides leased from Respondents the lounge that is part of the Cavalier Motor Inn complex. The rent was $7500 a month, and was paid to Respondent Polidoro. Although the lease agreement was reduced to writing, it was never signed. Benevides hired and paid the employees of the lounge. Benevides hired and paid for the entertainment in the lounge. Benevides paid the utility bill for the lounge. Had there been net profits generated by the lounge, the net profits would have been received by Benevides. Benevides' obligation to Respondents was to pay them a fixed sum of $7500 a month. Payment of distributors for alcoholic beverages was made by the Respondents who were then reimbursed by Benevides. Benevides could not pay the distributors directly because the liquor license was not under his name. Respondent Milazzo was aware that leasing the lounge was a violation. The Respondents had the authority to "kick out" Benevides and that is what they did on January 27, 1990. "No violations of Section 562.11(1)(a), Florida Statutes during the probationary period" is a term of probation in the Consent Order.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondents be found guilty of the following offenses: Respondents violated the terms of probation contained in the Consent Agreement, dated January 12, 1990, as follows: Respondents did not affirm to the Division, prior to February 12, 1990, that written policies and procedures for employees to ensure compliance with the Florida Beverage Laws had been established; that all employees had been properly trained in the identification of underaged persons; and did not carefully monitor all employees to ensure that they were following company policy. 1990. Respondents did not become certified responsible vendors by March 1, On March 6, 1990, during the probationary period, a bartender employed by Respondents, on the licensed premises, sold an alcoholic beverage to a person under 21 years of age. On March 6, 1990, a bartender employed by Respondents sold an alcoholic beverage on the licensed premises to a person under 21 years of age, in violation of Sections 562.11 and 561.29, Florida Statutes, and Respondents were negligent in failing to exercise due diligence in supervising its employees and maintaining surveillance over the premises. Respondents failed to maintain control of the licensed premises by leasing the premises to an independent contractor contrary to Rule 7A-3.017, Florida Administrative Code. It is further RECOMMENDED that: Respondents' probation be revoked and that the alcoholic beverage license held by Anthony J. Milazzo and Cesare A. Polidoro, License No. 69-00467, Series 4-COP-S be suspended for 20 days. Based on the sale of an alcoholic beverage to a person under age 21 and for failure to maintain control of the licensed premises, Respondents' alcoholic beverage license, No. 69-00467, Series 4-COP-S, be suspended for 90 days, to run concurrently with the suspension for violation of probation, pay a fine of $1,000 and submit proof of compliance with the terms of the Consent Agreement prior to reinstatement of the license. DONE AND ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 30th day of November, 1990. 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 of Fact Accepted in substance: paragraph 1 through (blank on original document-ac) Respondent did not file proposed findings of fact. COPIES FURNISHED: John B. Fretwell Deputy General Counsel Dept. of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Richard A. Colegrove, Jr., Esquire 101 W. First St., Suite C Sanford, FL 32771 Leonard Ivey, Director Dept. of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronough St. Tallahassee, FL 32399-1000 Joseph Sole Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000
The Issue Whether Respondent's alleged possession of marijuana and paraphernalia commonly associated with its trafficking and sale justifies suspension or revocation of his Florida teaching certificate.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: I. BAKER holds Florida teaching certificate No. 403108. From 1976 to 1980, he taught fourth and fifth grades at Fessenden Academy, an elementary school located in a rural area of northern Marion County. He was a competent classroom teacher. In 1979, upon recommendation of his school principal, the Marion County School Board granted him continuing contract status--a form of tenure. (Testimony of Broxton, Prehearing Stipulation.) II. In the early part of 1979, BAKER--against the advice of his school principal--became involved in helping operate a small nightclub in Ocala known as the Club Aquarius ("Club"). Although there was no School Board policy against part-time employment by teachers, BAKER's principal advised against becoming involved with the Club because of its poor reputation in the community. However, BAKER's subsequent operation of the Club Aquarius did not adversely affect his teaching performance. (Testimony of Broxton.) During his employment at the Club, several members of the community informed BAKER's school principal that they suspected illicit drugs could be obtained there. In response to his principal's inquiry, BAKER repeatedly denied that anyone at the Club was involved in drug dealing. (Testimony of Broxton.) II. The owners of the Club (Mr. and Mrs. Clyde Howard and Dr. Ernest Lamb 2/ ) applied for and were issued a "2-COP" license by the Department of Business Regulation, Division of Beverage, in 1977. Only beer and wine may be sold under such a license. Possession of distilled liquor on the premises is not allowed. In accordance with the Division's requirements, a "Sketch of the Licensed Premises" was made by the Division of Beverage agent, verified by one of the owners, and attached to the application. The owners also executed an attached affidavit swearing that the sketch was "substantially a true and correct representation of the premises to be licensed and . . . [agreeing] that the place of business, if licensed, may be inspected and searched during business hours . . . without a search warrant . . . ." (P-1.) The sketch depicts those portions of the Club Aquarius building where the license is intended to be in effect-- where routine beverage inspections may be conducted without a search warrant. The owners understood that adjacent property which they controlled and which was accessible by passage from the nightclub was considered part of the licensed premises and subject to warrantless search under the Beverage Law. In order to remove such adjoining property used for residential purposes from the licensed premises (and sketch attached to the application) they understood that the passage way must be permanently sealed. (Testimony of Scroggin; P-1.) The sketch shows the licensed premises of the Club consists of two floors. The first floor includes the main bar, dance floor, kitchen, restrooms, storage room, and package sales area. Stairs on each side of the dance floor lead to the second