The Issue The issue presented in whether an agent or employee of Respondent sold alcoholic beverages to a person under the age of 21, in violation of Section 562.11(1)(a), Florida Statutes, as alleged in the Administration Action issued September 10, 1997, and if so, what penalty is appropriate.
Findings Of Fact At all times relevant and material to this proceeding, Respondent held alcoholic beverage license no. 74-01498, series 2APS, for an establishment known as My Super Store ("the licensed premises"), located at 701 South Martin Luther King Boulevard, Daytona Beach, Volusia County, Florida. Daytona Beach Police Department opened an investigation of the licensed premises after it received numerous complaints of illegal activity at the licensed premises. Paris Anthony is a black female born on June 13, 1977, and was 19 years old on May 5 through May 21, 1997. On May 5, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The bottle bore the manufacturer's trade mark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the cashier. The cashier accepted payment for the beer, but did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her. When Ms. Anthony asked for a receipt for the beer, the cashier, in a raised voice, commented to Ms. Anthony, "Well, you're not old enough, are you?" or words to that effect. Ms. Anthony answered that she was not, but was nonetheless permitted to leave the premises with the bottle of beer. During the conversation between the cashier and Ms. Anthony, Respondent was seated an arm's length away from the cashier. Respondent was not talking to anyone at the time. Although Respondent looked up at Ms. Anthony and the cashier during the exchange reported in paragraph 5, above, he took no action in response to the assertion that Ms. Anthony was not of legal age to purchase alcoholic beverages. On May 7, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The beer bore the manufacturer's trademark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the same cashier who was working behind the counter on May 5, 1997. The cashier did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her. Ms. Anthony departed the licensed premises with the bottle of beer. The Respondent was observed on the premises by Ms. Anthony at the time of the purchase. On May 21, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The beer bore the manufacturer's trademark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the same cashier who was working behind the counter on May 5 and May 7, 1997. The cashier did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her. Ms. Anthony departed the licensed premises with the bottle beer. The Respondent was observed on the premises by Ms. Anthony at the time of the purchase. At hearing, nine months after the incident, Ms. Anthony appeared to be a young woman of an age that a prudent person would check to determine whether she was 21 years old. Respondent testified he had no employees at the time of the violations, but allowed "volunteers" to help him on the licensed premises, including Benette Lisa Brown. According to the Respondent, he was always on site, and in charge. The "volunteers," according to Respondent, did not work the cash register; however, Respondent's testimony was not consistent with Ms. Anthony's and that of a former "volunteer." Respondent's testimony was not credible. The person at the sales counter was working under the supervision of Respondent who was present on the premises each occasion Ms. Anthony purchased beer. At the time of the violations, Respondent did not have signs posted on the licensed premises informing customers that the vendor had a policy against serving alcoholic beverages to underage persons and informing customers that the purchase of alcoholic beverages by an underage person or the illegal use of or trafficking in controlled substances will result in ejection from the licensed premises and prosecution. The training of employees or agents was inadequate and their supervision poor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent's alcoholic beverage licensee No. 74-01498, series 2APS, be suspended for a period of 30 days, and it is further recommended that Respondent be ordered to pay a $1,000 civil penalty to the Petitioner. DONE AND ENTERED this 25th day of March, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 25th day of March, 1998. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joan Lowe, Esquire 520 North Ridgewood Avenue Daytona Beach, Florida 32114-2188 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue The issue presented is whether Respondent failed to maintain separate records of purchases and gross sales of all alcoholic and non-alcoholic beverages and food in violation of Section 561.20, Florida Statutes, and Florida Administrative Code Rule 61A-3.0141, and if so, what penalty, if any, is appropriate. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect of the date of this Recommended Order).
