Findings Of Fact Based on the stipulated record described above, I make the following relevant findings of fact: The Petitioner currently holds alcoholic beverage license number 11-74 SRX, series 4-COP. The currently licensed premises include all of the rooms within Petitioner's clubhouse. On or about September 14, 1984, the Petitioner filed an application in which it requested that its licensed premises be extended to include all of the golf course which is adjacent to the clubhouse. The Petitioner's golf course consists of approximately 262 acres. The Petitioner is the owner of and has exclusive possession and control over all of the premises it seeks to have included in its license. The area Petitioner seeks to have included in its license includes other buildings in addition to the clubhouse building. The Petitioner does not hold a golf club license. The Petitioner does not by its application propose to have more than three separate rooms or enclosures in which permanent bars or counters will be located. A licensee is required to designate the licensed premises in a sketch included in or attached to the application for license so that the Division of Alcoholic Beverages and Tobacco can determine the area over which they have regulatory authority. The Division of Alcoholic Beverages and Tobacco has, on some occasions, granted applications for series 4-COP special restaurant licenses which included in the sketch of the licensed premises an uncovered patio area immediately adjacent to the covered portion of the restaurant building, which patio areas were used by the restaurant as an area for service of food and beverages. The Division of Alcoholic Beverages has not presented any reason for denying the Petitioner's application other than the opinion that the existing statutory provisions do not authorize the extension sought by the Petitioner. The Petitioner's alcoholic beverage license was issued pursuant to a special act of the Legislature. Chapter 70-574, Laws of Florida. Following receipt of notice that the Division of Alcoholic Beverages and Tobacco proposed to deny its application, the Petitioner filed a timely request for formal proceedings.
Recommendation For all of the foregoing reasons it is recommended that the Division of Alcoholic Beverages and Tobacco issue a Final Order denying the Petitioner's application to extend the area of its licensed premises. DONE and ORDERED this 25 day of June, 1985, at Tallahassee, Florida. Hearings Hearings MICHAEL M. PARRISH Hearing Officer Division of Administrative The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative this 25th day of June, 1985 COPIES FURNISHED: Sandra Stockwell, Esquire Department of Business Regulation 725 S. Bronough St. Tallahassee, Florida 32301 William Andrews, Esquire P.O. Drawer C Gainesville, Florida 32602 Howard M. Rasmussen Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronough St. Tallahassee, Florida 32301
Findings Of Fact Petitioner is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is 201 West, Inc., d/b/a Central City, who is the holder of alcoholic beverage license number 11-00259, Series 4-COP, a "quota license." Respondent's licensed premises is located at 201 West University Avenue, Gainesville, Alachua County, Florida. Craig Cinque is Respondent's sole director and corporate officer. Joseph Cinque, Craig Cinque's father, was formerly Respondent's sole director and corporate officer. Prior to becoming the owner of Central City, Craig Cinque managed the licensed premises on behalf of his father. During this period of time, the Division filed ten separate Notices to Show Cause against Respondent, alleging multiple sales to and consumption of alcoholic beverages by underaged persons. On August 29, 1989, the licensed premises was closed by an Emergency Order of Suspension. The administrative charges arising therefrom were resolved by a Stipulation and Consent Agreement, wherein the Respondent in that case admitted substantially to all of the violations. Craig Cinque individually executed the agreement, admitted responsibility for previous violations, and acknowledged that future violations of a similar nature could result in suspension or revocation of the alcoholic beverage license. The agency has issued numerous Notices to Show Cause against Respondent since the entry of the consent order. However, unproven Notices to Show Cause and unproven counts within any Notices to Show Cause are only unproven accusations, and as such are not probative herein even for purposes of showing "aggravation." Beverage Law Institute is an "approved trainer" under the Responsible Vendors Act, having been approved by the Petitioner as such. Petitioner certified Respondent Central City as a certified Responsible Vendor under the Act, on April 13, 1990. See, Subsections 561.701-561.706 F.S. Of the 483 nondistributor alcoholic beverage licensees in Alachua County, only 94 have been certified by Petitioner as Responsible Vendors. Of those 94, only 13 hold "4-COP" licenses, the category of license held by Respondent, which permits liquor, beer, or wine for consumption on premises or in a sealed container. Prior to the events of the instant Notices to Show Cause, and continuing through the 14-month period of the Notices to Show Cause and beyond, Respondent was engaged in a voluntary program designed to teach employees not to serve alcoholic beverages to underaged persons. Many of the materials therefor were provided by Beverage Law Institute. The training program and procedures involved multiple ID checkers at the front door. Also at the front door, wristbands to signify and quickly identify patrons of legal drinking age were issued. Once snapped on a customer's wrist, the band itself was stamped at a right angle across the customer's wrist to prevent or at least inhibit the wristband's transfer to an underage patron and to prevent a patron bringing in a counterfeit or "ringer" wristband. All patrons, regardless of age, received a stamp directly on the wrist to identify that they had paid their admission fee. Security personnel circulated inside the licensed premises checking drinks and wristbands, and waitresses were also instructed to check on drinks already purchased by customers. The training programs and procedures also involved Respondent's policy manual regarding IDs, extensive training and testing of employees, frequent oral reminders to employees concerning the law and concerning licensee policy, sporadic staff meetings regarding policy, videotaped instruction programs, provision of and instructions to employees to use an "ID Checking Guide" at the front door and at every internal bar within the licensed premises, confiscation of fake or questionable IDs at the door, 1/ and use of warning handbills given out to customers. Upon receipt, the handbills proclaiming the licensee's "of age only" policy were usually immediately discarded by customers. Some employees looked upon their training with more enthusiasm than others. Some employees considered the policy and training all for show. Most employees complied regularly with the requirements for training, review, and instructions. A few were lax in their compliance and had to be urged to attend staff meetings or to retest. In addition to all this, from the time the Responsible Vendor tests were available, all employees except two cashiers were tested according to the requirements of the Responsible Vendor Act and within the time frames provided therein. Every underage operative who testified admitted she or he had been "carded" at the door and that none had been issued wristbands. The parties stipulated that all of the individuals named in the four Notices to Show Cause (except for those alleged to have sold or given alcoholic beverages) were under the legal drinking age on the dates indicated by the respective Notices to Show Cause and that although each of these individuals "was actually in possession of alcoholic beverages as plead (sic), there was no evidence that any of the alcoholic beverages were obtained from Respondent's employees, agents, or servants." The stipulation listed the underage persons of the Notices to Show Cause but did not employ the term "consumption" which was specifically used only in the second Notice to Show Cause (GA11890496). Petitioner put on no witnesses as to "consumption." Likewise, Petitioner did not have admitted in evidence any confiscated alcoholic beverages alleged to have been sold by Respondent's agents/employees, nor did Petitioner present any laboratory reports to establish that any substance sold was alcohol. The only evidence of alcohol content is discussed infra. With regard to Craig Cinque's attitude and Central City's compliance with the Responsible Vendors Act, the testimony of Eileen Tenly and of William Cooter has been weighed and considered. Ms. Tenly is a totally noncredible witness whose testimony demonstrates an "axe to grind," and whose candor and demeanor is unpersuasive of anything except her animosity for Mr. Cinque. Petitioner's Investigator William Cooter, however, testified credibly that after having numerous conversations with Mr. Cinque on the subject of underage sales, Mr. Cinque stated that he was not worried about losing his alcoholic beverage license because he could get another one in his mother's name. On the other hand, Mr. Cooter, by his own testimony, has been invited by Mr. Cinque to instruct and has, in fact, instructed Mr. Cinque's employees on how to prevent underage drinking. The evidence as a whole, but most particularly that of Prince Miles, Respondent's janitor, who is a credible witness, is persuasive that patrons sometimes smuggle alcoholic beverages onto the licensed premises and that each time the establishment closes, commercial alcoholic beverage containers which are not part of the inventory sold by Respondent must be swept out. Since this smuggling activity must substantially reduce Respondent's profits, it is a logical inference that such smuggling is contrary to Respondent's policy and that Respondent does not encourage or condone it, whether done by adults or minors. I. Notice to Show Cause GA11890374; September 16, 1989 through February 9, 1990; sale to Toombs, Kittles, Goldtrap, and Ormsbee by Green, Halladay, Howell, and Grimes and possession by Peters, Conf, Kelly, Garcia, Fernandez, Shiskin, Brejhanan, Benz, Yawn, and Plettner All of the violations charged in Notice to Show Cause GA11890374 arose prior to Respondent's becoming a certified Responsible Vendor on April 13, 1990. On September 16, 1989, Ryan Conf and Alejandra Peters were each under the age of 21 and in actual possession of alcoholic beverages inside the licensed premises as pled. On September 19, 1989, Central City bartender David Green sold the Division's underaged operative, Bridgette Toombs, a liquid beverage in a long- neck, factory-produced 12-ounce bottle labelled "Michelob Dry." At that time, the licensed premises was not busy and Mr. Green noted that Ms. Toombs had no