floor, which consists of restrooms, a balcony overlooking the dance floor, and several additional rooms, one of which contains a wooden bar. The second floor area provides a quiet atmosphere for customers preferring to enjoy drinks and dance floor entertainment from the overlooking balcony. The second floor area permits free passage and is directly connected to the Club's first floor business area. (Testimony of Scroggins, Jones, Imperial; P-1.) III. At approximately 4:45 p.m., on January 24, 1980, Richard Jones and Michael Imperial--Beverage officers employed by the Florida Division of Alcoholic Beverages and Tobacco--began an inspection of the Club Aquarius to determine compliance with the Beverage Laws. Neither officer suspected or had reason to believe that illegal alcohol or illicit drugs might be found on the premises. The last time Agent Jones had inspected the Club to ascertain compliance with the Beverage Laws was in February, 1979; during that inspection, no illegal alcohol or illicit drugs had been found. Agent Imperial had inspected the Club early in 1978, and found nothing out of order. The practice of their Division was to routinely inspect the premises of licensed alcoholic beverage establishments at least once per year. On that afternoon of January 24, 1980, the Beverage agents decided on their own initiative to inspect the Club because they were in the vicinity and had time to conduct a periodic routine inspection. (Testimony of Jones, Imperial, Deen.) After identifying themselves, the two Beverage officers informed BAKER and his brother, Clyde Baker--who were operating the Club--that a routine beverage inspection would be conducted. The officers then inspected the cooler, bar, and surrounding first floor area. After finding some empty cognac bottles in a trash can, Officer Jones informed Clyde Baker that the presence of such bottles on the premises was unlawful. Jones then asked him to show him the upstairs part of the Club. Together they climbed the stairs to the second floor. There, Officer Jones observed that a door, with an "Office" sign on it, was ajar. He entered the room and observed two bottles of distilled liquor in plain view on a bar: that bar is depicted on the "Sketch of Licensed Premises" attached to the beverage license application, infra. After placing Clyde Baker under arrest for allowing distilled liquor on an establishment with a 2-COP license, Officer Jones continued to inspect the room for additional contraband. He searched a chest of drawers and found in the bottom drawer a triple beam balance scale and approximately 40 small paper envelopes commonly referred to as "nickel bags" --paraphernalia commonly used by drug dealers to measure and sell illicit drugs. He also discovered two plastic bags--one, 6" x 6", and another, 10" x 10". The smaller bag contained what appeared to be marijuana; the other contained what appeared to be marijuana residue. Upon discovery of what appeared to be marijuana, Officer Jones exclaimed "marijuana". BAKER, who had just come upstairs with his wife, entered the room and responded: "That's not marijuana, that's just my seeds." (Tr. 43.) Agent Jones immediately arrested BAKER for possession of marijuana, and escorted him downstairs. After resuming his search of the second floor area, Jones entered another room depicted on the "Sketch of Licensed Premises"; there he found a metal can--approximately 10" x 12"--which appeared to contain marijuana residue. (Testimony of Jones; P-1.) The two upstairs rooms where the marijuana and paraphernalia were found were depicted on the beverage license application as a part of the licensed premises. They were unlocked and accessible from the first floor; one room contained a bed, chest of drawers, dresser, clothes, and other personal effects; the other room contained a cot. Both rooms looked as if someone might sleep in them for several hours or an evening. At hearing, the parties stipulated that BAKER sometimes used one of the rooms as his residence. Immediately after the marijuana was found, Clyde Baker stated that he was manager of the Club and responsible for the marijuana and liquor being there. It is concluded that the Club manager exercised dominion and control over the second floor rooms. However, most of the equipment and supplies normally used in the operation of the nightclub, such as beer, wine, coolers, dance floor, and barstools, were located on the first floor. Customers could come and go without entering the second floor area. (Testimony of Jones, Prehearing Stipulation; P-1.) BAKER was subsequently charged with unlawful possession of less than 20 grams of marijuana pursuant to Section 893.13, Florida Statutes. The School Board of Marion County thereupon suspended him from his teaching duties at Fessenden Academy. Crime lab analysis confirmed that the two plastic bags and metal can contained marijuana residue with a total weight of less than 20 grams. Fingerprints on the metal can, and plastic bags were identified as belonging to BAKER. On May 7, 1980, BAKER pled guilty to the charge of possession of less than 20 grams of marijuana. The County Court of Marion County withheld adjudication of guilt and sentenced BAKER to pay $500 in court costs, and suspended a sentence of one year of imprisonment in the county jail upon the condition that BAKER would commit no further criminal offenses for a period of one year. (Testimony of Broxton, Prehearing Stipulation; P-2, P-3.) III. School Board hearings involving BAKER's suspension were televised and his involvement with marijuana has become widely known in the community. Newspapers have published accounts of the criminal charges and their disposition. His arrest and subsequent plea of guilty to the charge of possession of marijuana have gained notoriety and seriously reduced his effectiveness as a teacher for the Marion County School Board. Parents of children at Fessenden Academy would object to BAKER resuming his teaching duties there. Teachers must serve as examples and impart character and moral values to their students. BAKER's involvement with marijuana has interfered with his ability to effectively carry out this important function. (Testimony of Broxton, Jones.)
Conclusions Petitioner has established that Respondent's possession of marijuana and paraphernalia commonly associated with its trafficking and sale violates Section 231.28, Florida Statutes (1979). Permanent revocation of his teaching certificate is warranted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the teaching certificate of Respondent, Clinton Baker, be revoked permanently. DONE AND ORDERED this 23rd day of March, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the clerk of the Division of Administrative Hearings this 23rd day of March, 1981.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 16-637 S, Series 4-COP, be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 5th day of August, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1983.
