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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. JAMES A. SINGLETON, D/B/A HARVEY`S BAR B QUE, 83-002669 (1983)
Division of Administrative Hearings, Florida Number: 83-002669 Latest Update: Dec. 02, 1983

Findings Of Fact At all times pertinent to this hearing, Respondent, James A. Singleton, doing business as Harvey's Bar B Que, possessed 2-COP Beverage License No. 60- 2295 at his place of business at 717 North Tamarind Avenue, West Palm Beach, Florida. A 2-COP beverage license permits the sale of only beer and wine for on-premises consumption. No hard liquor is permitted to be sold, served or stored on the premises covered by the license. On December 17, 1982, armed with a search warrant properly issued based on probable cause provided by confidential informants, a West Palm Beach Police Department patrol headed by Lt. (then Sgt.) Eugene G. Savage entered Respondent's premises at 5:15 p.m. In a separate room to the rear of the building they found 2.2 pounds of a leafy vegetable matter packaged, some in 40 small manila envelopes (nickel bags) and some clear plastic bags. This vegetable substance was subsequently analyzed at the Palm Beach County Crime Laboratory and determined to be marijuana. At the same time, the officers also found 92 sealed half-pint bottles of hard liquor consisting of rum, vodka, gin and brandy. When Respondent was arrested at the time of the search, he had over $400 on his person. None of this money had serial numbers which matched those of money used in an undercover purchase of marijuana several days previously. Respondent explained the large sum of money as being the proceeds of his biweekly paycheck from his regular job on the railroad which he had received on December 15, 1982. Since there was no evidence to show that the undercover purchase of marijuana, which formed a part of the basis for the probable cause to issue the search warrant, was made from Respondent, there is no reason to doubt his explanation. Respondent contended he did not know anything about the marijuana. He has a full-time job with the railroad, a job he has held for 30 years, and had turned the running of his restaurant, which he had purchased for his retirement years, over to his son. His son, who has a record of prior arrests and incarceration for drug abuse, had assured him he would not do anything wrong. Since the search, the son has gotten into some undisclosed additional trouble and has run away. As for the liquor, Respondent contends that he purchased it for the personal consumption of his wife and himself. He bought it in large amounts to get it cheap. However, the half-pint is the favored size of the "Saturday Night" drinker, and, because of the large volume and the diverse nature of the stock, it is clear it was purchased for resale. Respondent is 60 years old and hopes to work for the railroad a few more years before he retires to run his restaurant. In fact, he has to work, he says, to pay off the fines incident to this situation.

Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's alcoholic beverage license No. 60-2295 be revoked. RECOMMENDED this 2nd day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 2nd day of December, 1983. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. James A. Singleton c/o Harvey's Bar B Que 717 North Tamarind Avenue West Palm Beach, Florida 33401 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Florida Laws (4) 561.29562.02562.12893.13
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. JOHN TIMMONS, JR., D/B/A HAROLD`S GROCERY, 84-004142 (1984)
Division of Administrative Hearings, Florida Number: 84-004142 Latest Update: Feb. 26, 1986

The Issue Whether the Respondent's beverage license should be revoked or suspended?