wristband. He therefore checked Ms. Toombs' underage ID and instructed her that since she was old enough to drink, she should go get a wristband. This transaction was observed by Petitioner's agent, Ms. Pendarakis, but Ms. Pendarakis did not overhear the conversation. After delivering a sample of the liquid beverage to Ms. Pendarakis in the ladies' room, Ms. Toombs crossed in front of Mr. Green's bar on her way to exit the licensed premises. Mr. Green sent word to Ms. Toombs by another Central City employee that he wanted to see her. Ms. Toombs complied with Mr. Green's request and showed him her underage ID once more. At that point, Mr. Green recognized his error in thinking that Ms. Toombs was 21 or over and called over several other Central City employees, all of whom viewed the ID showing Ms. Toombs was actually two months short of 19 years old. Mr. Green was not arrested until after the ID was passed around, so it may be inferred that his recognizing his mistake was not the result of any confrontation with Petitioner's agents or law enforcement officers or due to his perception that he had been "caught." Indeed, Petitioner's witness, Ms. Toombs, attributed Mr. Green's illegal sale to her as a mistake in subtraction. Mr. Green had previously successfully passed all tests required under the licensee's policy in existence before the Responsible Vendor tests were available. On October 20, 1989, Charlotte Kelly and Alezandro Garcia, who were under the age of 21, were each in the actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1989, Cesar Fernandez, who was under the age of 21, was in possession of an alcoholic beverage inside the licensed premises. On the same date, underage operative Megan Kittles was inside the licensed premises. She was not wearing a wristband, and her hand was stamped indicating that she was under 21. She first approached a white male bartender who checked her and refused to serve her. She then ordered a rum and coke from Respondent's bartender, Craig Halladay. Mr. Halladay did not check Ms. Kittles' ID and served her a liquid beverage which Mr. Szabo of the Division testified that he had identified by smell as containing alcohol. No one saw the drink mixed, and Mr. Szabo admitted that he did not know what kind of alcohol the drink contained. He stated that he "would not swear it was rum." Mr. Szabo also was not aware until formal hearing that Respondent sold any nonalcoholic mixed drinks. Although the evidence is weak, it is persuasive that Ms. Kittles was served alcohol. Mr. Halladay successfully passed the licensee's policy test before this incident and the Responsible Vendor test afterwards. Also on October 21, 1989, Matthew Goldtrap, another underage operative, ordered a "Budweiser" and obtained a 12-ounce bottle labelled "beer" from a floor waitress named Shannon Howell. Mr. Goldtrap had no wristband but did have a stamp on his wrist. He gave the container to Investigator Smith. Mr. Szabo then took both of Respondent's employees into custody. Mr. Goldtrap does not drink alcohol. Investigator Smith did not testify, but it is inferred from the description of the beer bottle and the circumstances of the transaction as a whole that Mr. Goldtrap was served an alcoholic beverage. Ms. Howell successfully passed the licensee's test prior to this incident. On January 19, 1990, Scott Shiskin, Michael Brejhanan, and Carolyn Benz, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. On February 9, 1990, Central City bartender Steve Grimes sold Petitioner's 19-year old operative Octavia Ormsbee a liquid beverage. Ms. Ormsbee, who had no wristband on, was first denied a sale of alcoholic beverage at the downstairs back bar after Respondent's bartender there checked her underage ID. Ms. Ormsbee then went to an upstairs bar and ordered a "Bud Light." She was told by Mr. Grimes, a bartender at that bar, that they were out of "Bud Light," and by agreement, a beer bottle labelled "Budweiser" was substituted. Ms. Ormsbee does not drink alcohol and did not testify that what she received from Mr. Grimes was alcohol. The bottle purchased by Ms. Ormsbee was turned over to Officer Byrd of the Gainesville Police Department. Officer Byrd, who is familiar with alcoholic beverages through his own education, training, practice, and experience, identified the contents of the bottle purchased by Ms. Ormsbee as being "beer." Officer Byrd turned the bottle over to Petitioner's agent Cooter. Also on this occasion, Preston Yawn and Eric Plettner, who were under the age of 21, were each actually in possession of alcoholic beverages inside the licensed premises. Mr. Grimes had successfully passed the licensee's policy test prior to this incident. All of the underaged operatives who testified concerning this Notice to Show Cause testified that Petitioner's adult operatives forbade them to drink (consume) what they were sold and that they did not consume any. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the minors actually named in the Notice to Show Cause constituted their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, mere possession does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 2/ Therefore, Petitioner has only established that on September 19, 1989 Respondent's bartender sold an alcoholic beverage to Petitioner's underage operative Bridgette Toombs; that on October 21, 1989, Respondent's bartender sold an alcoholic beverage to the Petitioner's underage operative Megan Kittles; that also on October 21, 1989, Respondent's floor waitress sold Petitioner's underage operative Matthew Goldtrap an alcoholic beverage; and that on February 9, 1990, Respondent's bartender sold the Division's underage operative Octavia Ormsbee an alcoholic beverage. One of these sales was clearly a mistake and two other operatives had to go to two bartenders each before an illegal sale was made. II. Notice to Show Cause GA11890496; June 8, 1990 through June 16, 1990; sale to Wearner by Edge and to Seligman by Lemberger and Bergine and possession by Tetstone, Lockey, Klug, Skipper, and Bissell On June 8, 1990, Jennifer Tetstone and Amy Lockey, who were under the age of 21, were in actual possession of alcoholic beverages inside the licensed premises. On June 16, 1990, Ann Klug, Shana Skipper, and Michael Bissell were in actual possession of alcoholic beverages inside the licensed premises. Also on June 16, 1990, Central City bartenders Michael Edge, Michael Bergine, and Robert Lemberger, respectively, sold each of the Division's underage operatives Kathy Wearner (who did not testify but who was stipulated to be underage) and Charles Seligman an alcoholic beverage. Neither underaged operative wore a wristband or was requested to produce an ID for purposes of the respective sales. As of date of formal hearing, the Respondent continued to employ these same bartenders. All of these bartenders had successfully completed the Responsible Vendor test before these incidents. Mr. Edge also had passed the licensee's earlier policy test. The underaged operative, Kathy Wearner, asked Michael Edge for "a Budweiser" and was sold liquid in a "Budweiser" beer bottle inverted in a drinking glass. Officer Rockey of the Gainesville Police Department convincingly described the liquid that came out of the bottle as beer, an alcoholic beverage. He turned the materials confiscated over to an unnamed agent of Respondent and has not seen them since. On the same date, Central City bartender Robert Lemberger sold a 12-ounce bottle labelled "Budweiser" to 18- year-old operative Charles Seligman. Mr. Seligman was at all times without a wristband and bearing a stamp on his hand. Mr. Seligman delivered the bottle he received from Mr. Lemberger to Officer Posey of the Gainesville Police Department who had watched the entire transaction. Mr. Seligman later purchased a 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to Officer Posey. Mr. Seligman purchased a third 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to one of Petitioner's agents, Ernest Wilson. Mr. Seligman does not drink alcohol. Agent Wilson does drink alcohol and testified that the bottle Charles Seligman handed him was, in fact, beer. Although Agent Wilson also testified that Mr. Seligman's first name was "Tom" and that Mr. Seligman had purchased a rum drink, nonetheless, Mr. Wilson was convincing that the bottle handed him by Mr. Seligman did, in fact, contain beer, an alcoholic beverage. Officer Posey convincingly described the first bottle he received from Mr. Seligman as containing beer, an alcoholic beverage, and upon all the circumstances, the undersigned infers that the second bottle given Officer Posey also contained beer. All the underaged operatives who testified on this Notice to Show Cause testified that they were forbidden to drink (consume) what they were sold and did not do so. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the other minors actually named in the Notice to Show Cause constitutes their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 3/ Therefore, Petitioner has established only that on June 16, 1990 Respondent's personnel sold one alcoholic beverage to the Petitioner's underage operative Wearner and three alcoholic beverages to the Petitioner's underage operative Seligman. III. Notice to Show Cause GA11900209; September 22, 1990 through September 29, 1990; service to, or consumption by Stanton, Coody, Willis, and, Torres On September 22, 1990, Amy Stanton and Janet Coody, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. On September 29, 1990, Betty Willis and Jose Torres, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 4/ IV. Notice to Show Cause GA11900254 October 19, 1990 through November 16, 1990; 9 counts possession by Harriett, Ortega, McKinney, Nelson, Smith, Winter, Joyner, Cooke, Sammon; "giving" by Blackwell and Strawser On October 19, 1990, Steven Harriett, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1990, Jamie Ortega, who was under the age of 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 20, 1990, Brian McKinney, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On November 15, 1990, Karen Nelson, Hollie Smith, Michael Winter, and Julia Joyner, all underage, were in actual possession of an alcoholic beverage inside the licensed premises. On November 16, 1990, Denise Cooke and Teresa Sammon, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 5/ No evidence was introduced to establish the allegations of Counts 4 and 6 of Notice to Show Cause GA11900254, alleging "giving."
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic and Beverages and Tobacco enter a Final Order dismissing Notices to Show Cause GA11900209 and GA11900254; finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890374, imposing a total of $1750 in civil fines therefor; and finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890496, imposing a total of $2000 in civil fines therefor. RECOMMENDED this 28th day of June, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1991.