The Issue 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
Findings Of Fact Petitioner is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is 201 West, Inc., d/b/a Central City, who is the holder of alcoholic beverage license number 11-00259, Series 4-COP, a "quota license." Respondent's licensed premises is located at 201 West University Avenue, Gainesville, Alachua County, Florida. Craig Cinque is Respondent's sole director and corporate officer. Joseph Cinque, Craig Cinque's father, was formerly Respondent's sole director and corporate officer. Prior to becoming the owner of Central City, Craig Cinque managed the licensed premises on behalf of his father. During this period of time, the Division filed ten separate Notices to Show Cause against Respondent, alleging multiple sales to and consumption of alcoholic beverages by underaged persons. On August 29, 1989, the licensed premises was closed by an Emergency Order of Suspension. The administrative charges arising therefrom were resolved by a Stipulation and Consent Agreement, wherein the Respondent in that case admitted substantially to all of the violations. Craig Cinque individually executed the agreement, admitted responsibility for previous violations, and acknowledged that future violations of a similar nature could result in suspension or revocation of the alcoholic beverage license. The agency has issued numerous Notices to Show Cause against Respondent since the entry of the consent order. However, unproven Notices to Show Cause and unproven counts within any Notices to Show Cause are only unproven accusations, and as such are not probative herein even for purposes of showing "aggravation." Beverage Law Institute is an "approved trainer" under the Responsible Vendors Act, having been approved by the Petitioner as such. Petitioner certified Respondent Central City as a certified Responsible Vendor under the Act, on April 13, 1990. See, Subsections 561.701-561.706 F.S. Of the 483 nondistributor alcoholic beverage licensees in Alachua County, only 94 have been certified by Petitioner as Responsible Vendors. Of those 94, only 13 hold "4-COP" licenses, the category of license held by Respondent, which permits liquor, beer, or wine for consumption on premises or in a sealed container. Prior to the events of the instant Notices to Show Cause, and continuing through the 14-month period of the Notices to Show Cause and beyond, Respondent was engaged in a voluntary program designed to teach employees not to serve alcoholic beverages to underaged persons. Many of the materials therefor were provided by Beverage Law Institute. The training program and procedures involved multiple ID checkers at the front door. Also at the front door, wristbands to signify and quickly identify patrons of legal drinking age were issued. Once snapped on a customer's wrist, the band itself was stamped at a right angle across the customer's wrist to prevent or at least inhibit the wristband's transfer to an underage patron and to prevent a patron bringing in a counterfeit or "ringer" wristband. All patrons, regardless of age, received a stamp directly on the wrist to identify that they had paid their admission fee. Security personnel circulated inside the licensed premises checking drinks and wristbands, and waitresses were also instructed to check on drinks already purchased by customers. The training programs and procedures also involved Respondent's policy manual regarding IDs, extensive training and testing of employees, frequent oral reminders to employees concerning the law and concerning licensee policy, sporadic staff meetings regarding policy, videotaped instruction programs, provision of and instructions to employees to use an "ID Checking Guide" at the front door and at every internal bar within the licensed premises, confiscation of fake or questionable IDs at the door, 1/ and use of warning handbills given out to customers. Upon receipt, the handbills proclaiming the licensee's "of age only" policy were usually immediately discarded by customers. Some employees looked upon their training with more enthusiasm than others. Some employees considered the policy and training all for show. Most employees complied regularly with the requirements for training, review, and instructions. A few were lax in their compliance and had to be urged to attend staff meetings or to retest. In addition to all this, from the time the Responsible Vendor tests were available, all employees except two cashiers were tested according to the requirements of the Responsible Vendor Act and within the time frames provided therein. Every underage operative who testified admitted she or he had been "carded" at the door and that none had been issued wristbands. The parties stipulated that all of the individuals named in the four Notices to Show Cause (except for those alleged to have sold or given alcoholic beverages) were under the legal drinking age on the dates indicated by the respective Notices to Show Cause and that although each of these individuals "was actually in possession of alcoholic beverages as plead (sic), there was no evidence that any of the alcoholic beverages were obtained from Respondent's employees, agents, or servants." The stipulation listed the underage persons of the Notices to Show Cause but did not employ the term "consumption" which was specifically used only in the second Notice to Show Cause (GA11890496). Petitioner put on no witnesses as to "consumption." Likewise, Petitioner did not have admitted in evidence any confiscated alcoholic beverages alleged to have been sold by Respondent's agents/employees, nor did Petitioner present any laboratory reports to establish that any substance sold was alcohol. The only evidence of alcohol content is discussed infra. With regard to Craig Cinque's attitude and Central City's compliance with the Responsible Vendors Act, the testimony of Eileen Tenly and of William Cooter has been weighed and considered. Ms. Tenly is a totally noncredible witness whose testimony demonstrates an "axe to grind," and whose candor and demeanor is unpersuasive of anything except her animosity for Mr. Cinque. Petitioner's Investigator William Cooter, however, testified credibly that after having numerous conversations with Mr. Cinque on the subject of underage sales, Mr. Cinque stated that he was not worried about losing his alcoholic beverage license because he could get another one in his mother's name. On the other hand, Mr. Cooter, by his own testimony, has been invited by Mr. Cinque to instruct and has, in fact, instructed Mr. Cinque's employees on how to prevent underage drinking. The evidence as a whole, but most particularly that of Prince Miles, Respondent's janitor, who is