Findings Of Fact Respondent holds license number 69-02639, series 4COP SRX. An SRX license authorizes Respondent to sell alcoholic beverages on the premises of Jon's Bar & Grill, located at 2485 N. Highway 17-92, Lake Monroe, Florida ("the licensed premises"). Persons issued "SRX" licenses must meet certain statutory requirements to ensure that they are operating bona fide restaurants. Among other requirements, Respondent must maintain separate records of all purchases and gross sales of all alcoholic and non-alcoholic beverages and food. Respondent's license application specifically informed Respondent that he must meet the specific requirements of this type of license. On March 17, 1997, Petitioner's Special Agent Richard Hurlburt met with Respondent for the purpose of conducting an SRX inspection to determine Respondent's compliance with SRX license requirements. An SRX inspection includes an audit of the licensee's records to determine the percentage of gross revenue derived from the sale of food and non-alcoholic beverages. Respondent was unable to produce the records he is statutorily required to maintain. Agent Hurlburt issued a notice to produce records relating to the operation of the restaurant. On August 12, 1997, Petitioner issued a notice of administrative complaint against Respondent for failure to maintain separate records of all purchases and gross sales for non-alcoholic and alcoholic beverages and food in violation of Section 561.20. Respondent has not produced the records he is statutorily required to maintain.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a $1,000 civil penalty against Respondent and revoking alcoholic beverage license no. 69-02639, series 4COP SRX, without prejudice to obtain any other type license, but with prejudice to obtain another SRX special license for 5 years from date of the Final Order. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon county, Tallahassee, Florida. DANIEL MANRY 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 6th day of August, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 George Lewis, Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe street Tallahassee, Florida 32399 Jon Gustafson, pro se 956 Lake Ashby Road New Smyrna, Florida 32069
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.
Findings Of Fact At all times material hereto, the Respondent, Larry Lyles, was the holder of Florida Beverage License No. 26-2105, license series 2ABS. The licensed premises to which this license was issued is Larry and Gail's Pool Hall, 306 West Eighth Street, Jacksonville, Florida. On August 11, 1982, Mr. Keith Bernard Hamilton, a beverage officer for the Division of Alcoholic Beverages and Tobacco, went to the licensed premises pursuant to an assigned drug investigation. Officer Hamilton, after entering the licensed premises, purchased a beer from Gail Thomas a/k/a Patricia Ann Thomas. Gail Thomas was tending bar. After purchasing the beer, Officer Hamilton sat in a chair approximately 20 feet from the bar, and a few minutes later, approached a young man named Larry and asked about buying some smokes". "Smokes" is a term commonly used to refer to marijuana. Larry asked him how much he wanted and whether he had the money with him. Officer Hamilton stated he wanted two (2) bags and that he did have the money. Officer Hamilton then gave Larry $10 and Larry walked over to a young man named Hamp. Larry handed Hamp the $10 in currency and Hamp handed Larry two small manila envelopes. This exchange took place approximately five feet from the bar in the presence of Gail Thomas. Gail Thomas was one of the owners of the bar. The conversation between Officer Hamilton and Larry was in a normal tone of voice and could have been easily overheard by Gail Thomas and others in the bar. After receiving the two () manila envelopes from Hamp, Larry handed them to Officer Hamilton. Later, lab analysis revealed that these two envelopes contained cannabis, a controlled substance under Chapter 893, Florida Statutes. On August 20, 1982, Officer Hamilton returned to the licensed premises. After entering, he purchased a beer from Gail Thomas and began playing pool. When Gail Thomas began cleaning a table near the pool table, he asked her if anyone had "smokes". She said no but that someone next door might. She then indicated she was going next door to get change. She left, and upon returning, she informed Officer Hamilton that a man next door had some "smokes". She then asked if he wanted her to get some for him. He said yes and gave her $20 in currency. She left and came back with two manila envelopes and two $5.00 bills as change. Later, lab analysis revealed that the two manila envelopes contained cannabis, a controlled substance under Chapter 893, Florida Statutes. On August 21, 1982, Officer Hamilton again visited the licensed premises, and upon entering, purchased a grape soda from Gail Thomas. He saw the young man named Hamp shooting pool and walked over to him and asked him about purchasing some smokes. Hamp said he had some real good stuff and that if he didn't like it, he would buy it back. Officer Hamilton then purchased one manila envelope from Hemp. The exchange took place in the presence of Gail Thomas, who was nearby cleaning tables. After the exchange, Hemp suggested to Officer Hamilton that he try some of the material in the envelope there in the bar. Officer Hamilton declined and Hamp told him "It's okay, Gail doesn't care". Later, lab analysis revealed that the envelope purchased from Hemp contained cannabis, a controlled substance under Chapter 893, Florida Statutes. At the time of each of the purchases on August 11, 20, and 21, 1982, Gail Thomas was the only bartender or person actually working in the licensed premises. Officer Hamilton never observed another employee or person supervising or maintaining in any way the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent's alcoholic beverage license be revoked. DONE and ENTERED this 30th day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Larry Lyles 306 West Eighth Street Jacksonville, Florida R. R. Caplano, Captain Division of Beverage Post Office Box 5787 Jacksonville, Florida 32202 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Executive Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Based on the stipulated record described above, I make the following relevant findings of fact: The Petitioner currently holds alcoholic beverage license number 11-74 SRX, series 4-COP. The currently licensed premises include all of the rooms within Petitioner's clubhouse. On or about September 14, 1984, the Petitioner filed an application in which it requested that its licensed premises be extended to include all of the golf course which is adjacent to the clubhouse. The Petitioner's golf course consists of approximately 262 acres. The Petitioner is the owner of and has exclusive possession and control over all of the premises it seeks to have included in its license. The area Petitioner seeks to have included in its license includes other buildings in addition to the clubhouse building. The Petitioner does not hold a golf club license. The Petitioner does not by its application propose to have more than three separate rooms or enclosures in which permanent bars or counters will be located. A licensee is required to designate the licensed premises in a sketch included in or attached to the application for license so that the Division of Alcoholic Beverages and Tobacco can determine the area over which they have regulatory authority. The Division of Alcoholic Beverages and Tobacco has, on some occasions, granted applications for series 4-COP special restaurant licenses which included in the sketch of the licensed premises an uncovered patio area immediately adjacent to the covered portion of the restaurant building, which patio areas were used by the restaurant as an area for service of food and beverages. The Division of Alcoholic Beverages has not presented any reason for denying the Petitioner's application other than the opinion that the existing statutory provisions do not authorize the extension sought by the Petitioner. The Petitioner's alcoholic beverage license was issued pursuant to a special act of the Legislature. Chapter 70-574, Laws of Florida. Following receipt of notice that the Division of Alcoholic Beverages and Tobacco proposed to deny its application, the Petitioner filed a timely request for formal proceedings.
Recommendation For all of the foregoing reasons it is recommended that the Division of Alcoholic Beverages and Tobacco issue a Final Order denying the Petitioner's application to extend the area of its licensed premises. DONE and ORDERED this 25 day of June, 1985, at Tallahassee, Florida. Hearings Hearings MICHAEL M. PARRISH Hearing Officer Division of Administrative The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative this 25th day of June, 1985 COPIES FURNISHED: Sandra Stockwell, Esquire Department of Business Regulation 725 S. Bronough St. Tallahassee, Florida 32301 William Andrews, Esquire P.O. Drawer C Gainesville, Florida 32602 Howard M. Rasmussen Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronough St. Tallahassee, Florida 32301
The Issue The issues in these cases are whether Respondent, Club Manhattan Bar and Grill, LLC, d/b/a Club Manhattan Bar and Grill (Respondent), committed the acts alleged in the administrative complaints dated September 13, 2010, and December 1, 2010, and, if so, what disciplinary action, if any, should be taken against Respondent.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating persons holding alcoholic beverage licenses. § 561.02, Fla. Stat. Respondent is licensed under the Florida beverage law by the Department. Respondent holds a 4COP/SRX special restaurant license issued by the Department with Alcoholic Beverage License No. 68-04347. Ms. Stokes is the licensee of record for Respondent. Consequently, Respondent is subject to the Department's regulatory jurisdiction. Respondent's series 4COP/SRX is a special restaurant license that permits it to sell beer, wine, and liquor for consumption on the licensed premises. Additionally, the licensee must satisfy seating and record-keeping requirements and must comply with 51 percent of its gross sales being food and non- alcoholic beverages. See § 561.20(2)(a)4., Fla. Stat. Respondent's restaurant is located in Sarasota County, Florida, and, pursuant to the 4COP/SRX license, must have seating and capability to serve 150 customers at any one time. On August 5, 2010, Special Agent Flynn conducted an inspection of Respondent's business premises. He conducted the inspection based on complaints made to the Department that Respondent was operating as an after-hours bar, rather than a restaurant. At this initial inspection, which occurred at 2:30 p.m. on August 5, 2010, Special Agent Flynn found the restaurant did not have any customers or menus. Further, he noticed that the premises had seating for only 92 people and a large dance floor. Further, he observed that the walls had signs advertising drink specials and late-night parties. Special Agent Flynn met Ms. Stokes, Respondent's manager and holder of the license, and informed her that the beverage license required that Respondent be able to serve 150 customers at one time. Also, Special Agent Flynn requested the required business records concerning the purchase of alcoholic beverage invoices from the distributors for a 60-day proceeding period. Ms. Stokes did not have the requested records on the premises. On August 19, 2010, Special Agent Flynn sent Ms. Stokes a written request, requesting alcoholic purchase invoices for a 60-day period before August 19, 2010. The request allowed Ms. Stokes 14 days to compile the records and to provide the records to the