Findings Of Fact At all times pertinent to the issues herein, alcoholic beverage license No. 26-01841, Series No. 2-APS, was issued to Respondents, Frank D. and Estella S. Ryers, for their establishment known as the Big B Restaurant, located at 5570 Avenue B, Jacksonville, Florida. A 2-APS license permits the package sale only of beer and wine. It does not permit the consumption on the premises of beer, wine, or liquor. On March 27, 1983, Investigator Wendell M. Reeves conducted an undercover operation directed against the Big B Restaurant predicated upon reports received by Petitioner that Respondents were conducting sales of alcoholic beverages not permitted by the license at the licensed premises. In furtherance of that operation, Reeves utilized another beverage agent, Van Young, in an undercover capacity to make a controlled buy of an improperly sold substance from the licensees. Prior to sending Young into the licensed premises, Reeves searched Young to ensure that he, Young, had no alcoholic beverage or money in his possession. Satisfying himself that that was the case, he gave Young $15 in U.S. currency and sent him into the licensed premises to make the buy. Young entered the Big B Restaurant at 1:00 p.m. and came out 17 minutes later. When he came out of the licensed premises, Young came over to where Reeves was waiting and turned over to him a sealed 200 ml bottle of Fleishman's Gin. Young told Reeves that he had purchased the gin in the licensed premises from a black male whose description matched that of Respondent Frank D. Byers which is contained on Respondent's application for license. Respondent Frank Byers denies making the sale. On balance, however, there is little doubt it was Respondent who made the sale, especially in light of the fact that this same licensee was issued a letter of warning by the Division of Alcoholic Beverages and Tobacco in October 1981 for possession on the premises of an alcoholic beverage not permitted to be sold under the license. Young also stated that he purchased a second bottle which he consumed on the premises with another black male. However, this evidence was in the form of Reeves' report of what was told him by Young. As such, it is clearly hearsay and can be used only to corroborate or explain other admissible evidence. Therefore, as to the allegation regarding the consumption of the gin on the premises, since it is the only evidence of that offense, it cannot be used to support a finding of fact on that allegation. It may, however, be used to explain how Young got the bottle with which he was seen by Reeves to come out of the licensed premises. Several days later, on March 30, 1983, Reeves again entered the licensed premises, where he told Respondent Estella Byers he was there to inspect the site. She opened the cooler for him and he inspected the beer inside and the cigarettes. While he was doing that, however, he noticed her take a cloth towel and drape it over something behind the bar. He went over to it, removed the towel, and found that it covered a bottle of Schenley's gin. Mrs. Byers immediately said she thought it was her husband's, Respondent Frank Byers, but another individual present at the time, Sharon Thomas, said she had taken it from her brother, who was drunk, and had put it there. Again, as to Ms. Thomas' comments, they, too, are hearsay and can only serve here to explain or corroborate other admissible evidence. In any case, after Ms. Thomas made her comment, she was immediately contradicted by Respondent Estella Byers, who again indicated she thought the bottle was her husband's. In any case, at the hearing, Respondent Estella Byers contended she did not know it was there. On balance, Mr. Reeves' testimony that she covered it with a towel while he was inspecting and the evidence of the prior warning for an identical offense tend to indicate she did know it was there and that it was unlawful for it to be there. There is, however, no evidence to establish sufficiently the reason for its being there.
The Issue The issue for consideration in this hearing is whether Respondent's beverage license, Series 14BC, No. 39-03729, should be disciplined because of the matters outlined in the Notice to Show Cause filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Division was the state agency responsible for the licensing of establishments for the dispensing and sale of alcoholic beverages and enforcement of the beverage laws of the State of Florida. McKown's, Inc., a corporation whose sole stockholders are Duncan and Gloria McKown, holds 14ABC license number 39-03729, located at The Cabin, an establishment situated at 8205 North Dale Mabry Highway in Tampa. This license is a license to operate a bottle club on the premises, and allows patrons to bring their own bottles into the club to drink from. Patrons may either bring their bottle each time they come, or they may leave it at the club to be used each time they visit. Patrons must drink from their own bottle or as the guest of another bottle holder, but cannot buy alcoholic drinks from the licensed establishment. The establishment may sell only ice, setups and food - no alcohol. Mr. McKown is Secretary-Treasurer of McKown's, Inc., the licensee in issue here. He has been in the restaurant and service business since 1937. He opened a large restaurant and lounge in Dunedin, Florida in the early 1960's, and opened The Cabin approximately fifteen years ago with a county bottle club license. When state licensure became required, approximately three years ago, he secured one of those as well. Mr. McKown claims he was open every day from 2 to 7 AM. His clientele was mostly made up of people in the service industry - people who work at night and get off early in the morning. These are people such as waitresses, cooks, restaurant and bar managers. Many of his patrons work at or manage high quality restaurants, and the interior of The Cabin is decorated with T-shirts from many of them. He believes that as a general rule, his clientele is of good quality and is law abiding. The Cabin is made up of one building and a patio. It has one front door, which is manned by a security guard, and there is a sign posted on the inside of the front door which indicates the facility is a private club, non- members of which must pay a service charge. Though it once was private, it is now open to anyone of legal age. If the door is closed, an individual approaching from the outside can not see the sign. Security is designed to keep out minors and to insure that persons admitted have a bottle with them or already inside. The two Messrs. Bailey are the security guards. They wear uniforms similar to those worn by law enforcement people and carry firearms. McKown claims this i s because a firearm was discharged on the premises some time ago and the guards' firearms and uniforms tend to dissuade drunks. Many companies have bottles for their employees. It is Mr. McKown's policy, which he believes is consistent with state law, that two or more people can come into a bottle club and drink from one bottle. It is also a practice of his to allow people to leave their bottles on the premises for future use. Many of his customers are repeat customers who are recognized by security and other employees. If the patron is known to the security guard, he or she might not be checked. Each entrance requires the payment of a $7.00 service fee which authorizes the patron two setup chips. When the patron comes in with a bottle, the cashier puts the patron's name on it using a role of waterproof tape on which is marked the name in color-coded pen, depending on what month it is. Bottles are discarded after three months, whether empty or not. Once a bottle is brought in and given to the bartender, it is kept on the service island behind the bar. At one time, the licensee maintained a membership list. The practice was abandoned when it was decided to seek patrons from the service industry. The inside of the bar is lighted but dark. Music is provided by a jukebox which plays continuously. If patrons do not put money in, the machine comes on automatically after twelve minutes, and the volume is loud, though Akins did not think so. There are speakers both at the jukebox and in the ceiling. The men's room has one stall and two urinals. Mr. McKown removed the door to the stall to keep illegal activity, such as drug sales or homosexual activity, from going on inside. By removing the door, he can readily check to determine that nothing improper is going on inside the stall. The ladies' room has two stalls with cafe doors. He put that type of door in at the same time he removed the men's stall door for the same reason. Both restrooms are to be checked periodically by the manager, by Mr. McKown or the cashiers, as available. The Cabin is busier on weekends than during the week and the staff is adjusted accordingly. On the weekends, there are two cashiers as opposed to one during the week. By the same token, on the weekend, three bartenders are on duty as opposed to two during the week. A maintenance man is also employed. At all times pertinent to the issues herein, Special Agent Jennifer Akins was a special agent with the Division and had been since December, 1989. She was a certified law enforcement officer and, prior to May, 1994, had been involved in between fifteen and twenty undercover operations, of which at least ten involved narcotics. She was trained in the identification of narcotics and street level narcotics activities by the Drug Enforcement Agency, and has taken other professional courses in the subject. Prior to the institution of this undercover operation, Akins had been in The Cabin four or five times. S/A Murray is also an experienced agent with twenty-five to thirty undercover investigations to her credit. At least half involved narcotics. She, too, had been at The Cabin prior to the onset of this investigation. On January 12, 1994 Akins went to The Cabin where she was stopped outside the door by the security guard, Mr. Bailey. He advised her it was a bottle club and inquired if she had a bottle. When she said she had, he also told her that her name would be placed on it and it would be kept behind the bar and drunk from when she was there. She gave over the bottle of rum she had brought. She was not required to fill out an application form nor to pay a membership fee. Akins went back to The Cabin with S/A Murray at approximately 5:15 AM on May 10, 1994. They were met at the door by Mr. Bailey and paid a $7.00 per person cover charge to Mr. Sparks, an employee, who was stationed inside the door. This cover charge entitled them to two drink chips which they would exchange for setups. Additional chips could be bought at $3.50 each. Once inside, they gave their bottle of rum to Mr. Sparks who, after placing a piece of tape with Murray's name on it on the bottle, gave it to the bartender. Akins asked where the bottle of rum was she had brought in on January 12, 1994, and was told it was gone. Bottles are disposed of after ninety days if not consumed first. Consequently, the only bottle the agents had on May 10, 1994 was the bottle they brought that visit. That night, Akins and Murray sat at the bar and were served one or two drinks each from the bottle they had brought in. Later on that evening, Akins was served a drink made with vodka by Mr. Strauss, a bartender. Akins saw Strauss make the drink and knows he did not use the bottle they brought in. Besides, when she tasted it, she recognized it was vodka, not rum. She paid for the drink with one of the chips she got upon entering. She drank only a small part of the drink in order to comply with Division policy that undercover agents will not drink enough to become impaired. Akins and Murray left The Cabin about 6:50 AM without taking the rum bottle they had brought, but while there, Akins observed a white male she recognized as Victor near the women's restroom talking with a white couple. Victor received money from the male in the couple, counted it, and gave the man something in return. This procedure is consistent with what she had observed in other drug transactions. Later on that evening, she again saw Victor near the men's restroom. Victor approached a black male who, after entering and exiting the restroom, handed Victor a small package and received something in return. While this was going on, both were furtively looking around. Akins didn't see what was transferred. Even later, Akins saw Victor exchange something with a black male near the front door. Again, she could not see what it was. S/A Murray