The Issue This case concerns the application of William E. Morey, who does business as Morey's Restaurant, to acquire a new series 2-COP beverage license from the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, in which the Respondent has denied the license application on the grounds that the granting of such a license would be contrary to provisions of Section 561.42, Florida Statutes, and Rule 7A-4.18, Florida Administrative Code. These provisions of the Florida Statutes and Florida Administrative Code deal with the prohibition of a financial interest directly or indirectly between distributors of alcoholic beverages and vendors of alcoholic beverages.
Findings Of Fact The Petitioner, Willian E. Morey, applied to the State of Florida, Departent of Business Regulation, Division of Alcoholic Beverages and Tobacco, for the issuance of series 2-COP alcoholic beverage license. By letter dated, January 23, 1979, the Director of the Division of Alcoholic Beverages and Tobacco denied the application based upon the belief that such issuance wood violate the provisions of Section 561.42, Florida Statutes, and Rule 7A-4.18, Florida Administrative Code. The pertinent provision of Section 561.42, Florida Statutes, states: 561.42 Tied house evil; financial aid and assistance to vendor by manufacturer or distributor prohibited; procedure for en- forcement; exception.-- (1) No licensed manufacturer or distributor of any of the beverages herein referred to shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the Beverage Law, nor shall such licensed manu- facturer or distributor assist any vendor by any gifts or loans of money or property of any description or by the giving of rebates of any kind whatsoever. * * * In keeping with the general principle announced in Section 561.42, Florida Statutes, the Respondent has enacted Rule 7A-4.18, Florida Administrative Code, which states: 7A-4.18 Rental between vendor and distri- butor prohibited. It shall be considered a violation of Section 561.42, Florida Sta- tutes, for any distributor to rent any property to a licensed vendor or from a licensed vendor if said property is used, in whole or part as part of the licensed premises of said vendor or if said property is used in any manner in connection with said vendor's place of business. The facts in this case reveal that William E. Morey leases the premises, for which he has applied for a license, from Anthony Distributors, Inc., of 1710 West Kennedy Boulevard, Tampa, Florida. Anthony Distributors, Inc., is the holder of a J-DBW license to distribute alcoholic beverages in the State of Florida. This license is held with the permission of the State of Florida, Division of Alcoholic Beverages and Tobacco. Consequently, the issuance of a series 2-COP license to William E. Morey at a time when he is leasing the licensed premises from a distributor of alcoholic beverages, namely, Anthony Distributors, Inc., would be in violation of Section 561.42, Florida Statutes, and Role 7A-4.18, Florida Administrative Code.
Recommendation It is recommended that the Petitioner, William E. Morey's application for a series 2-COP beverage license be DENIED. DONE AND ENTERED this 10th day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Willian E. Morey d/b/a Morey's Restaurant 4101 North 66th Street St. Petersburg, Florida 33709 Mary Jo M. Gallay, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether petitioners' application for approval of a change in corporate officers of an existing corporate licensee should be granted, or denied on the ground that a disqualified person--a convicted felon--is interested either directly or indirectly in the business.
Findings Of Fact On or about February 18, 1980, Richard Zabel and Anita Grizaffi ("applicants") negotiated for the purchase and sale of the stock of Cowboy's, Inc., holders of beverage license No. 16-6859 SRX. On that date, Richard Zabel and Anita Grizaffi, his sister, entered into a contract for the sale and purchase of all of the outstanding stock of the corporation called Cowboy's, Inc. The purchase price of said stock was to be $300,000. The closing for the purchase of the stock ownership in Cowboy's, Inc., was scheduled to be held in Fort Lauderdale on or about April 23, 1980. Originally, the applicants intended to purchase the stock by borrowing $300,000 entirely from Bern Builders, Inc. Bern Builders, Inc., is solely owned and operated by Anita Grizaffi and Bernard Grizaffi. Prior to the closing and in anticipation of borrowing the purchase price entirely from Bern Builders, Inc., applicants filed with DABT their Notice of Stock Ownership and Certificate of Incumbency showing that they were the new officers, directors, and stockholders of the licensee corporation. In addition, applicants filed with DABT their personal data questionnaires and disclosed in the appropriate block that they intended to borrow the $300,000 from Bern Builders, Inc. Just prior to the scheduled date of the closing, the sellers informed the purchasers that for reasons totally unrelated to any matters pertinent to this proceeding, they would not close the deal. Applicants and their corporate attorney from Chicago, Irv Ribstein, forced the sale of the stock and the closing took place on April 23, 1950. In order to close the deal and since it was impossible for the applicants to receive the $300,000 from Bern Builders, Inc., as originally hoped, it was necessary for them to generate sufficient funds from other sources to pay the sellers. Those funds were obtained and then repaid in full in the following manner: Anita Grizaffi borrowed $150,000 from the Commercial Bank of Chicago. This $150,000 obligation was paid in full from the proceeds of the ownership interest of Anita Grizaffi in a yacht. The sale of this yacht took place pursuant to a Brokerage Purchase and Sales Agreement made April 14, 1980. Anita Grizaffi borrowed $100,000 from the Chicago bank collateralized by her ownership of Certificates of Deposit. This $100,000 was repaid by Anita Grizaffi. A personal loan from Bern Builders, Inc., was obtained in the amount of $50,000. This loan was repaid by the applicants on July 1, 1981. Subsequent to the closing and the original filing of the Certificate of Incumbency and the personal data questionnaires showing the financial arrangements, DABT notified the applicants that while it was not taking final action at that time, it was