Findings Of Fact The Petitioner is the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. (Stipulated Fact). The Respondent is John Timmons, Jr., d/b/a Harold's Grocery. (Stipulated Fact). The Respondent, at all times relevant to this proceeding, operated a grocery store where beer and wine was sold under beverage license number 23-1197, Series 2-APS. (Stipulated Fact). The Respondent's licensed premises is located at 17347 Homestead Avenue, Miami, Dade County, Florida. (Stipulated Fact). On September 21, 1962, the Respondent applied for a transfer of the subject beverage license to its current location. Included with the transfer application was a "Sketch of Licensed Premises." In pertinent part, the licensed premises was identified as follows: Based upon the Sketch of the Licensed Premises submitted by the Respondent to the Petitioner, the licensed premises consisted of only a portion of the building located in the northern part of the building. The southern portion of the building consisted of a pool hall which was not identified as a part of the licensed premises. The Respondent owned the entire building. The pool hall is identified above by the dotted lines. The dotted lines were not a part of the Sketch of the Licensed Premises. The Respondent agreed as an incidence of filing the transfer application that any alterations or additions to the licensed premises could be inspected in the same manner as the portion of the licensed premises identified- on the Sketch of the Licensed Premises. The Respondent subsequently made substantial alterations to the building. The portion of the building formerly used for the pool hall has been incorporated, at least in part, into the portion of the building used by the Respondent in his business. The building and its uses during the period of time at issue in this proceeding consisted of the following: The portion of the building to the south of the dotted line is the area where the pool "all was located. That area is now used as a storeroom, the Respondent's living quarters and as a part of the store. The area of the building identified as a part of the store and the storeroom are part of the licensed premises. The area of the building identified as the Respondent's living quarters is not a part of the licensed premises. This area is used exclusively by the Respondent as his personal residence. Although there is access through a door from the living quarters into the store, the living quarters were not readily accessible by anyone except the Respondent and his personal guests. Employees of the Respondent and patrons did not go into the Respondent's living quarters. No business was conducted in the living quarters. On or before February 10, 1983, the Metro-Dade Police Department (hereinafter referred to as "MDPD") began an undercover narcotics investigation of the Respondent. On February 10, 1983, MDPD Sergeant Ed Howett searched a confidential informant, gave the informant $10.00 and watched him enter the licensed premises. `When the informant left the licensed premises, the informant was in possession of marijuana and did not have the $10.00 given to him or her. The informant had purchased the marijuana from someone in the Respondent's building. Based upon the sworn affidavits of two MDPD officers as to the reliability of the confidential informant and the events of February 10, 1983, a search warrant for the Respondent's building was issued on February 11, 1983, by the Honorable Judge Alan Kornblum. On February 15, 1983, MDPD Detective Ricky Smith entered the licensed premises. (Stipulated Fact). Detective Smith was not in uniform. Detective Smith approached Mary Williams, an employee of the Respondent, who was behind the counter on the licensed premises. Detective Smith purchased $2.00 worth of marijuana (2 marijuana cigarettes) from Mary Williams. (Stipulated Fact). Shortly after Detective Smith's purchase of marijuana, MDPD officers entered the licensed premises to execute the search warrant issued on February 11, 1983. (Stipulated Fact). The search warrant applied to the entire building. At the time of the search Mary Williams, Henry Timmons and the Respondent were present on the licensed premises. (Stipulated Fact). Henry Timmons was behind the counter on the licensed premises. (Stipulated Fact). Henry Timmons is the Respondent's brother and was an employee of the Respondent. Located at the cash register closest to the front door was Mary Williams. (Stipulated Fact). The Respondent was located on a patio with Cary Lou Harris. The patio was outside the Respondent's living quarters and was accessible from the living quarters. The Respondent and his brother have similar facial hair. People have confused the Respondent and his brother. Detective Smith and MDPD Detective Preston Lucas, however, were able to distinguish the Respondent from his brother. Detective Smith grew up in the area where the Respondent's store is located and was familiar enough with the Respondent to recognize him. During the execution of the search warrant, approximately 100 marijuana cigarettes and several separate bags of marijuana were found in plain view on the counter on the licensed premises. (Stipulated Fact). Marijuana was also found in Henry Timmons' back pocket. (Stipulated Fact). The Respondent was surrounded to the area of the licensed premises where the police officers had entered. After discovering the marijuana on the counter, the Respondent was asked by the police if that was all of the marijuana. The Respondent replied "yeah, that should be all of it." (Stipulated Fact). Henry Timmons accompanied police officers to the storeroom at the back of the licensed premises. Although Henry Timmons worked in the storeroom, he lied when he indicated that he was unable to find the light switch. Therefore, the Respondent went to the storeroom and turned the light on. Additional bags of marijuana were found in the storeroom (Stipulated Fact). "Then these additional bags were found the Respondent stated that "well, now you really got it all." (Stipulated Fact). Based upon the Respondent's statements to police during the execution of the search warrant, it is clear that the Respondent knew that marijuana was located on the licensed premises. On three separate occasions (March 2, 4 and 28, 1983) MDPD officers entered the licensed premises in an attempt to purchase marijuana from an employee. (Stipulated Fact). On each of the occasions, the employee referred the officers to Larry Wilcox, an individual who was standing outside the licensed premises. (Stipulated Fact). On each of the occasions, the officer purchased marijuana from Larry Wilcox, who retrieved it from a brown paper bag which was stored behind an ice machine in front of the licensed premises. (Stipulated Fact). On March 2, 1983, Detective Smith entered the licensed premises and asked Mary Williams, who was still employed by the Respondent, if he could buy marijuana. Mary Williams pointed to Larry Wilcox, who was standing outside the licensed premises. The Respondent did not witness this event. Detective Smith left the licensed premises and approached Larry Wilcox. Wilcox, who was never employed by the Respondent, sold marijuana to Detective Smith. The marijuana was obtained from a bag retrieved by Larry Wilcox from behind the tee machine which "`as located outside of the licensed premises. No evidence was presented as to who owned the ice machine. On March 4, 1983, Detective Smith and Detective Lucas returned to the licensed premises. They drove up to the curb of the street in front of the licensed premises. The evidence does not show which employee (as stipulated to by the parties) referred Detective Smith to Wilcox on this occasion. Detective Smith approached Larry `Wilcox who was standing on the sidewalk in front of the licensed premises. Detective Smith again purchased marijuana from Larry Wilcox. The marijuana was retrieved from behind the ice machine. The Respondent and Henry Timmons were present on the sidewalk in front of the licensed premises during the March 4, 1983 purchase. The Respondent was close enough to witness the transaction. On March 28, 1983, Detective Smith returned to the licensed premises. He entered the licensed premises and approached the Respondent and Larry Wilcox, who were standing inside the licensed premises. Mary Williams was behind the counter. Detective Smith announced to no one in particular that he wished to buy some marijuana. Again, the evidence does not prove which employee referred the officer to Larry Wilcox. The evidence does prove that the Respondent pointed to Larry Wilcox in response to Detective Smith's question. Larry Wilcox and Detective Smith then left the licensed premises. Detective Smith again purchased marijuana from Larry Wilcox which was obtained from behind the ice machine. On March 29, 1983, upon sworn affidavit, another search warrant was obtained from the Honorable Judge Alan Kornblum for the Respondent's building (Stipulated Fact). The search warrant was executed on the same day. It applied to the entire building. During the execution of the search warrant, Larry Wilcox was arrested on the licensed premises. Upon searching Larry Wilcox, marijuana and quaaludes were discovered. (Stipulated Fact). Marijuana and quaaludes were also found in a trash can located outside the front door of the licensed premises. (Stipulated Fact). No evidence was presented as to who owned the trash can. Two cigar boxes, a metal can, a plastic container and three strainers, all of which contained marijuana residue, were discovered in the living quarters. The Respondent was not present during the March ?9, 1983 search of the licensed premises or his living quarters. On April 28, 1984, MDPD Sergeant Louis Battle and Investigator Lou Terminello entered the licensed premises to conduct a license inspection (Stipulated Fact). The Respondent was located behind the counter on the licensed premises when Sergeant Battle and Investigator Terminello entered. A burnt marijuana cigarette was found in plain view on the counter. (Stipulated Fact). During questioning, the Respondent stated that he smoked marijuana in his living quarters and that he no longer sold marijuana. Marijuana residue was found in the living quarters. During the April 28, 1984, search, a loaded, stolen firearm was found underneath the counter on the licensed premises. It was not proved whether the Respondent was aware of the fact that the firearm was stolen. Administrative charges were brought against the Respondent based upon alleged violations of the controlled substance statute within the beverage statute. Specifically, the Respondent was charged with possession of marijuana on the premises, conspiracy to sell marijuana, possession of marijuana by his employees on the premises, sale and conspiracy to sell marijuana by one of his employees on the premises and public nuisance. The Respondent usually worked on the licensed premises until 4:00 p.m. After 4:00 p.m. the Respondent normally retired to his living quarters. All of the events involved in this proceeding occurred after 4:00 p.m. Although there was testimony to the contrary, it is concluded that the Respondent did not take steps to prevent the possession or sale and/or delivery of marijuana on the licensed premises. The Respondent made statements which indicated that he was aware that marijuana was kept on the licensed premises, he admitted smoking marijuana in his living quarters, marijuana was found in his living quarters on several occasions and he did not fire his brother or Mary Williams after the execution of the first search warrant on February 1, 1983. The Respondent was negligent in supervising the operation of his business. The Respondent entered into a Stipulation on October 7, 1974, whereby he agreed to pay a civil penalty of $250.00 in settlement of charges that the Respondent sold alcoholic beverages for food coupons.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of a violation (possession of marijuana) within Section 561.29(1)(a) and (b), Florida Statutes, as alleged in Count 1. It is further RECOMMENDED: That the Respondent be found guilty of a violation (possession of marijuana) within Section 561.29(1)(b), Florida Statutes, as alleged in Count 2. The Respondent should, however, be found not guilty of a violation within Section 561.29(1)(a), Florida Statutes, as alleged in Count 2 and that portion of Count 2 should be dismissed. It is further RECOMMENDED: That the Respondent be found guilty of a violation within Section 561.29(1)(a), Florida Statutes (possession of marijuana on the licensed premises but not the marijuana found in his 1iving quarters), and a violation within Section 561.29(1)(b), Florida Statutes (possession of marijuana on the licensed premises and in the living quarters), as alleged in Count 3. It is further RECOMMENDED: That the Respondent be found not guilty of conspiracy as alleged in Count Count 4 should he dismissed. It is further RECOMMENDED: That the Respondent be found guilty of a violation (possession of marijuana by an employee) with Section 561.29(1)(a), Florida Statutes, as alleged in Count It is further RECOMMENDED: That the Respondent be found guilty of a violation (sale and/or delivery of marijuana by an employee) within Section 561.29(1)(a) , Florida Statutes, as alleged in Count 6. It is further RECOMMENDED: That the Respondent be found guilty of a violation (possession of marijuana by an employee) within Section 561.29(1)(a), Florida Statutes, as alleged in Count 7. It is further