also observed this activity and it appeared to be drug activity to her as well. Akins and Murray went back to The Cabin about 5:00 AM on May 11, 1994. As they approached the door they were met by two employees who let them in, and they paid a white female cashier upon entry. On this occasion they did not have a bottle with them. When asked, they said they had a bottle there from the previous visit and were allowed in. Akins ordered two or three drinks from Mr. Sparks, who was behind the bar that evening. The first drink she had was rum, but she does not know from which bottle it was poured. She later ordered a vodka drink which Sparks poured without asking if she had a vodka bottle there. She paid for the vodka with a chip. Later that evening, Mr. Leal, also an employee of The Cabin, offered her a drink. He had called out that the police were outside and that everyone had to stay inside. He sweetened the call by saying he would buy a drink for everyone. At this time, Akins asked for a Zambuca, which they did not have, and they gave her Amaretto instead. Though she saw Mr. Sparks make the drink, she could not tell if there was a name on the bottle or not. Leal offered Murray a drink as well. All this time, Mr. McKown, whom she knew, was present in the facility, going in and out from the back office talking to people. He had done this the previous night as well. Akins left the premises at 7:00 AM and returned again at 5:00 AM the following day, May 12, 1994, accompanied by S/A Murray. They did not bring a bottle this time because they had not taken their bottle with them the previous night. They went through the usual routine of passing the guard, who asked what bottle they would be drinking from. When they said they had one inside, the guard went to check and thereafter allowed them. After paying the cover charge, they were admitted. Inside, Akins saw two black males and a white male exchanging something outside the men's restroom. They were looking around and speaking quietly, and she did not see what was exchanged. That evening, she spoke with the Bartender, Lee, and with Mr. McKown. She also spoke with a patron, Mr. LaRuso, who approached her and commented that she was either a cop or seeking cocaine. In response, she said she wasn't a cop. The two agents both ordered rum from the bartender who poured the drinks from a bottle with their name on it. The rum ran out while the drinks were being poured, so the bartender finished pouring from another bottle which was not theirs. Mr. McKown was in and out of the back office all during this period and would stop and talk with patrons. He appeared quite normal and was not drinking at the time. They returned on May 17, 1994 at 5:20 AM. Mr. Bailey was the security guard who admitted them. On this occasion they had a bottle of rum with them and paid the cover charge. Their bottle was marked by the bartender and Akins ordered a drink from him which was made from their bottle. Later on she also ordered and was served a vodka drink by the bartender who did not inquire from whose bottle he should pour it. S/A Murray was also served a vodka. Akins paid for the vodka drink with a chip even though neither she nor Murray had ever brought a bottle of vodka to the establishment. That evening, she spoke with Mr. Sparks, Mr. Mille and Mr. McKown. Sparks and Mille were both employees. Sparks said he had been divorced because he used too much cocaine. Mille said he had been arrested for cocaine. These discussions took place at the bar or at the cashier stand and were carried on in a normal tone of voice. The agents went back to The Cabin on May 24, 1994 at 4:45 AM with a confidential informant, (CI). They were met at the door by a white male who allowed them to enter. When they did, they paid the cover charge to Mr. Sparks. They brought a bottle of scotch with them even though they had previously brought in at least two bottles of rum. At that point, Akins did not know if the last rum bottle they had brought on May 17, 1994 was still there, so they brought the scotch to be sure they would be admitted. The bottle of scotch was marked and placed behind the bar by Mr. Sparks. Mr. Strauss and a white female were tending bar. Akins approached Strauss who asked if she wanted what she had just brought in or rum instead. When she replied she preferred rum, Strauss went to look for some in the back. When he came back, he said he could find none, but would give her vodka instead. Akins agreed and Strauss made a vodka drink for her. It was, in fact, vodka, and she paid for it. She also had another vodka drink that evening, made for her by Mr. Strauss, who did not use any of the bottles the agents had brought in. Agent Akins, in a conversation with Mr. Sparks that evening, asked him if he had any more cocaine like that which she had purchased on May 17, 1994. This conversation took place near the juke box which was playing, but not loudly. Their conversation was in a normal tone. Strauss walked away after her question and she went up to the cashier's booth and was talking with some people when Sparks returned. He handed her a small package in front of Mr. Bailey and Agent Murray. It consisted of a small cellophane wrapper containing a white powder for which Sparks would not take any money. Akins put the package in her pocket and it was later analyzed at the Florida Department of Law Enforcement, (FDLE), laboratory and determined to be cocaine. After that purchase was made by Akins, the CI purchased a substance from a lady known as Michelle, who Akins described as an employee of The Cabin. Mr. McKown denies this, however, and it is found that she was not an employee. Prior to the purchase, the CI had informed the agents he thought he could make a purchase and Agent Murray searched him before he approached Michelle. Determining he had no cocaine on his person, he was released to make the buy, which he did, on the premises. Michelle gave him a package of a substance, later determined to be cocaine, for which he paid with $30.00 given him previously by Murray. He then delivered the substance to Murray who in turn gave it to Akins for evaluation. It was later tested and determined to be cocaine. That same evening, Akins also saw three white males in a corner of the bar making what she considered a suspicious transaction. They were looking around and acting furtively. There was a big crowd in the bar that evening - at least 35 people. The lighting was good and Akins had no problem seeing. Mr. McKown was also in and out that evening. The two agents returned to the Cabin on June 27, 1994 at about 3:50 AM. When they arrived, they were met at the door by the security guard who asked them who they were, where they worked, and other similar questions. Akins got the impression that he did not want to let them in even though she had indicated that they had a bottle of scotch inside. While this was going on, Mr. Sparks came out and vouched for them and they were admitted. After paying the cover charge, Akins ordered a scotch. The drink was poured from her bottle by the bartender, Ms. Hart, but she noticed at the time that the bottle was almost empty even though she and Agent Murray had had few drinks from it. Akins paid for the drink with one of her chips. Because Akins did not drink the scotch, she was offered another drink by Ms. Hart and asked for a rum drink. The bottles of rum which she and Murray had brought in on May 10 and 17, 1994, had previously been used up, and she noted that there was no ownership label on the bottle from which her drink, and that for Murray, were poured. In any event, they paid for the drinks and when they tasted them, determined they were made from rum. That same morning, Akins saw a black male enter the bar without paying the cover charge. He bypassed the cashier and went toward the restrooms where he was approached by Mr. Strauss, to whom he passed something and got something in return. At this point, Akins was approximately 12 feet away, and though she could not see what was actually passed, she saw Strauss put what he had received into his pocket. Strauss then went back to the bar and the black male left. Shortly thereafter, Mr. McKown entered the bar. He seemed normal and walked around, talking with his customers. Akins left soon thereafter without taking her bottle of scotch. On July 27, 1994, Akins and Murray arrived at The Cabin at approximately 3:30 AM and were admitted by Mr. Bailey. This time they brought a bottle of rum. The scotch, which they had brought previously, was gone even though neither agent had had more than one or two drinks out of it. At this time, a female bartender asked her what she wanted and Akins ordered a peppermint schnapps. Without any questions regarding whose bottle it should be poured from, the bartender poured the requested drink from a bottle which bore a name that Akins could not see. It was not hers, however. She tasted the drink and found it was, in fact, peppermint schnapps. That same evening, Akins and Murray were approached at the bar by a white female, Ronnie, who asked them to split an 8-ball of cocaine. An 8-ball is one eighth of an ounce. No effort was made by Ronnie to hide her solicitation. In response, Akins said she didn't have any cocaine with her, but if Ronnie could find some, she, Akins, would go in with her. With that, Ronnie spoke with several customers but did not come back that evening. Mr. McKown was present but was not a participant in the conversation. When Akins left the bar that morning, she did not take the bottle of rum she brought in with her. The agents went back to The Cabin on August 9, 1994, at approximately 3:05 AM, and met three men, Beltran, Ramos and Encena, in the parking lot. As the five approached the door, they were met by Bailey and Sparks and were admitted, even though they did not have any alcohol with them. Once inside, Akins ordered from Ms. Hart a tequila drink which was poured from a bottle with no name on it. She had first asked for rum, but all that was available was spiced rum. When she tasted the drink, she found that it was tequila. Later on, she ordered a Kamikaze, which contained vodka, from Ms. Hart. Hart did not ask her whose bottle she should pour it from but poured from a bottle with no name tag on it. The drink was vodka. She paid for both drinks she ordered that evening with chips purchased at the door. During the morning, Akins spoke with Mr. Beltran, one of the men she had come in with, who was a patron at the bar. While they were still outside, however, before entering, Beltran had asked the two agents if they used cocaine. When they replied that they did, he said he would have to go inside to get it. When Akins later spoke with him at the bar, he told her to get her friend and that he had obtained the cocaine. Beltran and Ramos had the two agents follow them outside and to Beltran's car where the substance, later tested and identified as cocaine, was produced by Beltran and Ramos and given to the two agents. After Ramos ingested some of the substance, they went back inside and Akins put the substance she had received into her purse for later testing. After the parties went back inside to the bar, the men were ejected because they annoyed Ms. Hart. Mr. McKown was there at the time. After the men were ejected, Akins and Murray had a discussion with a patron named Guinta who said Akins had white stuff under her nose. Akins wiped her nose and denied the allegation. Guinta then asked Murray and Akins if they had any cocaine. Akins said she did not but would see if she could get some. She spoke with Mr. Sparks who said he had none available. All this was in a regular tone of voice, and all during this conversation, Mr. McKown was within three to five feet of them. Later on, there was a quite loud conversation between Guinta and another individual about cocaine. Afterwards, the parties went outside to Murray's car where Guinta gave them a substance later tested and identified as cocaine. Both agents went back to The Cabin on August 16, 1994 at approximately 3:30 AM. On this visit they had no alcohol with them. Mr. Bailey was on duty as the security guard and Strauss and Hart were the bartenders. Akins ordered a vodka Kamikaze from Hart. Later on, Hart asked her if she wanted another drink. When Akins agreed, Hart offered to make it with tequila instead of vodka. She made the drink from a bottle not marked with an owner's name, and when Akins tasted the drink, she found it was tequila. Murray also had two rum drinks which were poured from a bottle with no name on it. Akins spoke with Charles Bailey