DABT's intention to deny the change of corporate officers because it believed that there was a person either directly or indirectly involved in the beverage license who was statutorily disqualified. Prior to DABT sending out its official notification of its denial of the change of corporate officers, the applicants filed with DABT the supplemental financial information described in paragraph 8. It showed how the purchase of the stock actually was consummated. DABT, on August 8, 1980, after receiving this supplemental financial information, sent its final agency action letter denying the applicants' request for a change of corporate officers. The basis for DABT's denial of the application was that it believed that the husband of Anita Grizaffi, Bernard Grizaffi, was a convicted felon and that he was directly or indirectly involved in the beverage license. The parties agree that a loan of $50,000 to the applicants from a corporation which had as one of its officers, directors, and stockholders, a convicted felon, would have given Bernard Grizaffi a direct interest in the beverage license in violation of the applicable provisions of the Beverage Law when that transaction occurred. After the applicants had filed the additional supplemental information and DABT had denied the change of corporate officers, a deposition was taken in Tallahassee of Barry Schoenfeld, the Chief of Licensing for DABT. At said deposition, each source of financial investment utilized by applicants to purchase all of the stock of Cowboy's, Inc., was disclosed and thoroughly considered. Every dollar of the total investment was accounted for and through cancelled checks, every dollar lent to applicants by Bern Builders, Inc., was shown to have been paid back in full solely from' the proceeds of the operation of Cowboy's, Inc., and that no outstanding financial obligation existed to Bern Builders, Inc., or Bernard Grizaffi, individually. At the deposition of Mr. Schoenfeld, affidavits from bankers in Chicago were submitted showing conclusively that a total of $600,000 would have and could have been loaned to Anita Grizaffi, individually, secured and collateralized by her independent financial interests" at any time during the year of 1980. Bernard Grizaffi executed an affidavit stating that it was never his intention to have any interest whatsoever in the beverage license or the stock of Cowboy's, Inc.; that he had not, was not, and would not exercise any dominion and control whatsoever in the operation of Cowboy's, Inc.; that he was not owed any monies whatsoever by Cowboy's, Inc.; and that he would not be entitled to any benefit whatsoever from the operation of Cowboy's, Inc. On May 16, 1980, the sworn statements of four principal managers and employees of Cowboy's, Inc., who were employees prior to, during, and subsequent to the actual closing of the sale and purchase of the stock of Cowboy's, Inc., were taken. Each manager or employee categorically stated that Bernard Grizaffi had no interest whatsoever in Cowboy's, Inc. ; that he had absolutely no power to control Cowboy's, Inc.; that he had never exercised any dominion or control in Cowboy's, Inc.; that they would only take orders from the applicants; and if Bernard Grizaffi ever tried to give them directions or orders, they would first check with applicants prior to doing anything. The only times Bernard Grizaffi had ever been observed in the licensed premises were on obvious social occasions and only on a couple of occasions. On August 22, 1981, the applicants wrote to DABT and indicated that they had and could further demonstrate their financial independence from the otherwise disqualified person. In reply to that letter, DABT clearly demonstrated its policy of permitting changes of corporate officers under like circumstances. Those documents state in applicable part: My client is in a position to show the Division [DABT] that she can and could have, at the time of the actual purchase of the stock occurred finance(d) the entire pur- chase solely from her signature loan. The fact that she chose not to do so at the time of the closing has previously been explained to the Division [DABT] as solely the result of the last minute exigencies necessitated by the sellers at the time of the closing of the deal. My client is prepared to provide to the Division [DABT] affidavits from various bank officers in and around the Chicago area who will attest that each of them would have lent Mrs. Grizaffi, on her signature only, and collateralized by her interest solely, suf- ficient funds to finance the purchase of the stock and the corporation holding the license. At present we possess letters from at least three banks who have indicated that they would have and would today lend to Mrs. Grizaffi in the manner herein contemplated, an amount in excess of $600,000. In addition7 I am prepared to provide to the Division [DABT], an affidavit of the husband that he never intended nor does he have today, nor has he had at any time dur- ing these proceedings, any interest, directly or indirectly, in either the financial acqui- sition of the stock or any right to any financial remuneration from the proceeds of the business. Nor does he have any right nor desire to, nor has he at any time dur- ing these proceedings, run the business. The only connection between himself and the Cowboy's, Inc. is his marital status. (Memorandum from Dennis E. LaRosa, Staff Attorney, to Mary Colson, Assistant Chief of Licensing.) Re: Cowboy's, Inc. In reference to Mr. Curtis's letter to you of August 22, 1980, my opinion is that if Mrs. Grizaffi can demonstrate financial independence of her husband in the manner and method therein described, then the Divi- sion may consider issuing the license. Also, an affidavit from Mr. Grizaffi concerning his interests and intentions would be appro- priate. Please advise if further opinion is required. (From note dated September 2, 1980, from Mary Colson to Barry Schoenfeld, Chief of Licensing.) I agree with Dennis--It would not be the first time we have accepted such documen- tation--your comments, please. Whereupon, applicants, owners of 100 percent of the stock of Cowboy's, Inc., requested a formal administrative hearing challenging the authority of DABT to deny their application for change of corporate officers. Applicants, each individually, meet all of the requirements and qualifications to hold a beverage license.