Department. The record here showed by clear and convincing evidence that Respondent did not produce records for the audit period. On September 8, 2010, at approximately 3:00 p.m., Special Agent Flynn returned to Respondent's premises. Again, he found that Respondent did not have the required seating number and ability to serve 150 customers at one time. Special Agent Flynn offered credible testimony that, during the September 8, 2010, inspection, he found Respondent had only 106 available seats. Further, consistent with his inspection on August 5, 2010, Special Agent Flynn observed facts showing that Respondent was a late-night bar, as opposed to a restaurant. The evidence showed that on September 8, 2010, Special Agent Flynn observed that Respondent did not have any customers, menus, and very little food in its small kitchen. Special Agent Flynn, however, did observe that Respondent continued to have its large dance floor, disc jockey booth, advertised drink specials, and posters advertising late-night parties. Clearly, Respondent was being operated as a bar, rather than a restaurant as required by its license. At the September 8, 2010, inspection, Special Agent Flynn again requested Respondent's business records that he had previously requested for the 60-day time period before August 19, 2010. Ms. Stokes provided a few invoices for purchases of food and non-alcoholic beverages. These invoices were dated after the August 19, 2010, date that Special Agent Flynn had requested and did not cover the requested 60 days prior to the August 19, 2010, request. These records included food and beverage purchases by Respondent from retailers, but did not contain any records concerning the points of sale at the restaurant. Ms. Nadeau, an auditor for the Department, offered credible testimony concerning the Department's request for business records from Respondent for the audit period of April 1, 2010, through July 31, 2010. On August 27, 2010, Ms. Nadeau set up an audit request for the period of April 1, 2010, through July 31, 2010, based on information provided by Special Agent Flynn. The Department provided Ms. Stokes with an audit engagement letter that requested business records. Ms. Nadeau testified that on September 10, 2010, she was contacted by Ms. Stokes. Ms. Stokes informed Ms. Nadeau that Ms. Stokes had become the owner of the restaurant in June 2010 and that she did not have the required records. Ms. Nadeau informed Ms. Stokes to provide all the records requested in the audit engagement letter that Ms. Stokes had and to try to obtain the prior records from the previous managing member of Respondent. On September 22, 2010, Ms. Stokes mailed to the Department records she claimed met the audit period. The records consisted of guest checks for July and August 2010, which only showed food purchases and no alcoholic beverage purchases. Further, Ms. Nadeau found that the records were not reliable, because the records contained numerous personal items not related to the restaurant, such as baby wipes, cotton swabs, and boxer shorts. Consequently, the record clearly and convincingly shows that Respondent failed to provide the required business records for the audit period of April 1, 2010, through July 31, 2010. Next, based on Respondent's failure to provide any reliable records, the Department was unable to conduct an audit of the business. Records provided by Respondent indicated that the only sales that occurred on the premises were for food. However, the testimony showed that Respondent's business included the sale of alcohol and marketed the sale of alcoholic beverages for late-night parties. Mr. Torres, the senior auditor for the Department, credibly testified that he conducted an independent review of Ms. Nadeau's initial audit findings. Mr. Torres, who has been employed with the Department for 27 years, reviewed the records provided by Respondent. He credibly testified that Respondent's guest checks were very questionable because they showed all food sales, but no alcohol, which was not consistent with Special Agent Flynn's observations. The evidence further showed that Ms. Stokes became the managing member of Respondent in June 2010. Ms. Stokes provided the Department with a change of corporate officers and named herself as registered agent, rather than apply for a new license. This distinction would later become important because, as explained by Ms. Nadeau, in the Department's eyes, there is a continuation of ownership. Under a continuation of ownership, Ms. Stokes was required to have business records for the time period before she became the managing member of Respondent. Ms. Stokes credibly testified that she did not have any records before June 20, 2010; thus, Respondent was unable to provide records for the audit period. Ms. Stokes candidly admitted that her restaurant had been struggling financially, which is why she had worked to catering special events to draw foot traffic.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking Respondent's alcoholic beverage license and finding that Respondent violated: 1. Section 561.20(2)(a)4., within section 561.29(1)(a), on September 8, 2010, by failing to provide the required service area, seating, and equipment to serve 150 persons full-course meals at tables at one time as required by its license; 2. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), the audit period of April 1, 2010, through July 31, 2010, by not providing the requested business records; and 3. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), on September 8, 2010, by not providing the requested business records. It is further RECOMMENDED that the final order find that the Department did not prove by clear and convincing evidence that Respondent violated section 561.20(2)(a)4., within section 561.29(1)(a). DONE AND ENTERED this 23rd day of September, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2011.