Florida Laws (8) 120.57561.01561.29777.04823.10832.10893.03893.13
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. JOHNNIE WOODS, JR., D/B/A BLACK MAGIC, 84-001048 (1984)
Division of Administrative Hearings, Florida Number: 84-001048 Latest Update: Apr. 11, 1984

Findings Of Fact Johnnie Woods, Jr. is the owner of the licensed premises known as "Black Magic" located at 2908 Northwest 62nd Street, Miami, Florida, operating under alcoholic beverage license no. 23-5233, Series 2-COP. On January 26, 1984, Beverage Officer Davis entered the licensed premises known as Black Magic as part of an investigation to determine if drug violations were occurring on the licensed premises. On this visit, Davis observed numerous patrons either smoking marijuana (cannabis) or snorting suspected cocaine. On January 30, 1984, Beverage Officer Houston observed a barmaid known as May smoke a marijuana cigarette and snort suspected cocaine from a plate while working at the bar. Houston also purchased a marijuana cigarette from an unknown patron who she had seen walking through the bar with a baggie of rolled marijuana cigarettes. On this date, Houston was approached by a patron known as Daryl Chester-field who handed her a small brown envelope containing marijuana and some rolling papers. She then rolled a marijuana cigarette and placed it in her purse for safekeeping. While on the premises this date with Officer Houston, Officer Davis also observed numerous patrons openly smoking marijuana and snorting suspected cocaine. On February 2, 1984, Investigator Davis was on the licensed premises as part of this investigation. He observed an unidentified patron place a plastic bag of marijuana on top of a video game machine and roll several marijuana cigarettes while at the machine. This took place openly and no attempt was made by any employee to stop such activity. On February 10, 1984, Officer Houston entered the licensed premises as part of this investigation. She observed the on-duty bartender, Willie Brown, a/k/a Johnnie, smoke a marijuana cigarette while standing at the bar. At her request, Houston was referred to an individual known as Jimmy by the doorman, Slim, in order to purchase marijuana cigarettes. She thereafter purchased two separately rolled marijuana cigarettes from Jimmy for a total of two dollars. While purchasing the marijuana cigarettes from Jimmy, he inquired if Officer Houston would be interested in any cocaine. Later on February 10, 1984, Officer Davis approached Jimmy and purchased a $25 bag of cocaine from him. The transaction between Jimmy and Officer Davis occurred in the storeroom of the licensed premises from which Jimmy had earlier been observed removing beer to stock the bar. Before leaving the licensed premises this date, Jimmy approached Officer Davis and handed him a marijuana cigarette while Davis was seated at the bar. The delivery of this cigarette was unsolicited by either Officer Davis or Officer Houston. On February 16, 1984, Officers Houston and Davis again entered the licensed premises of Black Magic. Upon entering both officers observed the majority of the patrons either smoking marijuana or snorting what appeared to be cocaine. They also observed the on-duty bartender, May, smoking marijuana behind the bar. May was also seen this date snorting suspected cocaine from a saucer on the bar. While on the premises, Officer Houston again purchased two marijuana cigarettes from the individual known as Jimmy for a total price of two dollars. Also on this date, Houston approached the manager, Willie Brown, a/k/a Johnnie, and inquired if he had any cocaine. He then walked to the rear of the bar, entered the storage room, and returned with a small suede pouch from which he obtained a foil package containing cocaine. Houston gave Johnnie $25 in exchange for the package of cocaine. On March 1, 1984, Officer Thompson entered the premises of Black Magic as part of this investigation. Upon entering the licensed premises, Thompson observed numerous patrons openly smoking marijuana. While on the premises this date, Thompson purchased a $10 package of cocaine from the employee/manager known as Johnnie. The cocaine transaction took place inside the bar in an open manner. On March 2, 1984, Officer Thompson again entered the licensed premises as part of the investigation. Thompson observed the on-duty bartender, May, smoking a marijuana cigarette while working behind the bar. After observing May remove a cellophane bag containing several rolled marijuana cigarettes from her purse, Thompson inquired if she would sell him too of the cigarettes. In response to this request, May sold Thompson two marijuana cigarettes from the cellophane bag for two dollars. On the evening of March 2, 1984, Officer Thompson again entered the licensed premises at which time he observed the on-duty doorman, Slim, smoking a marijuana cigarette. He also observed numerous patrons openly smoking marijuana. On this occasion, Thompson inquired of an on-duty barmaid known as Felicia, if she had any cocaine. She initially stated that she had none, but later returned and asked Thompson what he wanted. He requested a ten dollar bag of cocaine. She then took Thompson's money and walked to the south end of the bar. Upon returning she handed him two foil packages containing cocaine. 1/ While on the licensed premises this date, Thompson observed the licensee, Johnnie Woods, Jr., seated at the south end of the bar with an unidentified individual who was observed smoking a marijuana cigarette. The controlled substances obtained from the employees and patrons of the licensed premises of Black Magic were maintained in the exclusive custody and control of the referenced beverage officers until such time as they could be submitted to the Metro-Dade Crime Lab for analysis. Upon submission to the Crime Lab, chemists analyzed each submission by the Division and found that each purchase made by the respective beverage agents were in fact the controlled substances represented to them at the times of the transactions. Upon each occasion that the beverage officers entered the bar during the investigation, there was widespread use of marijuana and cocaine throughout the licensed premises. While there were at least two signs on the licensed premises prohibiting the use or possession of drugs, at no time did the officers ever observe managers or employees of the licensed premises attempt to stop or restrict the use or sale of controlled substances on the licensed premises. In mitigation, Respondent established that he was hospitalized for a three-month period prior to and during the early portion of the investigation. He was, however, present on March 2, 1984, when controlled substances were openly used and delivered.

Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's alcoholic beverage license for a period of 90 days, including the emergency suspension now in effect. DONE and ENTERED this 11th day of April, 1984, 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 11th day of April, 1984.