Recommendation Based on the foregoing, it is RECOMMENDED: That petitioners' application to change the corporate officers of Cowboy's, Inc., be granted. DONE AND RECOMMENDED this 15th day of March, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1982. COPIES FURNISHED: Charles L. Curtis, Esquire 1177 Southeast Third Avenue Fort Lauderdale, Florida 33316 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard A. Boyd Division of Beverage Post Office Box 8276 Lauderhill, Florida 33310 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether the Application for Alcoholic Beverage License dated April 14, 1988, filed by Ocie C. Allen, Jr., should be approved by the Respondent?
Findings Of Fact Ocie C. Allen, Jr., d/b/a OCA, filed an Application for Alcoholic Beverage License dated April 14, 1988 (hereinafter referred to as the "Application"), with the Division. In the Application, Mr. Allen indicated under "Type of Application" that the Application type was "Other - ownership change because of contract." Mr. Allen listed himself as the "Applicant" and signed the Application as the "Applicant." The "Current License Number" listed in the Application to be transferred to Mr. Allen is 15-1924, current series 3 PS. The holder of the license was Thomas Tripp. At the end of the Application there is an "Affidavit of Seller(s)" to be executed by the licensee from whom the license is to be transferred. This affidavit has not been completed in the Application. The purchase price for the business was listed as $86,250.00. In a letter dated April 22, 1988, the Director of the Division requested the following additional information from Mr. Allen: Affidavit of seller must be signed by Thomas Tripp and notarized. Documentation as to the source of funds invested must accompany this application. The transfer fee on quota license is assessed on the average annual value of gross sales of alcoholic beverages for the three (3) years immediately proceeding transfer and is levied at the rate of four (4) mills, and in no event exceeds $5,000. The parties may elect to pay the $5,000 transfer fee or submit documents (usually sales tax records), which will establish gross sales in order to compute the transfer fee. By letter dated May 2, 1988, Mr. Allen responded as follows to the Division's request for information: Mr. Tripp has signed the Independent Contractor Agreement which is the affidavit of seller. Source of funds comes from Mr. Tripp as per the Independent Contractor Agreement. The sales tax receipts will be submitted upon approval pending payment of transfer fee. The Division notified Mr. Allen that it intended to deny the Application in a letter dated May 9, 1988. Mr. Allen was provided a Notice of Disapproval of the Application in a letter dated June 29, 1988. The following reasons were given for denial of the Application: Application to transfer the license does not bear the signature of the current licensee and, therefore does not evidence a bonafide [sic] sale of the business pursuant to [Section] 561.32, Florida Statutes. Application incomplete as applicant has failed to provide complete verification of his financial investment. Also, applicant has failed to provide records establishing the annual value of gross sales of alcoholic beverages for the three years immediately preceding the date of the request for transfer. The Division is, therefore, unable to fully investigate the application pursuant to Florida law. By letter dated July 19, 1988, Mr. Allen requested a formal administrative hearing to contest the Division's denial of the Application. Mr. Allen sent a letter to the Division dated October 27, 1988, with an Affidavit requesting permission to pay a transfer fee of $5,000.00 "in lieu of the 4-mill assessment."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case dismissing the case with prejudice. DONE and ENTERED this 17th day of January, 1989, 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 17th day of January, 1989. COPIES FURNISHED: Ocie C. Allen, Jr. Post Office Box 10616 Tallahassee, Florida 32302 Lt. B. A. Watts, Supervisor Division of Alcoholic Beverages and Tobacco Department of Business Regulation 345 S. Magnolia Drive, Suite C-12 Tallahassee., Florida 32301 Harry Hooper Deputy General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927
The Issue The matters presented for consideration concern the two-count Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, against the Respondent, Bland Corporation, which trades as Grace's Place. Count One (1) of that Complaint alleges that beginning May 15, 1977, through November 16, 1979, the Respondent failed to disclose the names and addresses of persons interested directly or indirectly with its business for which a beverage license had been issued and that in doing so, the Respondent acted contrary to Section 561.17, Florida Statutes. More specifically, the Complaint alleges that one Grace Sherman had an undisclosed interest in the licensed premises. Count Two (2) of the Administrative Complaint alleges that the Respondent, on or about May 15, 1977, failed to comply with the order of the Director of the Division of Alcoholic Beverages and Tobacco dated April 15, 1977, in that Grace Sherman failed to divest her interest in the Respondent's beverage license and this was contrary to Section 561.11, Florida Statutes, and Section 561.29, Florida Statutes.