a credible witness, is persuasive that patrons sometimes smuggle alcoholic beverages onto the licensed premises and that each time the establishment closes, commercial alcoholic beverage containers which are not part of the inventory sold by Respondent must be swept out. Since this smuggling activity must substantially reduce Respondent's profits, it is a logical inference that such smuggling is contrary to Respondent's policy and that Respondent does not encourage or condone it, whether done by adults or minors. I. Notice to Show Cause GA11890374; September 16, 1989 through February 9, 1990; sale to Toombs, Kittles, Goldtrap, and Ormsbee by Green, Halladay, Howell, and Grimes and possession by Peters, Conf, Kelly, Garcia, Fernandez, Shiskin, Brejhanan, Benz, Yawn, and Plettner All of the violations charged in Notice to Show Cause GA11890374 arose prior to Respondent's becoming a certified Responsible Vendor on April 13, 1990. On September 16, 1989, Ryan Conf and Alejandra Peters were each under the age of 21 and in actual possession of alcoholic beverages inside the licensed premises as pled. On September 19, 1989, Central City bartender David Green sold the Division's underaged operative, Bridgette Toombs, a liquid beverage in a long- neck, factory-produced 12-ounce bottle labelled "Michelob Dry." At that time, the licensed premises was not busy and Mr. Green noted that Ms. Toombs had no wristband. He therefore checked Ms. Toombs' underage ID and instructed her that since she was old enough to drink, she should go get a wristband. This transaction was observed by Petitioner's agent, Ms. Pendarakis, but Ms. Pendarakis did not overhear the conversation. After delivering a sample of the liquid beverage to Ms. Pendarakis in the ladies' room, Ms. Toombs crossed in front of Mr. Green's bar on her way to exit the licensed premises. Mr. Green sent word to Ms. Toombs by another Central City employee that he wanted to see her. Ms. Toombs complied with Mr. Green's request and showed him her underage ID once more. At that point, Mr. Green recognized his error in thinking that Ms. Toombs was 21 or over and called over several other Central City employees, all of whom viewed the ID showing Ms. Toombs was actually two months short of 19 years old. Mr. Green was not arrested until after the ID was passed around, so it may be inferred that his recognizing his mistake was not the result of any confrontation with Petitioner's agents or law enforcement officers or due to his perception that he had been "caught." Indeed, Petitioner's witness, Ms. Toombs, attributed Mr. Green's illegal sale to her as a mistake in subtraction. Mr. Green had previously successfully passed all tests required under the licensee's policy in existence before the Responsible Vendor tests were available. On October 20, 1989, Charlotte Kelly and Alezandro Garcia, who were under the age of 21, were each in the actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1989, Cesar Fernandez, who was under the age of 21, was in possession of an alcoholic beverage inside the licensed premises. On the same date, underage operative Megan Kittles was inside the licensed premises. She was not wearing a wristband, and her hand was stamped indicating that she was under 21. She first approached a white male bartender who checked her and refused to serve her. She then ordered a rum and coke from Respondent's bartender, Craig Halladay. Mr. Halladay did not check Ms. Kittles' ID and served her a liquid beverage which Mr. Szabo of the Division testified that he had identified by smell as containing alcohol. No one saw the drink mixed, and Mr. Szabo admitted that he did not know what kind of alcohol the drink contained. He stated that he "would not swear it was rum." Mr. Szabo also was not aware until formal hearing that Respondent sold any nonalcoholic mixed drinks. Although the evidence is weak, it is persuasive that Ms. Kittles was served alcohol. Mr. Halladay successfully passed the licensee's policy test before this incident and the Responsible Vendor test afterwards. Also on October 21, 1989, Matthew Goldtrap, another underage operative, ordered a "Budweiser" and obtained a 12-ounce bottle labelled "beer" from a floor waitress named Shannon Howell. Mr. Goldtrap had no wristband but did have a stamp on his wrist. He gave the container to Investigator Smith. Mr. Szabo then took both of Respondent's employees into custody. Mr. Goldtrap does not drink alcohol. Investigator Smith did not testify, but it is inferred from the description of the beer bottle and the circumstances of the transaction as a whole that Mr. Goldtrap was served an alcoholic beverage. Ms. Howell successfully passed the licensee's test prior to this incident. On January 19, 1990, Scott Shiskin, Michael Brejhanan, and Carolyn Benz, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. On February 9, 1990, Central City bartender Steve Grimes sold Petitioner's 19-year old operative Octavia Ormsbee a liquid beverage. Ms. Ormsbee, who had no wristband on, was first denied a sale of alcoholic beverage at the downstairs back bar after Respondent's bartender there checked her underage ID. Ms. Ormsbee then went to an upstairs bar and ordered a "Bud Light." She was told by Mr. Grimes, a bartender at that bar, that they were out of "Bud Light," and by agreement, a beer bottle labelled "Budweiser" was substituted. Ms. Ormsbee does not drink alcohol and did not testify that what she received from Mr. Grimes was alcohol. The bottle purchased by Ms. Ormsbee was turned over to Officer Byrd of the Gainesville Police Department. Officer Byrd, who is familiar with alcoholic beverages through his own education, training, practice, and experience, identified the contents of the bottle purchased by Ms. Ormsbee as being "beer." Officer Byrd turned the bottle over to Petitioner's agent Cooter. Also on this occasion, Preston Yawn and Eric Plettner, who were under the age of 21, were each actually in possession of alcoholic beverages inside the licensed premises. Mr. Grimes had successfully passed the licensee's policy test prior to this incident. All of the underaged operatives who testified concerning this Notice to Show Cause testified that Petitioner's adult operatives forbade them to drink (consume) what they were sold and that they did not consume any. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the minors actually named in the Notice to Show Cause constituted their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, mere possession does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 2/ Therefore, Petitioner has only established that on September 19, 1989 Respondent's bartender sold an alcoholic beverage to Petitioner's underage operative Bridgette Toombs; that on October 21, 1989, Respondent's bartender sold an alcoholic beverage to the Petitioner's underage operative Megan Kittles; that also on October 21, 1989, Respondent's floor waitress sold Petitioner's underage operative Matthew Goldtrap an alcoholic beverage; and that on February 9, 1990, Respondent's bartender sold the Division's underage operative Octavia Ormsbee an alcoholic beverage. One of these sales was clearly a mistake and two other operatives had to go to two bartenders each before an illegal sale was made. II. Notice to Show Cause GA11890496; June 8, 1990 through June 16, 1990; sale to Wearner by Edge and to Seligman by Lemberger and Bergine and possession by Tetstone, Lockey, Klug, Skipper, and Bissell On June 8, 1990, Jennifer Tetstone and Amy Lockey, who were under the age of 21, were in actual possession of alcoholic beverages inside the licensed premises. On June 16, 1990, Ann Klug, Shana Skipper, and Michael Bissell were in actual possession of alcoholic beverages inside the licensed premises. Also on June 16, 1990, Central City bartenders Michael Edge, Michael Bergine, and Robert Lemberger, respectively, sold each of the Division's underage operatives Kathy Wearner (who did not testify but who was stipulated to be underage) and Charles Seligman an alcoholic beverage. Neither underaged operative wore a wristband or was requested to produce an ID for purposes of the respective sales. As of date of formal hearing, the Respondent continued to employ these same bartenders. All of these bartenders had successfully completed the Responsible Vendor test before these incidents. Mr. Edge also had passed the licensee's earlier policy test. The underaged operative, Kathy Wearner, asked Michael Edge for "a Budweiser" and was sold liquid in a "Budweiser" beer bottle inverted in a drinking glass. Officer Rockey of the Gainesville Police Department convincingly described the liquid that came out of the bottle as beer, an alcoholic beverage. He turned the materials confiscated over to an unnamed agent of Respondent and has not seen them since. On the same date, Central City bartender Robert Lemberger sold a 12-ounce bottle labelled "Budweiser" to 18- year-old operative Charles Seligman. Mr. Seligman was at all times without a wristband and bearing a stamp on his hand. Mr. Seligman delivered the bottle he received from Mr. Lemberger to Officer Posey of the Gainesville Police Department who had watched the entire transaction. Mr. Seligman later purchased a 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to Officer Posey. Mr. Seligman purchased a third 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to one of Petitioner's agents, Ernest Wilson. Mr. Seligman does not drink alcohol. Agent Wilson does drink alcohol and testified that the bottle Charles Seligman handed him was, in fact, beer. Although Agent Wilson also testified that Mr. Seligman's first name was "Tom" and that Mr. Seligman had purchased a rum drink, nonetheless, Mr. Wilson was convincing that the bottle handed him by Mr. Seligman did, in fact, contain beer, an alcoholic beverage. Officer Posey convincingly described the first bottle he received from Mr. Seligman as containing beer, an alcoholic beverage, and upon all the circumstances, the undersigned infers that the second bottle given Officer Posey also contained beer. All the underaged operatives who testified on this Notice to Show Cause testified that they were forbidden to drink (consume) what they were sold and did not do so. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the other minors actually named in the Notice to Show Cause constitutes their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 3/ Therefore, Petitioner has established only that on June 16, 1990 Respondent's personnel sold one alcoholic beverage to the Petitioner's underage operative Wearner and three alcoholic beverages to the Petitioner's underage operative Seligman. III. Notice to Show Cause GA11900209; September 22, 1990 through September 29, 1990; service to, or consumption by Stanton, Coody, Willis, and, Torres On September 22, 1990, Amy Stanton and Janet Coody, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. On September 29, 1990, Betty Willis and Jose Torres, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 4/ IV. Notice to Show Cause GA11900254 October 19, 1990 through November 16, 1990; 9 counts possession by Harriett, Ortega, McKinney, Nelson, Smith, Winter, Joyner, Cooke, Sammon; "giving" by Blackwell and Strawser On October 19, 1990, Steven Harriett, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1990, Jamie Ortega, who was under the age of 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 20, 1990, Brian McKinney, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On November 15, 1990, Karen Nelson, Hollie Smith, Michael Winter, and Julia Joyner, all underage, were in actual possession of an alcoholic beverage inside the licensed premises. On November 16, 1990, Denise Cooke and Teresa Sammon, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 5/ No evidence was introduced to establish the allegations of Counts 4 and 6 of Notice to Show Cause GA11900254, alleging "giving."
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic and Beverages and Tobacco enter a Final Order dismissing Notices to Show Cause GA11900209 and GA11900254; finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890374, imposing a total of $1750 in civil fines therefor; and finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890496, imposing a total of $2000 in civil fines therefor. RECOMMENDED this 28th day of June, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 28th day of June, 1991.
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 in this case is whether the Respondent's alcoholic beverage license should be revoked, suspended, or otherwise disciplined for a violation of Section 562.11, Florida Statutes, a provision of the Florida Beverage Law, which prohibits the sale of alcoholic beverages to a minor. At the formal hearing the Petitioner called as witnesses: Thomas L. Stout, Bernard W. Cooper, Timothy J. Culley, and Craig Brady Cooper. Mr. Antonino Sciarrino testified on behalf of respondent. The Petitioner offered and had admitted into evidence two exhibits and the Respondent offered no exhibits into evidence. Both the Respondent and counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the hearing officer. To the extent that those proposed findings and conclusions of law are inconsistent with the findings and conclusions contained within this order they were considered by the hearing officer and rejected as being unsupported by the evidence or unnecessary to the resolution of this cause.