Florida Laws (2) 561.29823.10
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs EDWARD LEE HOWELL, D/B/A MR. B'S LOUNGE, 95-001403 (1995)
Division of Administrative Hearings, Florida Filed:Fort Myers, Florida Mar. 23, 1995 Number: 95-001403 Latest Update: Aug. 28, 1996

Findings Of Fact The Respondent, Edward Lee Howell (Howell), holds alcoholic beverage license number 46-01252, Series 2-COP, for licensed premises located at 2712 Towles Street, Fort Myers, Florida, known as Mr. B's Lounge. Violation of Local Ordinance Lee County Ordinance 76-9, as amended by Ordinance 79-1, provides in pertinent part: All places or establishments within the unincorporated area of the county and lawfully licensed by the State Beverage Department of Florida, may sell or serve, or permit to be sold, served or consumed, any type of alcoholic beverage of any kind whatsoever for consumption both on or off the premises only during the hours of 7:00 a.m. and 2:00 a.m. of the following morning every day of the week, including Sundays. Howell was cited on or about July 1, 1989, for allegedly violating this "hours of sale" ordinance, but he was aquitted in August, 1989. In 1990, Lee County Sheriff's Office (LCSO) Deputy James Nygaard warned Howell a half dozen times not to sell alcoholic beverages after 2 p.m. On or about December 28, 1990, Nygaard cited Howell for allegedly violating the ordinance by allowing a patron to consume alcoholic beverages on the premises after hours. Howell was tried and acquitted because it was not proven that the patron was drinking an alcoholic beverage. After successive reassignments to another patrol zone and to work as a detective, Nygaard was reassigned to patrol the East Zone in January, 1995. Beginning in January, 1995, Nygaard warned Howell twice not to sell alcoholic beverages after 2 p.m. On or about March 11, 1995, Nygaard cited Howell for violating the ordinance. Howell denied the charges, which still were pending in criminal court at the time of the final hearing. Nygaard testified that, this time (in contrast to the December, 1990, charge), he retained a sample of the contents of the container out of which the patron was drinking after 2 p.m. He testified that the sample was tested and found to be an alcoholic beverage. But the evidence shed no light on the extent of Howell's responsibility for the violation (e.g., how long after 2 p.m. the violation occurred, whether the violation was flagrant, whether Howell was even on the premises at the time of the violation or, if not, how diligent he was in training his employees on how to prevent violations of the "hours of sale" ordinance.) Howell denied that he sells or serves or allows alcoholic beverages to be served, sold or consumed in violation of the ordinance. Mr. B's remains open after 2 a.m. and patrons dance and listen to music, but Howell testified that they are not allowed to drink alcohol in the lounge after 2 a.m. Towles Street Near Mr. B's Mr. B's Lounge is in a section of Fort Myers, Florida, where in recent years violent crime increasingly has become an undeniably serious problem to area residents and the LCSO, which is the law enforcement agency having jurisdiction. Towles Street is a two-lane road that runs between Edison Avenue and State Road 82 outside the city limits of the City of Fort Myers. During the evening hours, especially on weekends, large numbers of people park cars in the street and congregate in the area. Some of these people patronize Mr. B's, but many more congregate in the street and on both sides of the street up and down Towles Street in the vicinity of Mr. B's. A good number of these people drink too much and become noisy and violent. (Not all of the drinking takes place in Mr. B's, and not all of what is drunk comes from Mr. B's. Many of these people buy their alcoholic beverages elsewhere, or bring them from home, and drink their alcoholic beverages outside on and along Towles Street.) Many drive at recklessly high speeds up and down the street (when the streets are passable.) Loud music is played from stereos in car driving up and down the street and parked in the street. Some of these people, drunk or not, come to the area with the intention to engage in crime, violence and other disruptive conduct. More and more carry knives and firearms, or keep them in their cars, and many use or threaten to use their weapons. Assaults and armed robberies are common. The area around and including Mr. B's has become known to those who frequent it as a place to go to "hang out" and be a part of this violent scene. The violence, including stabbings and shootings, has become so prevalent that residents of the area who do not participate in the violence are afraid to leave their homes at night and, even in their homes, they are not completely safe from stray bullets. The violence and reputation for violence on Towles Street in the vicinity of Mr. B's has become like no other place in Lee County. One LCSO deputy testified that he has heard more automatic weapon fire on duty at night on Towles Street than he heard during his entire experience as a member of the United States armed forces. Some deputies testified that, especially on weekends, there often are so many cars parked illegally in Towles Street that deputies patrolling the area or responding to complaints have to park their police vehicles on Edison Avenue or State Road 82 and walk in. They believe that, when they are seen approaching, the people congregating in the vicinity of Mr. B's lock their weapons in cars and that many of them enter Mr. B's to avoid the deputies. On occasion, the crowds of people encountered by LCSO deputies on Towles Street do not disperse so readily. Once, two deputies responding to a call for service in the vicinity of Mr. B's were assaulted before reaching the lounge and received injuries, including a broken jaw, requiring medical attention in the hospital. (Howell assisted the deputies in subduing the assailant.) On another occasion, it took deputies approximately an hour to control and disperse the crowd, during which time another call for LCSO assistance had to go unanswered for half an hour. Some of the incidents on Towles Street occur before 2 a.m., but many occur later, after the LCSO patrols have been reduced to a single shift. With fewer deputies on patrol, the violence on Towles Street becomes an even greater problem for law enforcement. By the time backup arrives in response to calls on Towles Street, practically no deputies remain available to patrol or respond to calls for service in the rest of the zone. The Licensed Premises No sketch of the licensed premises was introduced in evidence. The evidence was that Mr. B's faces Towles Street and that the front door opens onto a front step that is separated from the street by an unpaved strip of grass and dirt about seven feet wide. Until very recently, Mr. B's had only four parking spaces and did not have a parking lot. The precise extent of the licensed premises was not made clear from the evidence. During an inspection of the licensed premises on February 23, 1995, DABT Special Agent Odom recovered 141 spent gun shell casings in the vicinity of Mr. B's, including: seventy-four 74 9mm's; three 38 Specials; sixteen 16 357 Magnums; four 45-caliber; three 30-caliber; three 44 Magnum; one 10mm; 2 25- caliber; and nineteen 12 gauge shotgun shell cases. Some of these spent shell casings were recovered between the front door to Mr. B's and Towles Street. Most were recovered within 15 to 20 feet from the lounge building, but some were recovered as