Findings Of Fact This action is here presented by way of a Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, against the Respondent, Bland Corporation, which trades as Grace's Place, 2502 North Albany Avenue, Tampa, Florida. The terms and details of the allegations may be found in the issues statement of this Recommended Order. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is a State agency charged with regulating those persons within the State of Florida who hold beverage licenses issued by the Petitioner. This responsibility includes the requirement that the Petitioner take administrative action against those licensees believed to have violated the terms and conditions of their 1icensurezzz. In pursuit of this responsibility, the allegations as set forth herein were brought against the Respondent, Bland Corporation, a Florida corporation, Beverage License Number 39-537, Series 4- COP. The Bland Corporation held the subject beverage license in the beverage license year, October 1, 1976, through September 30, 1977, using the trade name, Ace Lounge. In the course of that year, the trade name was changed to Grace's Place and the Respondent has continued to do business under the name Grace's Place up to and including the time of the administrative hearing in this cause. On April 15, 1977, the Corporation was solely owned by Darlene K. Cowans and was operating under the business name, Ace Lounge. At that time a stipulation and settlement was consummated between Ms. Cowans with the accompanying signature of the present counsel for the Respondent, Mr. Levine, and signed by the petitioner in the person of its Director. This stipulation and implementing order settled the pending administrative charges against the licensee. The first charge related to an allegation that the Respondent had a person, namely, Grace Bland Sherman, who was directly or indirectly involved in the Respondent's business and that Mrs. Sherman had an undisclosed interest in that business, contrary to Section 561.17, Florida Statutes, and Rule 7A-2.14, Florida Administrative Code. There was a second Count in that complaint document which alleged that the Respondent had relinquished management and control of the licensed premises to the same Mrs. Sherman, in contravention of Rule 7A-3.17, Florida Administrative Code. The stipulation in its operative parts stated that the Respondent would pay a fifteen hundred dollar ($1,500.00) civil penalty within fifteen (15) days of the date of the stipulation or, upon failure to do so, an automatic suspension of fifteen (15) days would take effect. There was additional language in the stipulation for penalty which stated: "Licensee further agrees to the divesture[sic] of interest in this license of Grace Bland Sherman within thirty (30) days of receipt of this stipulation approved by the Director." (A copy of this Stipulation and the Statement of Charges may be found as the Petitioner's Composite Exhibit No. 4 admitted into evidence.) In examining the latter provision within the Stipulation, the details of what the parties intended in effectuating the purposes of the divestiture of interest which Grace Bland Sherman might have in the license was not spoken to by the Petitioner in the present hearing and the complaint allegations do not fill this void. (Grace Sherman is an individual who has been required to serve a probationary term in connection with a court disposition in the United States District Court, Middle District of Florida, which probation was concluded in February, 1980. The particular violation for which this probationary term was given to Grace Sherman was not shown in the course of the hearing.) Grace Bland Sherman gave testimony and that testimony establishes that Mrs. Sherman was acting as a bookkeeper for the Respondent on April 15, 1977, and continued to serve in that capacity at the time of the hearing. Her duties included and now include daily bookkeeping, daily preparation of receipts, coordination of the payment of payroll taxes and sales taxes, and the preparation of bank deposits for the business. Following the April 15, 1977, stipulation, Darlene K. Cowans, who was the sister of Grace Sherman, sold her 100 percent controlling interest in the Bland Corporation to Marlon Lewis, the son of Grace Sherman. Marlon Lewis paid Darlene K. Cowans five thousand dollars ($5,000.00) cash with a balance of seventy-eight thousand dollars ($78,000.00) due and owing to be paid from profits of the licensed premises in exchange for the control of the assets of the Corporation. A copy of the stock assignment may be found as Petitioner's Exhibit No. 5. The stock assignment took place on June 14, 1977, and the Petitioner allowed Marlon A. Lewis to be substituted as the President, Secretary, Treasurer and owner of the Bland Corporation for purposes of the Corporation holding the subject beverage license. A copy of the application for change of name, officers and ownership, together with Certificate of Incumbency and Declaration of Stock Ownership and license investigation papers may be found as the Petitioner's Composite Exhibit No. 3 admitted into evidence. The substitution of officers and ownership took place in 1977 and at the time of the hearing Marlon Lewis remained as the President, Director and owner of the Corporation, with Marjorie