Findings Of Fact At all times material to this action the Respondent was the holder of beverage license number 21-478, Series 2COP. This license was issued for the licensed premises located at 499 Goodlette Road, Naples, Florida. The licensed premises is a convenience store that also sells various types of food and dry good items plus sandwiches and beer. The Goodlette Food Mart, Inc. is owned and managed by Antonino Sciarrino, the President of the Respondent corporation. The Goodlette Food Mart opened for business on January 1, 1982. Prior to this time Mr. Sciarrino operated a deli in New York City where he also sold beer. Sometime during October, 1982 (the specific date being unknown) , Craig Cooper, a minor, 16 years of age was stopped by a Naples police officer and found to be in the possession of a six-pack of beer. This beer had been purchased by Craig Cooper at the Goodlette Food Mart and he informed the police officer of this fact. Mr. Cooper was asked by the police officer if he would be willing to cooperate in a controlled buy at the Goodlette Food Mart. Mr. Cooper indicated that he would. Subsequent to the October stop Craig Cooper agreed to cooperate with the police in making a controlled purchase of alcoholic beverages at the Goodlette Food Mart and on November 6, 1982, Mr. Cooper was contacted by a Naples police officer and was given cash. He was asked to go to the Goodlette Food Mart and to use the cash he had been given to attempt to purchase alcoholic beverages. From the police station Craig Cooper drove to the Goodlette Food Mart and Officer Culley of the Naples Police Department followed him. While Craig Cooper went inside the Goodlette Food Mart Officer Culley observed from the parking lot, Craig Cooper entered the Goodlette Food Mart and went directly to the cooler area where soft drinks and alcoholic beverages are kept. He removed a six-pack of Heineken Beer. He then proceeded to the cash register and paid for the beer. The cashier on duty was Robert Peterson. He did not question Craig Cooper or ask him for any identification at the time that Mr. Cooper paid for the beer. Mr. Cooper then left the store and turned the beer over to Officer Culley. At the time of the purchase by Craig Cooper, the manager Antonino Sciarrino was not present in the store. Mr. Sciarrino, was in the store 10 to 12 hours a day, but was generally not present in the evenings. Robert Peterson had been hired as a part-time employee approximately two or three months prior to November 6, 1982. Mr. Sciarrino had no prior problems with Robert Peterson and was not aware of any instances where he had sold beer to minors. At the time Robert Peterson was hired, he was instructed to not sell to minors and to always ask for and check identification prior to selling alcoholic beverages. There was also a sign posted in the employees room where they clock in and clock out which warned them that they could be criminally prosecuted for failing to check identification and for selling alcoholic beverages to minors. The Goodlette Food Mart had a policy against selling to minors and all employees were instructed regarding this policy and were required to check identification prior to selling alcoholic beverages. There were signs posted on the cooler and the cash register informing customers that minors were prohibited from purchasing alcoholic beverages and that identification was required, There was also a sign next to the cash register which reminded the cashier to check the customers' I.D. when purchasing alcoholic beverages. This sign also gave the date and year which the birthdate on the identification had to predate in order for the person to purchase alcoholic beverages. The purpose of this sign was to enable employees to more efficiently and more accurately check identifications. Immediately following notification of the November 6, 1982, sale to Craig Cooper, Mr. Sciarrino terminated Robert Peterson's employment with the Goodlette Food Mart.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That thee Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed. DONE and ORDERED this 14th day of October, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1983. COPIES FURNISHED: Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Antonino Sciarrino, President Goodlette Food Mart, Inc. 499 Goodlette Road Naples, Florida Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether the Respondents' alcoholic beverage and tobacco license/permit number 74-00388 is subject to the assessment of a civil penalty, or should be suspended or revoked because of the sale of an alcoholic beverage to a person under the age of twenty-one years?