far as 20 yards away, including some that were found all the way across Towles Street on the opposite side of the street. Four were recovered under the cushion of a couch inside Mr. B's, but there was no evidence how they got there and no evidence that they were fired inside Mr. B's. Except for these four, it was not proven that any of the spent shell casings actually were recovered from the licensed premises themselves. From February, 1991, through October, 1994, there have been 135 calls for LCSO service arising out of incidents in the vicinity of Mr. B's. Some of the calls reported finding lost property or suspicious persons or were for the purpose of reporting some other information to the LCSO. Many of the calls were for relatively minor offenses, such as disturbances, trespassing, vandalism, nuisances, car accidents and highway obstruction. But many were for more serious crimes such as assaults, use or display of firearms, burglaries and robberies. Although many of these calls were placed from a telephone at Mr. B's, the evidence was not clear which, if any, of the incidents instigating calls actually occurred at Mr. B's. It seems clear that the police records use a reference to "Mr. B's" as as short hand way of describing Towles Street in the vicinity of Mr. B's. Some of the incidents in the vicinity of Mr. B's constituted violent crimes. Since 1988, there have been: two murders; four attempted murders; 11 batteries with a firearm; two batteries with a knife; one sexual battery or attempted rape; one shooting into a vehicle; one robbery with a firearm; and two batteries with a dangerous weapon. Most of these crimes occurred outside of Mr. B's, and the evidence did not prove that they occurred on the licensed premises, or how close to the licensed premises they occurred. One incident that clearly occurred on the licensed premises was a fight that broke out during the early morning hours of February 12, 1995. One person was hit on the head with a claw hammer, and another was stabbed with a knife. After some of the participants left Mr. B's, fighting continued outside on the street. Someone telephoned the LCSO, and when deputies arrived, they witnessed four men kicking another who was lying on the ground behind a car, while approximately fifty other people stood watching. As the deputies approached, a man with a sawed-off shotgun walked up to the man lying on the ground and shot him in the leg. It was not clear from the evidence whether any of the people involved in the incident outside on the street had been patrons of Mr. B's. On or about August 3, 1993, the LCSO investigated an incident in which a patron of Mr. B's was shot while walking out the door of Mr. B's. The victim did not know who shot him or where the shot came from. On or about June 7, 1994, the LCSO investigated an incident involving an alleged sexual battery or attempted rape that occurred in the restroom at Mr. B's. The alleged victim in that case withdrew her complaint, and the case was closed. One LCSO deputy testified that he has received several telephone calls from a pay phone down the street at Edison Avenue reporting assaults and other crimes that allegedly occurred inside Mr. B's and that the victim reportedly was afraid to place the call to the police while still at Mr. B's (for fear of further assault.) But there was no specific evidence about any of these alleged crimes. Although some local residents blamed Mr. B's for the loud music heard in the neighborhood, especially on weekend nights, it was not clear whether the loud music being heard by the local residents actually is coming from Mr. B's, as opposed to being played from car stereos on the streets. The Respondent's Responsibility for the Violence and Noise It was not proven that Howell does anything to condone violence and noise in or around Mr. B's Lounge or that he is protecting criminals from apprehension by the LCSO. To the contrary, almost all of the crime reports to the LCSO from 2712 Towles Street were placed by Howell himself or his employees. Not only has Howell telephoned the police for assistance on many occasions, he also has put himself at risk of physical harm by helping law enforcement officers subdue violent subjects in and around the premises. In addition, Howell employs a bouncer who uses a metal detector to try to insure that no weapons are brought into Mr. B's and denies entrance to certain people known to cause problems. (Surprisingly, given the kind of people who congregate on Towles Street, there also was no evidence sufficient to support a finding of illegal drug use in or about the licensed premises.) One LCSO sergeant recalled an occasion when he confronted Howell about problems in and around Mr. B's and, in the sergeant's opinion, Howell treated him rudely. Howell does not recall the incident. No other law enforcement officer testified to any occasion when Howell was anything but cooperative with law enforcement. There was no evidence that the DABT counseled Howell on measures to take to reduce violence on his licensed premises. For example, the DABT could have required the Respondent to supervise and control the entire licensed premises, including both the building and grounds (including parking lot). The Respondent also could have been required to fully cooperate with law enforcement in its efforts to control crime in the area, including allowing LCSO complete access to the licensed premises. See Section 562.41(5), Fla. Stat. (1993). Instead, the evidence was that the LCSO complained to the DABT about Mr. B's on or about February 20, 1995, that the DABT inspected the premises on February 23, 1995, and that the DABT then initiated the proceedings that led to the issuance of the Emergency Suspension Order on or about March 16, 1995. Since Mr. B's has been under the Emergency Suspension Order, there have been markedly fewer problems for law enforcement and law-abiding residents in the area. The people who had been congregating near Mr. B's and causing problems either have found somewhere else to congregate or have dispersed for the time being. Mr. B's apparently attracted and served as a focal point for these people. It seems that suspending the Respondent's license has had a positive effect on the level of crime in the immediate vicinity. (However, some law enforcement officers seemed to support Howell's opinion that the people causing the problems near Mr. B's eventually will find another place to hang out and cause problems.) Clearly, the LCSO and many of the local residents would like to see Mr. B's closed permanently. But the reduction in violence and loitering after the Respondent's beverage license was suspended does not, in itself, prove that the Respondent was culpably responsible for violence and loitering that occurred while the licensed premises were open and operating. Howell operates a package store, not far from Mr. B's but within the city limits of Fort Myers, and near another lounge. City police regularly patrol the area, and it has relatively few of the problems experienced on Towles Street. A more frequent and visible law enforcement presence on Towles Street also would reduce violence and disturbances there. Five to ten years ago, Mr. B's operated in the same location with fewer problems. In those earlier years, LCSO patrolled the area more frequently. In those days, parking laws were enforced more consistently, and LCSO patrol cars could drive down Towles Street without difficulty. When loiterers were encountered in the street, LCSO required them to either go inside Mr. B's or go home.