Lewis serving as Vice President and Treasurer, and Vedus McCray serving as the Secretary. The business is managed by Sallie M. Hubert. (Marlon Lewis has other employment and is not involved with the matters of routine management of the licensed premises.) The principal operating bank account of the Corporation is conducted through the Southeast Bank of Tampa, in Tampa, Florida. Those persons listed above as officers and manager of the Corporation are empowered to write checks on the corporate account of the Respondent, together with Grace Sherman, the bookkeeper. A copy of the authorization for signatures may be found as Petitioner's Exhibit No. 6 admitted into evidence. Petitioner's Exhibit No. 36 admitted into evidence is a copy of other signature cards related to the operating account and the right to withdraw funds from corporate savings accounts. Grace Sherman receives a salary from the Respondent and the Petitioner's Composite Exhibit No. 7 contains a number of salary checks issued on the above referenced Southeast Bank of Tampa account, for the period November 27, 1977, through September 26, 1979. Some of these checks here issued by Grace Sherman and some were issued by other individuals within the corporate organization. There are several other checks in this series of exhibits. One of those checks is a ten dollar ($10.00) check written to the Secretary of the State of Florida for the purpose of paying a filing fee for the 1978 Annual Report for Cowans Realty. The remaining two checks in this series relate to checks issued by Grace Sherman for the payment to the Tampa Bay Buccaneers, one of those checks indicating that it is for "Bucks tickets". Each of the two remaining checks is in the amount of three hundred twenty dollars ($320.00). No further explanation of the reason for expenditures related to the several checks was made during the course of the hearing. The Bland Corporation pays for life insurance and medical insurance for the benefit of Marlon A. Lewis on policies issued by Bankers Life Company. These moneys for payment are deducted from the operating account of the Petitioner in the Southeast Bank of Tampa. A copy of the payment drafts and other matters related to the policies may be found as Petitioner's Composite Exhibit No. 8. Grace Sherman is the beneficiary of the life insurance policy. The Respondent pays for a life insurance, disability and double indemnity policy for the benefit of Grace Sherman. This policy is with the Wabash Life Insurance Company and deductions are made from the aforementioned operating account to effectuate payment for the premiums. The beneficiary for the life insurance aspect of this policy is Marlon Lewis. A copy of the policy and premium payment drafts may be found as the Petitioner's Composite Exhibit No. 9 admitted into evidence. In addition, the Corporation through the same operating bank account, pays for a medical policy for the benefit of Grace B. Sherman, including major medical of up to twenty-five thousand dollars ($25,000.00). A copy of the policy and bank drafts for payment may be found as Petitioner's Composite Exhibit No. 10 admitted into evidence. This policy is as issued by American States Insurance Company. In the years 1977, 1978 and 1979, the Respondent employed the Bookkeepers Business Service Company to keep its books in the way of profit and loss statements. The arrangement for these services was made by Marlon Lewis and the routine coordination for these services was through Grace Sherman, the bookkeeper of the Corporation. The services continued until such time as the Bookkeepers Business Service Company unilaterally discontinued the service due to a management decision unrelated to any disagreement with the Respondent. The profit and loss statements for the month of October, 1978, entered by the bookkeeping service and found in Petitioner's Composite Exhibit No. 11, do not reflect a two hundred dollar ($200.00) cash withdrawal from the Corporation's operating account in the Southeast Bank of Tampa. This check is written by Grace Sherman and indicates that the purposes were "quarters for weekend". On November 28, 1977, Marlon Lewis, representing Bland Corporation on that date referred to as Bland, Inc., and Grace Sherman were granted a bank loan by Southeast Bank of Tampa for purposes of consolidating the personal debts of Marlon Lewis and Grace Sherman. This loan was issued to the Respondent, Bland Corporation, and seven thousand dollars ($7,000.00) of Marlon Lewis's personal debts and fourteen thousand eight hundred dollars ($14,800.00) of personal debts of Grace Sherman were retired. The amount of loan to the borrower, Bland Corporation, referred to as Bland, Inc., was twenty-one thousand eight hundred dollars ($21,800.00). The arrangement for the new loan obligated the Respondent Corporation to allow draws from its operating business account at the Southeast Bank of Tampa, in the amount of four hundred sixty-three dollars and nineteen cents ($463.19) for a period of sixty (60) months and in fact those drawals have been made. The details of this financing and examples of debit charges to the operating account of the Respondent Corporation and the lending institution may he found in the Petitioner's Composite Exhibit No. 17 admitted into evidence. On May 12, 1978, Bland