that evening at the bar. She asked him for some cocaine, and he said he could give her a "bump", (a small amount of cocaine), but could not sell her any. Akins and Murray went back to The Cabin on August 26, 1994. On that occasion, again, they had no alcohol with them. The bottle of scotch and the rum they had brought on two separate prior occasions was gone. They met three other patrons outside. Mr. Bailey, the security guard, let them in and after paying the cover charge, Akins spoke with Mr. Mille and thanked him for the cocaine she had received previously from Mr. Guinta. At first Mille seemed confused, but when she explained, he seemed to understand, but denied he had any more available. Akins had several drinks that evening. The first was made with tequila which she got from Ms. Hart. Neither Akins nor Murray had ever brought tequila to the bar. The tag on the bottle said "Killian's", but Akins did not know anyone by that name or where the bottle came from. Nonetheless, she paid for the drink, tasted it, and determined it was tequila. She also had a drink made with Amaretto that evening which she bought from Mr. Strauss. In this case, also, she was served a drink made with a beverage she had not brought in. Murray was served a rum drink from a bottle marked "hooters". She did not work for or know anybody from Hooters. Apparently, that same evening, Akins was looking quite tired as she sat at the bar. She was approached by Julio Pabone who said he could get her something that would wake her up. He then spoke with Mr. Leal, after which he came back to Akins and asked for money. She gave him $20.00 to add to what he already had, and he returned to Leal, gave him the money, and received a baggy with white powder in it in return. Returning to Akins, Pabone gave the baggy to her. The substance in the bag was later tested and identified as cocaine. Leal is an employee of the licensee. That same evening, Murray saw two women in the restroom use what appeared to her to be cocaine near the sink. On September 9, 1994, the agents again went to The Cabin and were admitted by Charles Bailey. After paying the cover charge, and while sitting at the bar, Akins saw a patron identified as Manuel pull out a wrapper containing a white substance and give it to another male who gave him money in return for it. At the time of this transaction, Mr. McKown was standing approximately five feet away. Later on, a male identified as Julio approached Akins and said he needed $30.00 for cocaine. She gave him the money and he went into the men's room followed by Leal and another individual. When Julio came out, he gave Akins a package with white powder in it which was subsequently tested and identified as cocaine. Mr. McKown was present in the bar at the time, but Akins cannot say whether he observed this transaction. On the evening of September 30, 1994, Sergeant Woodrow A. Ray, a longtime employee of the Division, was the supervisor of the raid conducted at The Cabin. When he arrived, he entered the establishment to insure that all other agents were in place. Sometime thereafter, Agent Miller, also a long time employee of the Division, arrived to serve an Emergency Order of Suspension on the licensee. Miller contacted Mr. McKown, read the Search Warrant and the Emergency Order of Suspension to him, and advised him of his rights against self-incrimination. While this was being done, Mr. McKown expressed surprise regarding the narcotics allegations but admitted he may have sold some alcohol. He stated this four times in different ways. He stated, "We may have sold some alcohol but no drugs"; "Maybe my people sold liquor, but I don't know about drugs"; "We sell a few drinks to help the guys, but no drugs"; and "If drugs were sold, I never knew it - maybe drinks but no drugs." Agent Miller helped with the ensuing search, in the course of which he went into the office to seize the license. He also searched the adjoining storage area in which he discovered a black bag. He asked McKown if the bag was his, which McKown denied. McKown indicated that only himself, Mr. Leal, and Charles Bailey had access to this room. Miller then went to get Bailey, who had been detained on the patio, advised him of his rights, and asked if the bag was his. Bailey acknowledged it was. Miller took Bailey back inside where he placed him in a chair under guard. Miller had Bailey identify the bag and when he did, Miller asked if there was anything in it he should know about. Bailey thereafter gave his permission to search the bag. Before the bag was opened, however, Miller had it taken outside to be sniffed by the narcotics detection dog on the scene who alerted on it. Miller then opened the bag, and inside, in an ammunition box, found drug paraphernalia and approximately 98.6 grams of a white powder which was subsequently tested and identified as cocaine. On or about February 4, 1993, Gene Leal, who was the manager of The Cabin, cashed a check there for Julio Pabone in the amount of $120.00 which was subsequently dishonored. When contacted about this, Pabone agreed to pay off the check in periodic cash payments, and in fact, did so, making a payment of $20.00 on August 26, 1994. The payment which Leal received on that date was not for cocaine but in repayment of a portion of the dishonored check. Company policy regarding illegal drugs is simple. If seen going on, the activity is to be stopped and the individual expelled from the facility forever. Mr. McKown recalls this as having happened at least six times in the year prior to closing. He claims he has no use for drugs and never has. He has a "no tolerance" policy for any drug activity he knew about, and his employees knew that. This policy is not in writing, however. Mr. McKown has not had any of his employees trained in drug identification, and even though he is aware of the state's responsible vendor program, neither he nor any of his employees have participated in it. Mr. Leal has worked for The Cabin for approximately eight years, as has Mr. Sparks. Both were instructed regarding the company's drug policy. Most of The Cabin employees have been on staff for between eight and fifteen years. Mr. McKown claims he would have periodic meetings with employees to inform them of his policy and to solicit reports of illegal activity. In addition to these instructions, employees are furnished with trespass warning slips which are to be issued when patrons are expelled for drug use. Two of these were introduced into evidence. Byron L. Bailey, one of the security guards, confirms this. Though usually stationed at the front door, he would make between four and five checks per night of the restrooms to be sure they were not being used for drug activity or for drinking. He did not, however, look to see what was going on in the lounge. Kathryn Katz, also formerly an employee of The Cabin, was instructed in the company's policy when hired. Not only was the use or transfer of drugs prohibited but so was the sale of alcohol. She was told that only those individuals who had a bottle with them or already inside could be admitted. It is possible that some people lied about this, but she had to take their word. If they said they had a bottle inside, she would admit them. She also checked the ladies' restroom periodically. The Cabin welcomes law enforcement officers as patrons. When deputies from the sheriff's office periodically come out and park in the lot of the neighboring Steak and Ale, they are always welcome. Approximately a year prior to the hearing, Mr. McKown was reportedly told that a van was in his lot from which drugs were being sold. He claims he called 911 and an arrest was made. However, over the fifteen years he's operated The Cabin, Mr. McKown claims there has never been an arrest made inside the club. Concerning the "admissions" he made to Agent Miller at the time of the service of the warrant and the Order of Suspension, Mr. McKown was reading a copy of the affidavit as Miller was reading it to him. As he read it, he was shocked to discover that his own people, whom he felt were family, were doing such things. He admits that perhaps his employees made a mistake in selling drinks. He does not condone it and he definitely does not condone any sales of illegal drugs. His admissions were not meant to specific dates or incidents but were rhetorical more than actual. He admitted his employees had the opportunity to sell unlawful drinks. He does not believe, in his heart, however, that they made any drug sales. He is wrong. No bottles of alcohol were seized by law enforcement officials at the time of the raid. Approximately two weeks after the closing, Mr. McKown conducted an inventory of the bottles on the premises. At that time, there were approximately one hundred fifty bottles, all of which, he insists, had patrons' names on them. Of that number, thirty to forty were establishment bottles. The balance were owned by individuals. Several prominent restaurant owners and managers who patronize The Cabin have known Mr. McKown for several years. None has ever observed any illegal drug activity inside the establishment and had they done so, would have left and not returned. Mr. Caballero, a former Tampa City Councilman, has patronized The Cabin since it was opened. Because of his public position, he was very sensitive to any possibility of illegal activity in his presence, and though he would be at the club once or twice a month, never saw any such conduct. All of these individuals claim to be friends of Mr. McKown. Dr. Poritz and Mr. Queen, a chiropractor and private investigator, respectively, have also patronized The Cabin periodically for several years. Neither has ever seen any illegal activity in there. Mr. Queen, while a member of the Tampa Police Department's Narcotics Division, would patronize the establishment periodically and was always comfortable there. Had he seen any illegal activity on the premises, he would taken appropriate action as a law enforcement officer and would have reported what he saw. A previous Administrative Complaint was filed against the Respondent in 1993 for violation of liquor sales laws. At that time, the Respondent and the Division entered into a Consent Agreement which called for Respondent to pay a civil penalty of $500.00 plus investigative costs of $14.50, and to provide a letter of corrective action. This letter, dated July 31, 1993, and signed by Mr. McKown and several of his employees, such as Mr. Bailey, Mr. Leal, Mr. Strauss and Ms. Hart, all of whom are referenced in the instant action, indicated the signatories had come up with a good system "to keep people without a bottle from coming in" which should "tighten it up and not break down as it did." From the evidence presented, it appears they were wrong and that their system did not work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's alcoholic beverage license No. 39-3729, Series 14BC, be revoked. RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-5882 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. Accepted and incorporated herein, except that the evidence indicates the January 12, 1994 visit occurred prior to the commencement of the instant investigation. Accepted and incorporated herein. - 9. Accepted and in substance incorporated herein. 10. & 11. Accepted and in substance incorporated herein. 12. - 14. Accepted and in substance incorporated herein. 15. & 16. Accepted and in substance incorporated herein. 17. - 21. Accepted and in substance incorporated herein. 22. - 24. Accepted and in substance incorporated herein. 25. & 26. Accepted and in substance incorporated herein. 27. - 29. Accepted and in substance incorporated herein. 30. & 31. Accepted and in substance incorporated herein. 32. - 34. Accepted and in substance incorporated herein. - 37. Accepted and in substance incorporated herein. Accepted and incorporated herein. & 40. Accepted and incorporated herein. Accepted but not probative of any material issue. Accepted and incorporated herein. Accepted and incorporated herein. & 45. Accepted and incorporated herein. 46. & 47. Accepted. FOR THE RESPONDENT: None submitted. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 J. Thomas Wright, Esquire Suite A 2506 Tampa Bay Boulevard Tampa, Florida 33607 Linda Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue The issue for consideration at the hearing was whether Respondent's alcoholic beverage license issued by the State of Florida should be disciplined because of the misconduct alleged in the various charges listed in the Notice to Show Cause filed in this case.