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 (DABT), enter a final order: (1) dismissing the charges in the Notice to Show Cause against the Respondent, Edward Lee Howell; and (2) also dismissing the Notice to Show Cause seeking to impair the licensed location owned by the Respondent, William A. Bell. RECOMMENDED this 21st day of April, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-1403 and 95-1404 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. (However, the reputation attached to licensed premises actually applies not only to the licensed premises but also to Towles Street and the area surrounding Mr. B's. First sentence, rejected as not proven. (Many of the 176 calls on DABT Ex. 3 were not made from Mr. B's.) Second and third sentences, accepted and incorporated to the extent not subordinate or unnecessary. (However, it only was proven that a few of the violent acts actually were committed on the licensed premises.) Accepted and incorporated to the extent not subordinate or unnecessary. (One of the questions for determination in this case is the extent of Howell's "affirmative duty.") Rejected as not proven that the violent acts were committed by patrons or, if they were patrons, that they were committed on the licensed premises. Otherwise, the first sentence is accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. However, in the public mind, "Mr. B's" describes not just the licensed premises but also Towles Street and the area surrounding Mr. B's. First sentence, rejected as not proven that the initial service call reported the shooting of a patron. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the incidents described in the second sentence occurred during the investigation. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the 141 shell casings were recovered in the Respondent's "parking lot." (They were recovered from the immediate vicinity of Mr. B's, starting from the side of the building and extending for up to approximately 40 yards away, and including on the opposite side of Towles Street across from the licensed premises. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Nygaard warned Howell several times in 1990 before arresting him. Howell was tried and acquitted on a judge's ruling that it was not proven that the patron was drinking alcoholic beverages after hours. After Nygaard was reassigned to the East Zone in January, 1995, he again arrested Howell on similar charges, which Howell denies and which are still pending.) Accepted but subordinate and unnecessary. Accepted and incorporated. Howell's Proposed Findings of Fact. (Howell wrote a letter from which findings arguably have been proposed, as indicated.) Rejected as contrary to the greater weight of the evidence that the crimes described in the evidence did not "in the vicinity of" Mr. B's. Accepted that the Respondent recently added a parking lot and incorporated to the extent necessary. Accepted that, if they cooperate, the Respondent and LCSO can solve some of the problems, and incorporated to the extent necessary. Bell's Proposed Findings of Fact. (Bell also wrote a letter. Much of the letter is argument but findings arguably also have been proposed, as indicated. For purposes of these rulings, the unnumbered paragraphs of Bell's letter are treated as consecutive, separate proposed findings.) Accepted and incorporated. Rejected as argument and as not supported by any evidence. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as argument and as conclusion of law. Accepted and incorporated that Howell called LCSO frequently to report crime. Rejected as not proven that none of the incidents involved Mr. B's, that all involved "just the neighborhood"; accepted and incorporated that many of the calls involved incidents occurring off the licensed premises. The rest is rejected as argument and as subordinate and unnecessary. Rejected as not supported by the record that most of the alcoholic beverages drunk by people hanging around in Towles Street are from sources other than Mr. B's; accepted and incorporated that much is, and that all the liquor is. (Mr. B's has a Series 2-COP license.) Rejected as argument, as subordinate and unnecessary, and as unsupported by any evidence. Accepted and incorporated that LCSO has reduced patrols in the area, in part due to budgetary constraints but also in part due to the illegally parked cars that block Towles Street, and that Howell places many of the telephone calls reporting crime in the area. Otherwise, rejected in part as unsupported by any evidence, in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated that reduced police presence in areas like Towles Street increases crime. Otherwise, rejected as argument, as subordinate and as unnecessary. Accepted and incorporated that the DABT did not prove lack of due diligence. Otherwise, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. In part, rejected as contrary to the greater weight of the evidence (that only one of the violent crimes was reported to have originated in Mr. B's.) (See Findings of Fact 19 and 20.) Otherwise, accepted and incorporated in part. In part, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated that the wounds were not received on the licensed premises. Otherwise, rejected as cumulative. Accepted and incorporated that the evidence did not clearly identify either the victim or the assailant as being patrons. Otherwise, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Cumulative. Accepted and incorporated that Towles Street presents a difficult police problem and that increased patrols and manpower could help. Otherwise, rejected in part as unsupported by any evidence (the nine-block area), in part as argument, and in part as subordinate and unnecessary. Accepted and incorporated that many people congregate in the streets and that policing them is made difficult by the congestion. Otherwise, rejected in part as argument and in part as subordinate and unnecessary. 17.-18. Cumulative. Rejected that Tamayo's statement was naive. Accepted and incorporated that the problem could move elsewhere if Mr. B's were closed. Otherwise, argument, subordinate and unnecessary. Generally accepted and incorporated to the extent not subordinate or unnecessary, or argument. However, Bell does not seem to acknowledge the serious problems faced by law enforcement in the Towles Street. Rejected as contrary to the greater weight of the evidence that no problems occur before 2 a.m. Also, subordinate, unnecessary, and argument. 22.-23. Argument. COPIES FURNISHED: Thomas A. Klein, Esquire Chief Attorney Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1020 Edward Lee Howell 1348 Brook Hill Drive Ft. Myers, Florida 33916 William A. Bell 19450 Tammy Lane Ft. Myers, Florida 33917 Lynda L. Goodgame, Esquire General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris, Division Director Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1020