Corporation in the person of Marlon A. Lewis with Grace Sherman as guarantors borrowed twenty-four thousand four hundred ninety-four dollars and sixteen cents ($24,494.16) for the purpose of purchasing a 1978 Mercedes Benz automobile. By this arrangement, the bank required security through the assignment of certain savings accounts which were the property of Grace Sherman. The automobile had been selected by Grace Sherman and a 1976 Cadillac automobile, which was her property, had been used in trade. At present, the automobile is primarily used by Grace Sherman. It is also used by the Respondent Corporation's manager and by the owner, Marlon Lewis. Petitioner's Exhibits Nos. 30 and 31 admitted into evidence are papers dealing with the purchase of the automobile from Precision Motor Cars of Tampa, Florida, and the Petitioner's Composite Exhibit No. 18 admitted into evidence is a copy of the promissory note and assignment of savings deposits and other matters related to the loan. The insurance on the Mercedes Benz automobile was initially written by Eastern Underwriters listing Grace Sherman as the insured as opposed to Bland Corporation, the true owner of the automobile; however, this problem occurred due to certain confusion in the office of Eastern Underwriters and was not due to any improper motives on the part of the members of Bland Corporation or Grace Sherman. The exhibits dealing with this insurance coverage may be found as Petitioner's Exhibits 32 through 35 admitted into evidence and Respondent's Exhibits 2 through 4 admitted into evidence. On August 14, 1979, Sallie M. Hubert, the manager for the Respondent/Licensee, paid a twenty-five dollar ($25.00) membership fee in a private club, the Copper Door, and this membership was issued in the name of Grace Sherman. The check in payment may be found as Petitioner's Exhibit No. 25 admitted into evidence, and the membership card may be found as Petitioner's Exhibit No. 24 admitted into evidence. Grace Sherman had prior to the time of the payment of the membership fees in the Copper Door paid for an individual membership in a private club known as the Cypress Club, and the amount of that payment was fifty dollars ($50.00). The check in payment may be found as Petitioner's Exhibit No. 26 admitted into evidence. Both of the private club memberships mentioned above were drawn on the corporate account of the Bland Corporation referred to before and the purpose of those memberships was for the entertainment of Grace Sherman and Marlon Lewis. Grace Sherman, at the insistence of Marlon Lewis, made arrangements to have Mrs. Sherman's mother's house fumigated and the payment on the installment contract which financed the fumigation service was made on the corporate account of the Bland Corporation and was subsequently reimbursed by Marlon Lewis. Exhibits dealing with this arrangement for service may be found as Petitioner's Composite Exhibits 27 and 28 admitted into evidence. In the application form which is petitioner's Exhibit No. 3, in responding to the question related to the disclosure of the names of any of the persons directly or indirectly interested in his business, Marlon Lewis indicated "N/A". Therefore, Grace Sherman was not shown to have any direct or indirect interest in the license which was held naming Marlon Lewis as the primary officer and the owner of the Bland Corporation. Likewise, Grace Sherman was never required by the present ownership of the Respondent Corporation or by any requirement of the agency proven herein, to register her fingerprints with the District Office of the Division of Alcoholic Beverages and Tobacco in connection with her association with the current principal in the license, Marlon Lewis.
Recommendation Upon the consideration of the facts in this matter and in view of the conclusions of law reached, it is RECOMMENDED that the charges against the licensee be DISMISSED. 4/ DONE AND ENTERED this 18th day of August, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1980.
The Issue By Notice to Show Cause filed December 19, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the alcoholic beverage license number 60-0883 issued to James R. Rogers, trading as Ray's Tavern. As grounds therefor it is alleged that Rogers, in order to secure a license to sell alcoholic beverages, made false written statements to the agents of Respondent in violation of 537.06 and 561.29 F.S. One witness was called by Petitioner and four exhibits were admitted into evidence.
Findings Of Fact On December 21, 1977, notice of the hearing scheduled to commence on January 12, 1978 at 1457 N. Military Trail, West Palm Beach, Florida was served on Respondent by a beverage agent of Petitioner. (Exhibit 1) In answer to question 13 on the application for Transfer of Alcoholic Beverage License, which asked "Has a license covering the place described in this application or any other place in which any of' the above named persons were at the time interested ever been revoked by the Director?" Respondent answered "No". (Exhibit 2). By Order of the Director of the Division of Beverages dated September 30, 1955 (Exhibit 3) the alcoholic beverage license issued to James R. Rogers, Curley's Tavern, aka Ray's Tavern was revoked for maintaining gambling paraphernalia and permitting gambling on the licensed premises.