Findings Of Fact At all times pertinent to the issues herein, Petitioner held Florida 2- COP alcoholic beverage license number 26-2036, for his establishment, known as the Dynasty, located at 140 Soutel Drive, Jacksonville, Florida. This license was for the sale and consumption on premises of alcoholic beverages only. In addition, a license was issued by the City of Jacksonville to the Continental Club, c/o Grady Stroy, to operate a dance hall and night club at the same address. Respondent did not have a restaurant license or a license to operate any type of public food service establishment during the time in question. On February 25, 1983, Respondent entered into an agreement in writing with three other individuals, Grady Stroy, John Gibson, and Bobby Wade, whereby each of these latter three would invest with Respondent for an equal partnership in the Continental Club. Thereafter, in April 1983, Respondent officially changed the name of his club from Dynasty to Continental Club. In reality, all three outside partners, Stroy, Gibson, and Wade, each invested at lest $3,000.00. At no time prior to the incidents involved in this hearing, did Respondent disclose to DABT that those three individuals had an interest in his beverage license nor did he notify Petitioner that the name of the club where his license was being used had been changed from Dynasty to the Continental Club. Sometime after June 1983 and the incidents described herein, Respondent applied for a transfer of his license from himself along to himself and his above-named partners. For reasons not pertinent to this hearing, this application was denied. On June 26, 1983, Deborah Powell, in response to a citizen's complaint that alcoholic beverages were being improperly sold on Sunday, entered the Respondent's establishment in an undercover capacity. She observed a table at the door at which admission charges were being collected, and when she got inside, she saw many people who she thought were underage being served what, to her, appeared to be alcoholic beverages. There is no evidence, however, that anyone under the authorized drinking age was drinking alcoholic beverages. Those she looked for food being served and for some means of food preparation there, she found none in evidence. All she could find was a jar of sausages, a bun warmer, and some potato chips. Section 412.402 of the Ordinance Code of the City of Jacksonville, Florida, in effect on June 26, 1983, a Sunday, permits the sale of alcoholic beverages for consumption on the premises only in motels or hotels having 100 or more guest rooms; properly licensed restaurants; airport lounges; fish camps; and private clubs. Respondent's establishment does not fall within any of the above permitted categories. At approximately 9:30 that same night, other officers of the Sheriff's vice squad accompanied by DABT agents entered Respondent's club. When Officer Hall entered the crowded bar, he had the lights turned up and he and other officers began checking the driver's licenses of the patrons to insure they were of age. To do this, they set up a station at the door and had the patrons come out one by one. A check of the driver's license of each patron revealed 20 who were underage. These individuals' names, addresses, and dates of birth were recorded by Officers Hall and another. The minors in the club at the time, who are listed in the charges pertinent to this hearing are: (1) Loraine Doles DOB-Sep 19, '65 age 17 (2) Frederick A. Hayes DOB-Nov 18, '65 age 17 (3) Terry L. Jones DOB-Mar 18, '65 age 17 (4) Jocelyn F. Prince DOB-Mar 15, '66 age 17 (5) Irene D. Reed DOB-Jul 10, '66 age 16 (6) Yolanda D. Williams DOB-Jul 24, '65 age 17 (7) Arabella Washington DOB-May 25, '67 age 16 (8) Sandra D. Hodges DOB-Nov 9, '65 age 17 (9) Ava M. Gardener DOB-Aug 11, '65 age 16 In sworn written statements made to agent Lachman on July 7 and 8, 1983, in Jacksonville, all admitted to being in Respondent's establishment on June 26, 1983, but all deny purchasing or consuming alcoholic beverages while there. None was asked for identification or proof of age before being admitted. Respondent was present at the club at the time all this took place. In a sworn voluntary written statement to agent Lachman on June 28, 1983, Respondent admitted that at the pertinent time in question he had a partnership with Stroy, Gibson, and Wade; that he had a dance hall license to operate his club issued by the city; that he did not have a restaurant license nor did he have the appropriate food preparation and serving equipment to permit him to lawfully sell alcoholic beverages on Sunday; and, that at the time in question, there were 16 to 20 persons under the age of 18 in the lounge. This statement was objected to at the hearing by Respondent's counsel who contended that because Respondent was not given a proper warning of his rights to counsel and against self incrimination prior to making it, it was not admissible at the hearing. The statement, on its fact, reflects its voluntary nature and Mr. Lachman testified that while he did not fully advise Mr. Cobb of his right to remain silent, he did advise him that he could voluntarily make a statement. Full advice of a nature sufficient to support admission of an inculpatory statement in a criminal trial is not required to render such a statement admissible in an administrative hearing such as this. As an admission against interest, it is an exception to the rule excluding hearsay evidence and is admissible. It is corroborated as to the presence in the club of underage individuals by the written statements of those individuals which though themselves hearsay evidence, are admissible to explain or corroborate other admissible evidence such as here. In any case, Respondent offered no evidence to contradict or rebut any of the evidence offered by the Petitioner.