Findings Of Fact At all times relevant to this proceeding, the Respondents have been the holders of alcoholic beverage license/permit number 74-00388, series 2-COP, for the premises located at 4020 B Nova Road, Port Orange, Florida. At all times relevant to this proceeding, the Respondents were doing business as the Cheese and Specialty Corner (hereinafter referred to as the "Corner"). John T. Grothe is a full-time electrical engineer employed by General Electric. Mr. Grothe helped Oki Grothe, his wife, operate the business after working hours at General Electric and on his days off. Mrs. Grothe was primarily responsible for running the Corner. The Respondents had a policy of not selling alcoholic beverages to anyone under the legal drinking age. On September 4, 1987, Mr. Grothe was working at the Corner. Mr. Grothe was behind the counter near the front of the Corner. Detective Patrick Girvan entered the Corner on September 4, 1987. Detective Girvan was a Port Orange, Florida, police detective at the time but was not wearing his uniform. Shortly after Detective Girvan entered the Corner, Officer Heather Waskiewicz entered the Corner. Officer Waskiewicz was also a Port Orange police officer on September 4, 1987. Officer Waskiewicz was not wearing a uniform. Officer Waskiewicz, upon entering the Corner, went to the left of the Corner to a large wall cooler and began looking at the contents of the cooler. The area of the Corner where Mr. Grothe was located was not busy. Only Officer Waskiewicz, Detective Girvan and another Port Orange police officer who had entered the Corner were in the area where Mr. Grothe was working. There were other customers in another area of the Corner where Mrs. Grothe was working. Mr. Grothe asked Officer Waskiewicz if she needed any help. Officer Waskiewicz indicated that she did not. Officer Waskiewicz selected a sealed bottle labeled Florida Wine Cooler from the cooler and took it to the counter where Mr. Grothe was standing. Officer Waskiewicz paid Mr. Grothe for the Florida Wine Cooler and Mr. Grothe put it into a paper bag. On the label of the Florida Wine Cooler it was indicated that the bottle contained 6 percent alcohol. The first ingredient listed on the label of the bottle was orange wine. At no time did Mr. Grothe ask Officer Waskiewicz her age or ask her for proof of her age. Nor did Officer Waskiewicz make any representation to Mr. Grothe concerning her age. Officer Waskiewicz handed the paper bag with the sealed Florida Wine Cooler in it to Detective Girvan, who had witnessed the sale. Detective Girvan then notified Mr. Grothe that he had sold an alcoholic beverage to a person under the legal drinking age. Criminal charges relating to the sale were brought against Mr. Grothe. Officer Waskiewicz was born on January 11, 1968. On September 4, 1987, Officer Waskiewicz was nineteen years of age. Officer Waskiewicz was wearing black, high-heeled pumps and a black belt, a long-sleeve blouse and a skirt at the time of the sale of the wine cooler by Mr. Grothe. She described her dress as "casual" and as "appropriate for a work environment." Her hair was worn down on one side and in a ponytail on the other side. She wore some makeup. Mr. Grothe believed that Officer Waskiewicz at the time of the sale had the bearing, visage and general appearance of a woman over the age of 21 years. Officer Waskiewicz is sufficiently young enough in appearance, however, even at the age of 20 years, that it could not be concluded conclusively that she was 21 years of age or older. Officer Waskiewicz had never bean in the Corner prior to September 4, 1987, and had never purchased or attempted to purchase alcohol at the Corner prior to the purchase of the Florida Wine Cooler on September 4, 1987. The Corner was closed subsequent to September 4, 1987, and is no longer in operation. The Respondents have not been charged with any other violations relating to their beverage license. The Department has a policy of imposing a $1,000.00 administrative fine and a 20-day suspension of license on licensees for the first offense of selling alcoholic beverages to a minor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondents be found guilty of violating Section 562.11(1)(a), Florida Statutes. It is further RECOMMENDED that the Department suspend the Respondents' alcoholic beverage license for a period of twenty (20) days and impose a civil penalty of $500.00 on the Respondents. DONE and ENTERED this 15th day of November, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3080 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 7 and 11-14. The evidence failed to prove that Officer Waskiewicz purchased a "Seagram's Wine Cooler" (it was a Florida Wine Cooler) or that the label on the bottle indicated that the alcohol level was 4 percent (it was 6 percent). 3 11 and 16. 4 6 and 12. Summary of the Respondents' position. See finding of fact 15. See finding of fact 19. The Respondents' Proposed Findings of Fact The Respondents' proposed findings of fact have been accepted in paragraphs 1-5, 9, 11-12, 17 and 19. COPIES FURNISHED: Elizabeth Masters Deputy General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Sylvan A. Wells, Esquire Post Office Box 5307 Daytona Beach, Florida 32018-1307 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301-1927 Van B. Poole, Secretary Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301-1927
The Issue Whether Respondent committed the acts alleged in the Administrative Actions dated July 7, 2008, and September 5, 2008, and, if so, what disciplinary action, if any, should be taken against Respondent.
Findings Of Fact At all times material to this matter, Respondent was licensed under the Florida Beverage Law by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued License Number 26-07803, Series KLD, by Petitioner. A Series KLD license is one issued by Petitioner to distribute alcoholic beverages. Petitioner seeks to impose sanctions on Respondent for violations of Subsection 561.29(1)(a), within Subsection 561.29(1)(a), within Subsection 561.55(3)(a), Florida Statutes, on February 18, 2008. Petitioner also seeks to impose sanctions on Respondent for violations of Subsections 561.411(1)(a) and (b), Florida Statutes, for the period on December 1, 2006, through November 30, 2007. Christopher John Eiras (Eiras) is the managing director of Respondent distributing company. Eiras closed on the purchase of Respondent on August 31, 2007. Although he took over ownership of Respondent on that date, he had been involved with helping the company since its inception and had been directly involved in the creation of the business. Respondent, as a corporate entity and the holder of the license, is ultimately responsible for the violations alleged in the Administrative Action, if proven. Moreover, Eiras kept the records for the audit period at issue in his house and, therefore, had control over the records requested by Petitioner. Petitioner performed an audit of Respondent for the time period of December 1, 2006, through November 30, 2007. In the course of the audit, and pursuant to Subsection 561.29(1)(j), Florida Statutes, Petitioner requested that Respondent produce certain records. Pursuant to Florida Administrative Code Rule 61A-4.023, "distributors shipping or delivering alcoholic beverages for consumption outside the confines of the State of Florida must supply the Division with a copy of the bill of lading, must show the type of beverages, amount by size container and gallonage of each type shipped by common carrier or licensees' vehicles and a certificate from a representative of the appropriate agency of the jurisdiction into which