Findings Of Fact Respondent holds alcoholic beverage license No. 39-651, series 4-COP, which applies to its business known as Library Lounge, located at 10924 Nebraska Avenue, Tampa, Florida. Respondent was so licensed at all times relevant to this proceeding. Beverage Officer Lloyd entered Respondent's licensed premises on August 7, 1980, to conduct an undercover investigation. He was approached by two dancers in bikini costumes who introduced themselves as Billy Joe (or B.J.) and Brenda. Billy Joe twice asked him to buy her drinks, which he did (Counts 1 and 2). He also purchased a drink for Brenda at her request (no charge). Lloyd saw Billy Joe and Brenda perform their dances on a raised stage. Lloyd returned to the licensed premises on August 8, 1980, and was again approached by the dancer Billy Joe, who asked him to buy her a drink. Lloyd purchased the drink as requested (Count 4). Lloyd returned to the licensed premises on October 14, 1980, where he was approached by dancers in bikini costumes who introduced themselves as Deanna and Margie. They asked him to buy drinks, and Lloyd purchased two drinks for each of these dancers (Counts 8, 13, 14, 15). He also observed them performing on the stage. Beverage Officer Jones entered the licensed premises in an undercover capacity on August 7, 1980. He was approached by the dancer, Brenda, who asked him to purchase her a drink. Jones purchased the drink as requested (Count 3). He observed Brenda dance on the stage while attired in a bikini costume. Jones entered the licensed premises on October 14, 1980, in an undercover capacity and was approached by the dancer, Margie. Jones purchased three drinks for Margie at her request (Counts 10 and 12). She stated that the dancers were paid one dollar for each drink purchased on their behalf by a customer. Beverage Officer Kiker entered the licensed premises on August 7, 1980, in an undercover capacity. He was approached by the dancer, Brenda, who twice asked him to buy drinks. Kiker purchased the drinks as requested (no charge). He observed Brenda dance on stage. She was attired in a two piece G-string costume. Kiker entered the licensed premises on October 14, 1980, in an undercover capacity. The dancers, Deanna and Margie, asked him to buy them drinks. He purchased the drinks as requested (Counts 6 and 11). He also purchased a drink for Deanna in response to her request made while she was dancing on stage for somebody to buy her a drink (Count 7). Kiker identified Deanna as Deanna Hill and Margie as Margaret San Felize at their arrest on October 24, 1980. On October 14, 1980 Kiker had paid Tammy Yates, the bartender for Deanna's drink and observed that she noted the transaction on a pad by the cash register. He further observed that the pad had four names on it. At the October 24 arrest, Tammy advised Kiker that she kept a tally of the drinks purchased for the dancers.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of charges contained in Counts 1 through 4, 6 through 8, and 10 through 15 of the Administrative Complaint and suspending Respondent's alcoholic beverage license for a period of 30 days. DONE and ENTERED this 28th day of September, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1982.
The Issue Whether petitioner's application for transfer of an alcoholic beverage license should be granted, or denied on the ground that there is a pending disciplinary action against the license holder.
Findings Of Fact Timeliness of DABT's Denial of Application for Transfer On May 26, 1981, petitioner filed with DABT's Miami office an application for transfer of alcoholic beverage license No. 23-276, Series 4-COP. (Testimony of Harris, Caram; Ex. 1.) Upon discovering that the fingerprints of Richard J. Mandell, chief corporate officer of petitioner, were not on file and did not accompany the application, DABT notified Mr. Mandell, no later than June 24, 1981, that his fingerprints would be required. 2/ (Testimony of Harris, Caram.) In response, Mr. Mandell furnished the requested fingerprints to DABT on June 24, 1981. At that time, DABT treated the license application as complete. (Testimony of Harris, Caram.) By letter dated September 22, 1981, DABT notified petitioner that its application was disapproved because of a pending administrative case against the license. (Ex. 2A.) II. Denial of Petitioner's Application When petitioner filed its application for transfer of the alcoholic beverage license in question, administrative proceedings to revoke or suspend the license had been instituted and were pending against the licensee, Astral Liquors, Inc., d/b/a "Foxxy Laidy," a bar and lounge. (Prehearing Stipulation.) These disciplinary proceedings were instituted because of the conviction of Eugene Willner--Astral Liquors, Inc.`s sole stockholder--of a federal felony unrelated to operation of the Foxxy Laidy bar and lounge. (Testimony of Willner.) By written contract dated April 10, 1981, petitioner agreed to purchase from Astral Liquors, Inc., the Foxxy Laidy, located at 6507 Southwest 40th Street, Miami, Florida, for $175,000. Closing was contingent upon DABT approving transfer of the alcoholic license to petitioner. (Ex. 3.) DABT disapproved petitioner's application to transfer the license solely on the ground that there were pending proceedings against the license holder. DABT does not question whether the sale of Foxxy Laidy to petitioner is a bone fide, arms-length transaction or the qualifications of petitioner to hold an alcoholic beverage license. (Testimony of Harris; Ex. 2A, Ex. 8, Ex. 9.) DABT presented no evidence in support of denying petitioner's application other than there were pending administrative proceedings against the licensee. It did not explain or offer any reasons why, in this case, it should exercise its discretion by denying petitioner's application. To the extent its decision rests on non-rule policy considerations, it did not explicate them or subject them to scrutiny at hearing.