Recommendation In light of the fact that this series of incidents constitutes the first recorded or reported instance of disciplinary action, severe penalty is not indicated. Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Respondent, Mose Cobb, Jr., be fined $250.00 for each of the twelve violations established, for a total of $3,000.00, and that his 2- COP alcoholic beverage license, number 26-2036, be suspended for six months. DONE AND ENTERED this 13th day of November 1984 in Tallahassee, Florida. ARNOLD H. POLLOCK 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 13th day of November 1984. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Courtney Johnson, Esquire 215 Washington Street Jacksonville, Florida 32202 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco, Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, the Respondent was the holder of a valid alcoholic beverage License No. 58-1090, Series 2APS. Respondent is a corporation which owns and operates several convenience stores in the Orlando, Florida area. On February 19, 1983, David Aaron Morgan purchased twelve cans of Budweiser beer at the Respondent's "Pore Jack's store located at 2233 Goldenrod Road, in Orlando, Florida. The purchase was made from a Mr. Claude P. Gillenwater, a clerk and employee at the store. Mr. Morgan had purchased beer from Mr. Gillenwater on at least three (3) prior occasions. At the time of his first purchase of beer from Gillenwater, David Morgan was required to show identification. He showed Mr. Gillenwater a restricted driver's license on which the year of birth appeared to be 1963. Mr. Morgan's date of birth is July 1, 1965. On February 19, 1983, Mr. Gillenwater did not check Mr. Morgan's identification. Mr. Morgan had never informed Mr. Gillenwater that he was underage. He knew Mr. Gillenwater would not serve him beer if he knew he was underage. The information on the restricted license was unclear because the license had been partially mutilated in the washing machine in the Morgan home. David Morgan is in the eleventh grade at Colonial High School. He is 5'8" tall and weighs approximately 160-170 pounds. He wears a mustache and has for over a year. After purchasing the beer, David Morgan left the store and walked to a car in the parking lot where two friends were waiting in a car. Mr. Morgan was observed leaving the store with the beer by Beverage Officers Homer Kenneth Rigsby and Claude E. Cruz. The beverage officers followed Mr. Morgan and his friends as they drove away from the store and stopped them a short distance away. Mr. Morgan was placed under arrest and taken to his home, where his parents were informed of the purchase of beer. It was then verified by a driver's license produced by Mr. Morgan's mother that he was, in fact, not of legal age to purchase alcoholic beverages. Prior to the February 19, 1983, incident, Mr. Gillenwater had been an employee with Respondent for six (6) years. He worked different shifts on an as need basis and the Respondent had never received any complaints regarding the performance of his duties. At the time of his initial employment, Mr. Gillenwater received training and instruction regarding his duties and specifically his responsibilities in assuring compliance with the beverage laws. After his initial training , Mr. Gillenwater was required to work under the supervision of the manager of the store or an experienced cashier until he became familiar enough with the policies and procedures of the company. All employees, and specifically Mr. Gillenwater, were instructed in checking identifications and in the Respondent's strict policy against sales of alcoholic beverages to minors. Mr. Gillenwater was fired by Respondent as a result of this incident. The store in question had a sign posted informing customers that they must be 19 years of age to purchase alcoholic beverages and that a Florida driver's license would be required as identification. (See Respondent's Exhibit 1.) There was also a sign reflecting the date prior to which a customer had to have been born in order to be able to purchase alcoholic beverages. Respondent's employees were instructed to require a driver's license as identification each time a purchase of alcoholic beverages was made by anyone who appeared under 30 years of age. They were required to do this until they became familiar with the particular individual and recognized him on sight as a person who had previously provided proper identification. There was no evidence that Respondent had had any previous violations at the store involved or at any of its other stores. During most of the hours the store is open, a manager or assistant manager is on duty supervising the cashiers. Respondent had no notice or information that any of its employees were failing to follow its procedures regarding the requirement for proper identification.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed. DONE and ENTERED this 28th day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1983. COPIES FURNISHED: Aldo Icardi, Esquire Post Office Box 879 Winter Park, Florida 32790 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Executive Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to these proceedings, Respondent, doing business as The Knight Out, was the holder of alcoholic beverage license number 72-79, series 1-COP. Prior to the hearing . . . in this cause, Respondent had turned in his license to the Petitioner. To the rear of the licensed premises, Respondent operated a bottle club known as The Knight Club. The Knight Club is attached to and shares restroom facilities with The Knight Out. On March 27, 1975, Respondent was served with a "Notice to show cause why beverage license should not have civil penalty assessed against it or be suspended or revoked" on the grounds that on Sunday, January 26, 1975: his employee, Vicki Lynn Williamson, at approximately 2:00 am., did sell at the licensed premises, an alcoholic beverage, a can of Budweiser beer, to beverage officer L. E. Williams during the time that the sale and consumption of alcoholic beverages is prohibited, in violation of City of Perry Ordinance 394 enacted pursuant to F.S. s. 562.14; at approximately 4:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer Williams in violation of City of Perry Ordinance 394; at approximately 5:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer Williams in violation of City of Perry Ordinance 394; at approximately 6:05 a.m., he refused to admit to the licensed premises beverage officer Jack Garrett, while in the performance of his official duties, contrary to F.S. s. 562.41; and at approximately 6:05 a.m., he had in his possession, custody and control, at the licensed premises a partially full 4/5 quart of Smirnoff Vodka, an alcoholic beverage not authorized to be sold by him, in violation of F.S. s. 562.02. Beverage officer L. E. Williams went to The Knight Out the weekend of January 24, 1975, in order to conduct an undercover investigation of the licensed premises. He observed the Respondent, between 11:30 p.m. and 12:00 a.m. on January 24th, remove four cases of beer from The Knight Out and place them into a small room in The Knight Club portion of the premises. At about 1:00 a.m. on January 25th, Williams paid a $2.00 cover charge, entered The Knight Club and remained there until 6:00 a.m. On Saturday night, January 25th, beverage officer Williams again went to The Knight Out and, at about 11:30 p.m., again observed Respondent moving five cases of beer from The Knight Out to the rear portion, The Knight Club. Williams entered The Knight Club during the early hours of January 26, 1975, carrying a can of beer with him. He left at approximately 2:30 a.m., met with other beverage agents, and returned to The Knight Club at about 3:45 a.m., paying the cover charge of $2.00. At 4:00 a.m. and again at 5:00 a.m. on January 26, 1975, Williams purchased from Respondent Poppell cans of Budweiser beer at seventy-five cents per can. Williams retained control of the two beer cans and at about 6:30 a.m. he tagged them as evidence. They were admitted into evidence at the hearing as Exhibits 4 and 5. At approximately 6:05 a.m. on January 26, 1975, beverage officer Jack Garrett, along with several other law enforcement agents, knocked on the front door of The Knight Club seeking entrance thereto. Respondent told Garrett to get in front of the peephole on the door so that he could see who was there. Garrett, who had known Respondent for some fifteen years, testified that he showed his identification card to Respondent through the peephole, whereupon Respondent replied that he would not let him in. Beverage officer T. A. Hicks, present with Garrett at the time, confirmed these events. Respondent and two other witnesses present at the scene testified that Respondent asked the persons at the front door to identify themselves, but that no response was received. Shortly thereafter, Officer Garrett, along with other law enforcement officers, went around to the other side of The Knight Club and entered, without knocking, the ladies rest room which led to the inside of The Knight Club. Once inside, they met Respondent leaving a small room with a handful of liquor bottles. One such bottle was seized - - a partially filled bottle of Smirnoff Vodka - - and was received into evidence at the hearing as Exhibit 6. Shirrell Woodalf testified that she had come to The Knight Out on the morning in question with another couple. When the other couple left, they gave her their bottle of Smirnoff Vodka. She then gave the bottle to Respondent to keep for her in his office. Woodalf identified Exhibit 6 as being the same bottle as that left with her and given to Respondent. Four witnesses who often frequented The Knight Club testified that patrons of the Club always brought their own beer or other alcoholic beverages into the Club. Respondent would cool their beer for them and keep their bottles in his office if they so desired. Respondent sometimes charged a small fee for cooling the beer and he sold setups for mixed drinks. These four witnesses never saw Respondent sell either beer or other alcoholic beverages in The Knight Club.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that: Paragraphs 1 and 5 of the notice to show cause be dismissed; Respondent be found guilty of violating F.S. ss. 562.14 and 562.41, as set forth in paragraphs 2, 3 and 4 of the notice to show cause; and Respondent's alcoholic beverage license be revoked. Respectfully submitted and entered 26th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Charles Nuzum Director Division of Beverage 725 South Bronough Street Tallahassee, Florida Charles Tunnicliff, Esquire Department of Business Regulation 725 South Bronough Street, Room 210 Johns Building Tallahassee, Florida 32304 Conrad C. Bishop, Jr., Esquire Weed & Bishop P.O. Box 1090 Perry, Florida 32347
The Issue The issue in this case is whether Petitioner's application for a special restaurant license (4COP-SRX) can be deemed incomplete for failure to obtain zoning approval from the local government.
Findings Of Fact Petitioner is a restaurant duly-licensed by the State of Florida to serve food and certain alcoholic beverages. It currently holds a 2COP restaurant license, which allows it to sell beer and wine along with its food products. Petitioner has held the 2COP license since opening in calendar year 2002. Petitioner derives 51 percent of its revenue from the sale of food and nonalcoholic beverages. It is in an area of Orange County which is zoned for commercial property and has the appropriate land use code for a restaurant chain. Petitioner's facility is presently located within 500 feet of a local school. The school was built a year or two after Petitioner began operation of its restaurant. In order for Petitioner to obtain an upgraded license so that it can serve other alcoholic beverages (i.e., liquor) it must submit an application to Respondent. Petitioner duly- submitted such an application on February 5, 2007. The application sought to upgrade Petitioner's license to a 4COP-SRX license. The 4COP license would allow for sale of all alcoholic beverages. Section 5 of the Application addresses zoning for the restaurant. Section 5 includes the following: Are there outside areas which are contiguous to the premises which are to be part of the premises sought to be licensed? [Petitioner answered, Yes.] If this application is for issuance of an alcoholic beverage license where zoning approval is required, the zoning authority must complete "A" and "B". If zoning is not required, the applicant must complete section "B". The location complies with zoning requirements for the sale of alcoholic beverages or wholesale tobacco products pursuant to this application for a Series 4COP SRX license. Signed Title Date Is the location within limits of an "Incorporated City or Town"? Yes No If yes, enter the name of the city or town: Petitioner filled in the address portion of Section 5, but did not have a zoning authority complete Section A, nor did Petitioner complete Section B. Respondent deemed the Application incomplete due to Petitioner's failure to complete Section 5. On July 25, 2007, a Final Warning Notice was sent to Petitioner, allowing Petitioner ten additional days to submit zoning approval for the Application. When no zoning approval was returned within the prescribed period, Respondent issued its Intent to Deny License. Petitioner did make an inquiry to the local zoning authority concerning its application to increase the level of its license. However, by letter dated February 22, 2007, the Orange County Zoning Division notified Petitioner as follows: We have received your request for an increase in series to the alcoholic beverage license at Hooters Lake Underhill, 11425 Underhill Road, Orlando. On February 22, 2007 we conducted a distance check to see if the proposed location satisfied the separation requirements contained in the Orange County Code. The results of our inspection reveal that the proposed location is 407 ft. from Legacy Middle School at 11398 Lake Underhill Road. Since this location cannot satisfy the 1000 ft. separation requirement from the nearest school, this office cannot issue zoning approval for the increase in series.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, denying the application filed by Petitioner. DONE AND ENTERED this 5th day of May, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2008.