Florida Laws (3) 561.29561.58562.41
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs EL GRECO, INC., D/B/A EL GRECO, 94-003547 (1994)
Division of Administrative Hearings, Florida Filed:Lakeland, Florida Jun. 29, 1994 Number: 94-003547 Latest Update: Dec. 29, 1994

The Issue Whether Respondent unlawfully obstructed and/or hindered the inspection of his licensed premises by law enforcement officers and allowed or otherwise condoned the sale of alcoholic beverages in violation of a municipal ordinance concerning the hours of sale and, if so, what disciplinary action is warranted.

Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with regulating the sale of alcoholic beverages and tobacco in Florida. Respondent, El Greco, Inc., d/b/a El Greco is the holder of alcoholic beverage license number 63-00458, series 4-COP. Respondent's premises is located at 1109 East Main Street in Lakeland, Florida. Respondent's president is John Houvardis (herein Respondent). Petitioner issued two official warnings to Respondent on October 19, 1992. One warning was for a violation of Section 562.41, Florida Statutes, to wit, hindering or obstructing a law enforcement officer from conducting a search of the licensed premises which included locking a law enforcement officer from the premises. The other warning was for an alleged violation of the Lakeland City Ordinance relating to the sale, serving, or consumption of alcoholic beverages after the legal hours of sale. On January 29, 1994, Officer Ed Mingus of the Lakeland Police Department was dispatched to Respondent's premises at approximately 2:29 a.m. Officer Mingus was dispatched to investigate a complaint of "loud noises and sale of alcoholic beverages after hours". When Officer Mingus arrived at Respondent's premises on January 29, 1994, he heard noise coming from the licensed premises and observed several cars in the parking lot. The front door of the licensed premises was locked and Officer Mingus knocked to gain entry. An unidentified person answered the door and Officer Mingus identified himself as a police officer and requested entrance. Within seconds after requesting entrance, Respondent opened the door and allowed Officer Mingus inside the premises. At the time, approximately five employees were cleaning the licensed premises and no alcoholic beverages were observed either being served or consumed by Officer Mingus. Officer Mingus gained entry to the premises within five minutes of first knocking on the door. Officer Mingus suspected that there were other people inside and, in this regard, he asked Respondent if there were, in fact, other people in the licensed premises. Officer Mingus told Respondent of his suspicion that he was violating the hours of sale whereupon Respondent reiterated of his awareness of the ordinance prohibiting sale of alcoholic beverages after hours and insisted that he was not violating the ordinance. Officer Mingus thereafter requested permission from Respondent to search the licensed premises and Respondent consented to a search. Officer Mingus observed approximately nine or ten patrons in the kitchen area. Officer Mingus again reiterated his suspicion that Respondent was violating the municipal laws concerning the hours of sale and gave Respondent a verbal warning that if he was caught violating the ordinance, he would face criminal and administrative sanctions. Detective Denny Phillips of the Lakeland Police Department conducted a sight investigation of Respondent's premises on January 29, 1994, both prior to and while Officer Mingus was inside the licensed premises. Detective Phillips was across the street from the licensed premises with an unobstructed view of the premises on January 29, 1994. On February 26, 1994, Detective Phillips continued his investigation of Respondent's licensed premises. Detective Phillips instructed Officer Ed Cain, also a patrol officer for the Lakeland Police Department, to enter the licensed premises in an undercover capacity. Officer Cain was instructed to attempt to remain in the licensed premises after 2:00 a.m., and to purchase an alcoholic beverage. Officer Cain entered the licensed premises at approximately 12:30 a.m. on February 26, 1994, and observed a crowded lounge consisting mostly of college-aged patrons. Respondent was observed inside the premises. Officer Cain observed a large number of the patrons leaving the premises by 1:00 a.m., and Respondent's employees escorted the remaining patrons from the licensed premises at approximately 1:45 a.m. Officer Cain was not asked to leave the licensed premises and he remained along with approximately four or five other patrons. At approximately 2:10 a.m., Officer Cain ordered a shot of Sambuca, an alcoholic beverage described as a licorice liqueur, from a female employee. Officer Cain placed $2.00 for the beverage on the counter of the bar. Officer Cain observed that same employee placing the money in a bank bag containing the contents of the cash register. Officer Cain is familiar with alcoholic beverages and what they smell and taste like and has consumed alcoholic beverages prior to the evening of February 26, 1994. Officer Cain exited the licensed premises and notified Detective Phillips that he had purchased an alcoholic beverage from an employee after 2:00 a.m. Detective Phillips entered the licensed premises and met with Respondent who was still in the licensed premises. Detective Phillips advised Respondent that undercover officer Cain had purchased an alcoholic beverage from an employee after 2:00 a.m. and that Respondent and the employee would be cited for violation of the municipal ordinance respecting the sale of alcoholic beverages after hours. Respondent usually has extra food left over from functions that he has at the licensed premises from time to time and the employees and others who were in the kitchen area of the licensed premises after 2:00 a.m., on January 29, 1994, were eating some of that extra food.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order imposing a civil penalty against Respondent in the amount of one thousand ($1,000) dollars for the above-referenced violation (sale of an alcoholic beverage after hours). DONE AND ENTERED this 22nd day of November, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1994. APPENDIX TO RECOMMENDED ORDER Rulings on Petitioner's proposed findings of fact: Paragraph 4, rejected, unnecessary and not probative. Paragraph 10, adopted as modified, paragraph 5, Recommended Order. Paragraph 16, adopted as modified, paragraph 8, Recommended Order. Paragraph 20, rejected, contrary to the greater weight of evidence, paragraphs 11 and 12, Recommended Order. Paragraph 27, rejected as being a recitation of testimony, and not proposed findings of fact. COPIES FURNISHED: John M. Houvardas, President El Greco, Inc. 1109 East Main Street Lakeland, Florida 33801 Richard Courtemanche, Jr., Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris, Acting Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (3) 120.57561.29562.41
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs CERVERA BLANCO CURINTON, D/B/A MY SUPER STORE, 97-004719 (1997)
Division of Administrative Hearings, Florida Filed:Daytona Beach, Florida Oct. 13, 1997 Number: 97-004719 Latest Update: Feb. 04, 1999

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

Florida Laws (10) 120.57561.11561.29561.701561.705561.706562.11562.47775.082775.083 Florida Administrative Code (1) 61A-2.022
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs WORKMAN, INC., T/A COASTAL MART, 93-005987 (1993)
Division of Administrative Hearings, Florida Filed:Tampa, Florida Oct. 22, 1993 Number: 93-005987 Latest Update: Aug. 28, 1996

Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the regulatory agency charged with enforcing beverage and cigarette tax laws. As part of its duties, Petitioner investigate the sales of cigarettes to minors (under age persons). Respondent, Workman, Inc., d/b/a Coastal Mart, is the holder of alcoholic beverage license number 39-02924, series 1-APS, and retail tobacco products permit number 39-04440. Respondent's licensed premises is located at 9931 North Florida Avenue, Tampa, Florida. Raymond Daoud is Respondent's sole stockholder and is a corporate officer. Pursuant to an anonymous complaint received by Petitioner during the spring of 1993, Special Agent Joseph A. Maggio directed investigative aide Kimberly Siebel to enter the premises of Coastal Mart and attempt to purchase cigarettes. Petitioner, during times material, utilized the services of investigative aides Kimberly Siebel and Stephanie Haley, whose birth dates are September 20, 1975, and January 24, 1978, respectively. Both aides were under the age of 18 during the spring of 1993. Investigative aides Siebel and Haley, are trained by Petitioner, when conducting investigations for the purchase of either beer or cigarettes, to enter premises and to truthfully tell their age when requested. They also provide proper identification to establish their age if requested to do so by the clerk when they are attempting to purchase beer or cigarettes. This procedure was used in this case by investigative aides Siebel and Haley when they purchased cigarettes from Respondent on May 20 and July 8, 1993. When investigative aide Siebel purchased cigarettes from Respondent on May 20, 1993, she had previously worked as an undercover operative for Petitioner approximately 30 times. On May 20, 1993, Siebel entered the premises of Respondent with Special Agent Maggio at approximately 9:25 p.m. Investigative aide Siebel approached the counter and ordered a pack of Marlboro Light cigarettes from the clerk who was later identified as Angela Schulte, an employee of Respondent. Ms. Siebel received a pack of Marlboro Light cigarettes as requested from Schulte without being asked for identification. She paid for the cigarettes and exited the store. Special Agent Maggio observed the purchase of cigarettes by Siebel from his position next in line behind her. When Siebel purchased the cigarettes from Schulte on May 20, 1993, she and Special Agent Maggio observed Respondent, Daoud, behind the counter when they entered the licensed premises. When Siebel and Maggio exited the premises, Siebel gave the cigarettes to Maggio. Maggio placed the cigarettes in a plastic bag and Siebel signed them. Maggio then sealed and placed them in the locked trunk of his vehicle until they were deposited in Petitioner's evidence file the following day. Approximately ten minutes after Siebel purchased the cigarettes and turned them over to Maggio, he reentered the premises, identified himself to Schulte, and advised her that she was under arrest for the sale of cigarettes to an under age person. Daoud was still inside the premises near the front counter. Special Agent Fisher, who is no longer employed by Petitioner, accompanied Special Agent Maggio inside the premises. Fisher completed a letter of warning and Daoud signed the warning. Fisher gave Daoud a copy of the warning as they left. On July 8, 1993, Maggio again directed investigative aide Stephanie Haley to enter Respondent's premises to attempt to purchase cigarettes. On July 8, 1993, investigative aide Haley was fifteen years old. Haley had on her person a Florida Drivers License showing her birthday to be January 24, 1978. On July 8, 1993, investigative aide Haley had previously acted as an undercover operative for Petitioner approximately 20 times. On July 8, 1993, Haley entered the premises of Respondent and approached the counter. She ordered a pack of Marlboro Light cigarettes from the clerk, who was later identified as Raymond Daoud. Daoud asked Haley for identification whereupon she presented her Florida Drivers License. Daoud examined the license and completed the transaction. Haley exited the premises and turned over the cigarettes purchased to Special Agent Maggio. Special Agents Maggio and Bock witnessed the transaction from a vantage point outside the premises. Maggio and Special Agent Bock then entered the premises of Coastal Mart and Bock identified himself and placed Daoud under arrest for the sale of cigarettes to an underage person. Daoud complained that he had been "setup" and that he remembered the girl, "thought she was young," and asked her for identification. Daoud observed Haley's license and thought that it had eighteen years of age on it. Special Agent Bock reminded Daoud that the license did not have an age on it. Daoud insisted that he thought the license had the date 1979 which would, of course, make investigative aide Haley, fourteen when she was, in fact, fifteen at the time. Petitioner has a policy of not letting undercover operatives reenter premises to allow licensed vendors to review items from undercover operatives such as their identification cards, etc., so as not to jeopardize them in future operations and for their own personal safety. Petitioner explained to Respondent that he could examine the identifying card (license) either during the hearing or in court. Respondent suspended Schulte for one week without pay for selling cigarettes to a minor. Respondent also verbally warned Schulte for selling cigarettes to a minor and reminded her that it was against company policy to do so. Schulte recalled that Respondent was "extremely mad" about the incident. Respondent would not knowingly sell cigarettes or alcoholic beverages to a minor. Respondent has operated his business for approximately three years, and this is the first infraction that he has received for the sale of beer or cigarettes to a minor.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent's alcoholic beverage license number 39-02924, series #1-APS, be assessed a $500.00 civil penalty for each count for a total civil penalty of $1,000.00. 1/ RECOMMENDED in Tallahassee, Leon County, Florida, this 4th day of April, 1994. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1994.