Recommendation Based on the foregoing, it is RECOMMENDED: That the application for transfer of alcoholic beverage license No. 23-276, Series 4-COP, be granted. DONE AND RECOMMENDED this 9th day of June, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1982.
The Issue Did the licensee repeatedly sell alcoholic beverages to persons under the age of 21?
Findings Of Fact At all times material hereto, Respondent, Jayprakash Patel, d/b/a United Discount Beverage, held alcoholic beverage license number 11-00952, Series 2-APS, for a premises known as United Discount Beverage, each side of U.S. Highway 301, Hawthorne, Florida. Joseph Donnelly, a person under the age of 21, purchased alcoholic beverages on April 27, 1990, to wit: three six packs of beer and two bottles of MD 20/20 wine, without identification at United Discount Beverage from Kirtie B. Patel, an employee of the business. Joseph P. Donnelly had purchased alcoholic beverages without identification on previous occasions at United Discount Beverage from Kirtie B. Patel. Madonna Bristow observed Joseph B. Donnelly purchase alcoholic beverages from United Discount Beverages on April 27, 1990 and on several other occasions previous to that date. Mr. Glen Molander observed Joseph P. Donnelly and Madonna Bristow carrying packages from United Discount Beverage on April 27, 1990. A vehicle driven by Joseph P. Donnelly was involved in an automobile accident on April 27, 1990, and was towed to a secured impoundment on that date. His mother, Kathlene L. Donnelly, recovered six cans of beer and two bottles of MD 20/20 wine from the car. Mrs. Donnelly took the beer and wine to her residence where she concealed it. On May 2, 1990, Inv. Jernigan the six cans of beer and two bottles of MD 20/20 wine obtained from the Donnelly's residence. Inv. Jernigan marked these items as evidence and stored in the vault at the Gainesville Division of Alcoholic Beverages and Tobacco District Office. Investigator Jernigan identified at hearing the six cans of beer and two bottles of MD 20/20 wine he had recovered from the Donnelly's residence. Joseph P. Donnelly identified this evidence at hearing as a portion of the alcoholic beverages which he had purchased at United Discount Beverage from Kirtie B. Patel on April 27, 1990. Joseph Donnelly and Madonna Bristow observed many other individuals who they knew to be under twenty-one years old purchase alcoholic beverages from United Discount Beverage without identification. Kirtie B. Patel plead guilty to a charge of selling alcoholic beverages to a person under age 21 in violation of Section 562.11(1)(a), Florida Statutes, Petitioner's exhibit number 1, to wit: underage operative M. Goldtrap on December 14, 1989. Kirtie B. Patel plead nolo contendere to a charge of selling alcoholic beverages to a person under age 21 in violation of Section 562.11(1)(a), Florida Statutes, Petitioner's exhibit number 2, to wit: Joseph P. Donnelly on April 27, 1990. Licensee, Jayprakash Patel, has previously admitted in an administrative proceeding to have been in violation of Section 562.11(1)(a) within Section 561.29(1), Florida Statutes, to wit: three sales of alcoholic beverages by his employees to persons under the age of 21 during the period May 11, 1989 through December 14, 1989. Jayprakash Patel has become a Responsible Vendor since April 27, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the alcoholic beverage license held by Respondent, Jayprakash Patel, d/b/a United Discount Beverage, license number 11-00952, Series 2-APS, be suspended for six (6) months and a $1,000.00 civil penalty be imposed. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. COPIES FURNISHED: Eric S. Haug Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Don Reid Post Office Box 133 Gainesville, FL 32602 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Aki-San held an alcoholic beverage license which expired October 1, 1977. Only on January 10, 1978, did Aki-San make application for "delinquent renewal" of its license. In the unlicensed interim, one of respondent's truckdrivers continued to deliver Kirin beer to Aki-San. At all pertinent times, respondent was licensed as a distributor of alcoholic beverages. Respondent employs numerous truckdrivers to distribute alcoholic beverages to some 2,000 licensees under the beverage law. Each driver has a route book containing the license number of each of the customers for which he is responsible. The truck drivers have standing instructions to insure, before delivering alcoholic beverages, that the licensees they serve have renewed their licenses for the year. Posted on a bulletin board on respondent's premises, in October of 1977, was a notice reminding the drivers to ascertain whether their customers' licenses had been renewed.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the notice to show cause issued in this case. DONE and ENTERED this 17th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Clifford Distributing Company 990 S.W. 21st Terrace Ft. Lauderdale, Florida Mary Jo M. Gallay Staff Attorney 725 South Bronough Street Tallahassee, Florida 32304