the alcoholic beverages were shipped stating the shipment has been reported properly to that agency." Respondent supplied general documentation from FedEx and UPS regarding shipments, but Petitioner believes this documentation falls short of what is required by Florida Administrative Code Rule 61A-4.023. The records requested by Petitioner are significant because they form the basis for giving a distributor a deduction from the payment of excise tax, the tax required to be remitted to the State of Florida, for out-of-state sales. The distributor must pay the excise tax on the sale of alcoholic beverages within Florida. Petitioner had worked closely with Respondent and made numerous attempts to bring Respondent into compliance through its records production. Because Eiras was the new owner of Respondent, and because the former auditor (with 37 years of experience) passed away during the audit of Respondent, the new auditor, Margaret Perez, gave Respondent what she termed "an enormous gift" by settling the audit for liabilities of $829.39 and $45.22, with the understanding that Respondent would still produce the requested records. Petitioner issued two letters related to the audit. The first, dated August 15, 2008, found a liability of $45.22, and required payment within ten days of receipt of the letter. No mention was made in the letter of any documents required to be produced by Respondent. Respondent timely paid the $45.22 liability. The second, dated August 18, 2008, found a liability of $828.39 and required payment within 10 days of receipt of the letter. No mention was made in the letter of any documents required to be produced by Respondent. Respondent timely paid the $828.39 liability. Petitioner testified that acceptance of the payments from Respondent did not excuse the production of documents, yet no official communication was issued by Petitioner requiring such production following the August letters and payment of the liabilities set forth in those communications by Respondent. Additionally, pursuant to Subsections 561.411(1)(a) and (b), Florida Statutes, Respondent is required to own "an inventory of alcoholic beverages which is equal to at least 10 percent of the distributor's annual case sales to licensed vendors within this state or to licensed vendors within the malt beverage distributor's exclusive sales territory; or [a]n inventory for which the cost of acquisition is not less than $100,000." The Distributor Qualifications audit showed that Respondent had zero value for its inventory. Further, although Respondent claimed inventory for two supplier products, Urban Brands and Happy Vodka Corporation, both of which are owned by Eiras, Petitioner has not received proof of payment for these products from Respondent that satisfies its interpretation of the requirements of law. Respondent supplied company-generated spreadsheets which, it argues, are sufficient to comply with Petitioner's requirements. These spreadsheets specifically list the inventory as of August 31, 2007, the date of the purchase of Respondent by Eiras from Gray Solomon, the previous owner. The inventory is listed by item number, item description, number of items on hand, average cost per item, percent of total asset, sales price, retail value, percent of total retail, and owned inventory. This detailed spreadsheet shows a total owned inventory of $139,964.24, an asset value of $480,731.15 (most of which is under bailment for other suppliers), and a total retail value of $624,140.59 for all product, whether owned or under bailment. Petitioner expected to receive the source documents or back-up for the inventory and sales. Respondent provided canceled checks and invoices at some point that it believed satisfied this request. Clearly, Respondent was not timely in its response to Petitioner's document requests. Respondent supplied documents such as invoices and bills of lading showing deliveries to Respondent's warehouse in Jacksonville and shipments to locations both within Florida and out-of-state. A question remains as to whether the back-up material fully responds to Respondent's requests for production of documents under Subsection 561.29(1)(j), Florida Statutes, for the audit period. Petitioner has not accepted the documentation provided by Respondent as proof of Respondent's compliance with the audit document request. No complete explanations were offered by Petitioner as to why it would not accept Respondent's documentation as at least some evidence of Respondent's intent to comply with Petitioner's document request. Petitioner offered testimony that it believed shipments were being made by entities other than Respondent. The documentation supplied by Respondent, however, shows numerous shipments and receipts of alcoholic beverage products in the name of "Liquor Group Florida" or "Liquor Group Florida, LLC."
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order as follows: Assessing a $500.00 fine against Respondent for violating Subsection 561.29(1)(j), Florida Statutes; Ordering Respondent to produce all reasonably requested records for any and all future audits, including, but not limited to, bills of lading as required by Florida Administrative Code Rule 61A-4.023, for sales made outside of Florida; Dismissing the Administrative Action against Respondent alleging violations of Subsection 561.411(1)(a) or (b), Florida Statutes; and Dismissing the Administrative Action against Respondent alleging violations of Subsection 561.55(3)(a), Florida Statutes. DONE AND ENTERED this 4th day of June, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 4th day of June, 2009. COPIES FURNISHED: Sarah Christine Naf, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202 Joshua B. Moye, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Christopher John Eiras 830-13 A1A North, No. 155 Ponte Vedra Beach, Florida 32082 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerry Geier, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent committed the violations alleged in the Administrative Action dated August 11, 2000, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with enforcing Florida's Beverage Law, and, specifically, with regulating the sale of alcoholic beverages. Sections 561.02 and 561.11(1), Florida Statutes. At all times material to this proceeding, Coluccis Attic, Inc., held alcoholic beverage license number 60-11724, Series 4 COP SRX, a special restaurant license which authorized the sale of alcoholic beverages on the premises of the restaurant of the same name located at 600 North Congress Avenue, Delray Beach, Florida. On July 18, 2000, an inspector employed by the Department conducted a routine investigation of the restaurant. As part of the investigation, the investigator was provided a copy of the restaurant's sales report for the period from May 17, 2000, through August 6, 2000. The investigator calculated the percentages of gross revenue from the sale of food and of alcohol sales with respect to total gross sales, and the calculations showed that food sales were 31.5 percent of total gross sales.
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 Coluccis Attic, Inc., violated Section 561.20(2)(a)4., Florida Statutes (2000); Imposing an administrative fine in the amount of $1,000.00 against Coluccis Attic, Inc.; and Revoking the special restaurant license of Coluccis Attic, Inc., without prejudice to apply for any other type of alcoholic beverage license but with prejudice to apply for a special restaurant license for a period of five years. DONE AND ENTERED this 21st day of August, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 21st day of August, 2001.