Florida Laws (2) 120.57561.29
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BRUCE F. EGGETT AND TIMOTHY R. MILLER vs. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, 80-001503 (1980)
Division of Administrative Hearings, Florida Number: 80-001503 Latest Update: Oct. 06, 1980

The Issue The issue presented concerns the entitlement of the named Petitioners to he granted a new Series 2-COP beverage license from the Respondent, in the face of a disapproval letter entered by the Director of the State of Florida, Division of Alcoholic Beverage and Tobacco.

Findings Of Fact Bruce F. Eggett and Timothy R. Miller, the named Petitioners in this cause, have made application for the issuance of a new Series 2-COP beverage license. This application has been made with the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco and in response to this request the Director of the Division of Alcoholic Beverages and Tobacco wrote the Petitioners on July 10, 1980, and in the course of that correspondence indicated his intent to deny the license application. The stated ground for denial was that "one of the applicants convicted of felonies within past fifteen years." The stated authority for the denial was Section 561.15, Florida Statutes. 1/ The Petitioners did not agree with the decision of the Director and orally requested an administrative hearing in this cause. This request was made with Captain Jack Wallace, Beverage Officer and District Supervisor for the Orlando, Florida, District. After receiving the oral request, this matter was made known to the legal staff of the Respondent and one of the staff attorneys, acting at the behest of the Director of the Division of Alcoholic Beverages and Tobacco, asked the Division of Administrative Hearings to conduct the formal hearing pursuant to Section 120.57(1), Florida Statutes. The hearing was conducted on September 8, 1980, and although the Petitioners had been duly noticed of the hearing, the Petitioners did not attend nor offer anything in behalf of their request for license. The Respondent presented copies of the license application request of both Bruce Francis Eggett and Timothy Robert Miller. The application form mentioned here is a personal questionnaire, individually, completed by the Petitioners. (Copies of those personal questionnaires pertaining to Eggett and Miller may be found as the Respondent's Exhibits No.1 and 2 admitted into evidence respectively.) Question 6 of the questionnaire asks the following: Have you ever been: Arrested for violation of any other law of this state, any other state or the United States? (excluding minor traffic) If answer to any of these questions is yes, list aliases and give full disclosure of charges, dates, arresting agencies and places of arrest." To this question, the Petitioner Eggett marked "yes" and stated (1) 1971 breaking and entering and (2) 1977, delivery of Methaquaalude. In response to the same question, Petitioner Miller answered that he had been arrested in 1968 for public intoxication and blocking traffic in Canton, Ohio. No further proof was offered by the Respondent on the question of these arrests and the disposition made of the matters.

Recommendation It is RECOMMENDED that the Director of the State of Florida, Division of Alcoholic beverage and Tobacco, deny the Petitioners, Bruce F. Eggett's and Timothy P. Miller's request to be granted a new Series 2-COP beverage license. DONE AND ENTERED this 24th day of September, 1980, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1980. Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1980.

Florida Laws (2) 120.57561.15
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. MARY LENER ARNOLD, T/A BUGGS` DRIVE INN, 76-001926 (1976)
Division of Administrative Hearings, Florida Number: 76-001926 Latest Update: Jan. 11, 1977

The Issue Whether or not on or about the 14th day of May, 1976, Mary Lener Arnold, a licensed vendor, did have in her possession, permit or allow someone else to have unlawfully in their possession on Mary Lener Arnold's licensed premises, alcoholic beverages, to wit: 9 half-pints of Smirnoff Vodka, not authorized by law to be sold under her license, contrary to 562.02, F.S.

Findings Of Fact The Respondent, Mary Lener Arnold, t/a Buggs' Drive Inn, held on May 14, 1976 and now holds beverage license no. 50-2 series 1-COP with the State of Florida, Division of Beverage. This licensed premises is located on Main Street, Greenville, Florida. On May 14, 1976, a confidential informant with the Division of Beverage went to the licensed premise of the Respondent in Greenville, Florida and purchased a bottle of alcoholic beverage not permitted under a 1-COP license. This confidential informant was working for officer B.C. Maxwell of the State of Florida, Division of Beverage. Officer Maxwell along with other officers with the Division of Beverage and officers of the Madison County, Sheriff's office returned to the licensed premises on May 14, 1976 and in looking through the licensed premises found a black bag containing 9 half-pints of Smirnoff Vodka on the licensed premises. This Smirnoff Vodka was not permissible on the licensed premises under a 1-COP license. On the licensed premises at the time of the inspection was one Patsy Jackson Williams who indicated that she was in charge of the premises. The confidential informant who had purchased the bottle of alcoholic beverage indicated that his purchase had been made from the same Patsy Jackson Williams. The black bag with its contents of 9 half-pints of Smirnoff Vodka is Petitioner's Exhibit #2 admitted into evidence. The alcoholic beverage purchased by the confidential informant is Petitioner's Exhibit #4 admitted into evidence.

Recommendation It is recommended that the Respondent, Mary Lener Arnold have her beverage license suspended for a period of 30 days based upon the charge proven in the hearing. DONE and ENTERED this 22nd day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Larry D. Winson, Esquire Staff Attorney Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Mary Lener Arnold t/a Buggs' Drive Inn Main Street Greenville, Florida

Florida Laws (2) 561.29562.02
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