Findings Of Fact Respondent, Seminole Park and Fairgrounds, Inc., holds alcoholic beverage license number 69-255, Series 12, RT, which licensed premises is located at Seminole Greyhound Park, a greyhound racing facility in Casselberry, Florida. The officers of this corporation who are accused of filing false personal questionnaires with Petitioner are Paul Dervaes, Jack Demetree, William Demetree and Ernest Drosdick. Paul Dervaes and William Demetree also filed a certificate of incumbency and stock ownership which is also alleged to have been false. The principal issue concerns the involvement of John Fountain in the affairs of Seminole Park and Fairgrounds, Inc. Fountain is a convicted felon who was adjudicated guilty of bookmaking in the Jacksonville Federal District Court in October, 1972. The principal parties to this matter, Paul Dervaes, Jack and William Demetree and Ernest Drosdick knew from the outset that John Fountain was a convicted felon ineligible for licensing in this state under either the pari- mutuel or beverage laws. John Fountain conceived the idea of acquiring Seminole Park and Fairgrounds, Inc., a money-losing harness racing facility, and obtaining necessary legislation to convert the facility to greyhound racing. Fountain first brought this idea to his long-term friends and business associates, Jack and William Demetree, in the mid to late 1970's. Fountain also initiated the involvement of another longtime friend, Paul Dervaes, as President of Seminole Park and Fairgrounds, Inc. When the enterprise was short of cash in late 1978 and early 1979, Fountain made successive loans of $152,000 and $169,499.82 to the corporation through Paul Dervaes for use in converting and operating Seminole Park. When the necessary legislation was passed to convert to a greyhound facility, John Fountain, for several months, worked long hours without any salary as head of the physical conversion project for the Demetrees. Fountain originated the Super 8 betting feature at Seminole Park, one of the cornerstones of the track's promotion and publicity endeavors. Fountain also, after the conversion was complete and the facility was opened for business, authorized complimentary meals and drinks at the licensed premises at Seminole Park and authorized petty cash disbursements for a wedding present for a newspaper reporter and the distribution of gasoline without charge from Seminole Greyhound Park's fuel tanks. On March 31, 1980, Paul Dervaes, who at the time held 53 percent of the outstanding stock of Seminole Greyhound Park, sent a memo to William Demetree and sought to extricate himself from a managerial position at the track on the basis that the Demetrees appeared not to be satisfied with his managerial abilities. In this memo, Dervaes identified himself as a minority stockholder of the enterprise, despite his then ownership of a majority of 53 percent of the shares of stock. Respondent has sought to explain such incongruity by candidly admitting that Dervaes was fronting for John Fountain as to 43 shares or 43 percent of the stock in Seminole Park. As this time, Ernest Drosdick, who had for years handled all legal affairs for Seminole Park as well as for William Demetree, advised Dervaes and Jack and William Demetree that the loans to Seminole from John Fountain through Paul Dervaes had to be repaid so that the involvement of Fountain could be terminated. Drosdick's advice was predicated on Fountain's felony conviction and he noted that Fountain's continued involvement in such manner would be violative of the pari-mutuel and beverage licensing laws. The corporation thereupon obtained $321,499.82 in early April of 1980, such sum being the total of the principal but not interest due on the $152,000 and $169.499.82 loans made from John Fountain to Seminole Park through Paul Dervaes. Drosdick's advice was not consistently applied, however, with regard to recalling the loans from John Fountain. The $321,499.82 was paid by check to Paul Dervaes on April 1, 1980, which Dervaes deposited in his bank account. William Demetree then asked Dervaes if $160,000 of the funds just paid him could be borrowed back from Fountain despite Drosdick's advice against such loans. The re-loan was agreeable with Fountain and on April 9, 1980, Dervaes wrote a check in the amount of $160,000 back to Seminole Park and Fairgrounds, and on April 21, repaid the remaining $161,499.82 to Fountain. The $160,000 loan was reflected in an April 9, 1980, note signed by William Demetree as Chairman of Seminole Park and Fairgrounds, Inc. It was also acknowledged by William Demetree that he knew the money was coming from John Fountain. It is this loan, which was repaid as to principal only in November of 1980, that was not reflected on the personal questionnaires of each of the principal parties. At the time the April 9, 1980, $160,000 loan was made by Fountain to Seminole Park through Dervaes, all of the principal parties, Paul Dervaes, Jack and William Demetree and Ernest Drosdick, knew that John Fountain was a convicted felon and knew that his involvement through loans would be impermissible under pari-mutuel and beverage licensing statutes. It was established that the $160,000 loan was not listed on the personal questionnaires filled out in July of 1980, by each of the aforementioned individuals despite the clearly expressed directive of such questionnaire forms, which states: List the total amount and sources of money you personally are investing in the proposed operation. Also, list any persons, corporations, partnerships, banks, and mortgage companies who have or will invest or lend money in the proposed operation. Immediately prior to the applicant's signature line on the personal questionnaire form is the following statement: I swear or affirm under penalty of perjury as provided for in Florida Statute 837.06 that the foregoing information is true to the best of my knowledge, and that no other person, persons, firm or corporation, except as indicated herein, has an interest in the alcoholic beverage license for which these statements are made. Immediately under the signature line is a boxed-in passage entitled "WARNING" with the word "warning" capitalized and underlined and the following: Read carefully, this instrument is a sworn document. False answers could result in criminal prosecution, subject to fine and/or imprisonment. The principal parties seek to excuse their failure to include the Fountain loan on their personal questionnaires by claiming that Drosdick, who is now deceased, was unaware of the $160,000 loan, that he filled out the questionnaires for them and that they merely signed them under oath and attested to their veracity without reading them. This testimony is not credible in view of the material, self-serving omission made on these questionnaires. Therefore, Respondent's agents, who are experienced businessmen, must be held responsible for their sworn statements. The principals have also sought to excuse their conduct on the basis that any matters which transpired between John Fountain and Paul Dervaes in connection with the loan were personal matters between Dervaes and Fountain and thus immaterial to the corporation. However, this theory avoids recognizing that personal questionnaires were submitted by four individuals and not by the corporate entity. It was established that each of the four individuals had knowledge of the $160,000 loan in question and thus were required to list such loan on their personal questionnaires. It was Fountain who conceived the idea of conversion, who supplied the capital necessary to effectuate the conversion, who without salary headed the physical conversion of the facility and who after the opening of the track authorized the expenditure of funds and the giving of certain gratuities at the track. Fountain was clearly and intimately involved with the overall success of the track. Indeed, the original loans in the amount of $152,000 and $169,499.82 from Fountain called for the payment of 10 percent interest and the $160,000 loan called for the payment of 15 percent interest, none of which has ever been paid. Such interest, as of September 30, 1982, had accrued in the amount of $15;173. Dervaes acknowledged that such interest was but a "paper transaction" in that the principal parties and Fountain all knew and agreed that Fountain would not be paid until such time as the track paid Dervaes the interest. Consequently, Fountain has held with the full knowledge of all the principal parties, an impermissible pecuniary interest in the licensed facility which continues to the present time. The Certificate of Incumbency and Declaration of Stock Ownership submitted as part of the beverage license application process was likewise incorrect. It reflected Jack and William Demetree as 50 percent each owners of Seminole Park and Fairgrounds, Inc. when, in fact, the separate corporate entity Seminole Greyhound Park, was the sole stockholder of this corporation. Such document was signed by William Demetree and certified as being true and correct by Paul Dervaes under oath. William Demetree and Paul Dervaes attempt to place the blame on Drosdick for improperly preparing the document. However, they signed this document and cannot avoid responsibility for their sworn statements.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's alcoholic beverage license no. 69-255. DONE and ENTERED this 23rd day of November, 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 23rd day of November, 1982. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Steven A. Werber, Esquire 2000 Independent Square Jacksonville, Florida 32202 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether the Petitioners are entitled to a transfer of the quota license they attempted to apply for in their initial application. Whether the Petitioners are entitled to an alcoholic beverage license for a restaurant based upon their second application. Whether the Petitioners are entitled to an alcoholic beverage license based upon their third application in spite of the county's refusal to approve the zoning of the proposed location until a pending declaratory judgment before the circuit court is resolved. Whether the Respondent is estopped to deny any of the applications because of the representations made by a field agent for the agency that to his knowledge, there were no problems at the proposed location.
Findings Of Fact The joint stipulation of facts entered into by the parties on December 21, 1988, are adopted as the findings of fact in this proceeding. A copy of the stipulation is attached and made part of this Recommended Order.
