The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Suamy Corporation, held license number 23-21872, series 2APS, authorizing it to operate a beer and wine package store (the sale of beer and wine for off-premises consumption) at the premises of a business known as Bristol Sundries, located at 2127 Brickell Avenue, Miami, Florida (hereinafter "the licensed premises").2 Milagros Suarez was the sole shareholder, as well as the sole corporate officer, of the Respondent corporation. On February 11, 1997, Leonard DelMonte, a special agent with the Division of Alcoholic Beverages and Tobacco, undertook an inspection of the licensed premises. Upon entry into the premises, the agent observed shelves on his left that contained bottles of liquor on display, and behind the counter he observed more shelving, which contained more bottles of liquor on display, together with bottles of wine. A cash register was observed on the counter, and an employee was present to attend the needs of customers. The agent inspected, inventoried, and seized 19 bottles of distilled spirits (Petitioner's Exhibits 2-1 through 2-19) on the licensed premises. (Petitioner's Exhibit 1). The bottles were all sealed; labeled as distilled spirits, such as rum, scotch, gin, and vodka; and carried the name, trademark, or insignia of commonly known manufacturers of distilled spirits, such as Johnny Walker, Cuervo, Pinch, and Bombay. The bottles also had affixed to them price stickers, of the same type affixed to the wine that was offered for sale, and contained prices that were consistent with the retail price of the product. Given the facts, it is apparent that Respondent was offering the distilled spirits for sale on the licensed premises.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the charge set forth in the Administrative Action and imposing a civil penalty of $1,000 for such violation, subject to Respondent's option to substitute a period of suspension in lieu of all or a portion of the civil penalty. DONE AND ENTERED this 27th day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1998.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: At all times material to the charges, Ronald Wayne Diamond and Susan Joyce Saiia owned and operated a partnership trading as Susan's Las Olas Seafood Market at 1404 E. Las Olas Boulevard, Fort Lauderdale, Florida ("the licensed premises") On the licensed premises, they sold alcoholic beverages under the authority of alcoholic beverage license No. 16-3029, Series 2-APS. On January 17 or 18, 1982,and on January 19, 1982, Broward County Sheriff's Department Detective Fernandez entered the licensed premises in an undercover capacity and negotiated with Respondent Ronald Diamond for the sale and delivery of cocaine and cannabis. Respondent Susan Saiia was present and aware of these negotiations, although she did not actively participate in them. On one of these occasions, she warned Respondent Diamond to be careful, that she had seen someone in the back alley who looked like he was wearing a recording device. On January 20, 1982, Respondent Diamond was arrested on charges of unlawful trafficking in cocaine and possessing cannabis in violation of Sections 893.135(1)(b) and 893.13(1)(e), Florida Statutes. He was taken to the licensed premises where a search warrant was executed and two ounces of marijuana were found in an office file cabinet. (Petitioner's Exhibit No. 2) On May 6, 1982, the Circuit Court of the Seventeenth Judicial Circuit, adjudging Respondent Diamond guilty of these felonies, sentenced him to fifteen years in prison and fined him $250,000 for trafficking in cocaine. He was sentenced to an additional five years for the possession of cannabis. (Petitioner's Exhibit No. 3)
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondents' alcoholic beverage license No. 16-3029, Series 2-APS, be revoked for multiple violations of the Beverage Law. DONE and ORDERED this 12th day of July, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1983. COPIES FURNISHED: John A. Hoggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Maurice Graham, Esquire Suite 2 2161 E. Commercial Blvd. Ft. Lauderdale, Florida 33308 Howard M. Rasmussen 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 By Notice to Show Cause filed December 19, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the alcoholic beverage license number 60-0883 issued to James R. Rogers, trading as Ray's Tavern. As grounds therefor it is alleged that Rogers, in order to secure a license to sell alcoholic beverages, made false written statements to the agents of Respondent in violation of 537.06 and 561.29 F.S. One witness was called by Petitioner and four exhibits were admitted into evidence.
Findings Of Fact On December 21, 1977, notice of the hearing scheduled to commence on January 12, 1978 at 1457 N. Military Trail, West Palm Beach, Florida was served on Respondent by a beverage agent of Petitioner. (Exhibit 1) In answer to question 13 on the application for Transfer of Alcoholic Beverage License, which asked "Has a license covering the place described in this application or any other place in which any of' the above named persons were at the time interested ever been revoked by the Director?" Respondent answered "No". (Exhibit 2). By Order of the Director of the Division of Beverages dated September 30, 1955 (Exhibit 3) the alcoholic beverage license issued to James R. Rogers, Curley's Tavern, aka Ray's Tavern was revoked for maintaining gambling paraphernalia and permitting gambling on the licensed premises.
The Issue Whether the Petitioner, Moishes Steakhouse & Seafood, Inc., timely submitted an application to record a lien for license number 23-02731 4COP.
Findings Of Fact On or about March 3, 1999, Armar Inc., Arnaldo Bou, individually, and Martha Pinango, individually, as debtors, and the Petitioner, by Eugenio D'Arpino, as president of the company, the secured party, executed a security agreement (chattel mortgage) related to beverage license 23-02731, series 4COP. Such security agreement recognized a priority lien for the Petitioner, Moishes Steakhouse & Seafood, Inc., and included a promissory note executed by the debtors. The promissory note, dated March 3, 1999 (presumably executed on or about that date), provided: THIS NOTE IS NOTE ASSIGNABLE AND NON- ASSUMABLE WITHOUT THE EXPRESS WRITTEN APPROVAL OF THE SECURED PARTY. THIS NOTE IS SECURED BY A SECURITY AGREEMENT (CHATTEL MORTGAGE) AND UCC-1 WHICH SHALL CREATE A PRIORITY LIEN (1ST PLACE LIEN) ON STATE OF FLORIDA ALCOHOLIC BEVERAGE LICENSE NO: 23- 01686, series 4 COP quota. The security agreement and promissory note were not provided to the Department within 90 days of March 3, 1999. Apparently, the fact that the note and security agreement make reference to different alcoholic beverage license numbers is not an issue. Neither party has raised that issue. The Petitioner forwarded the note and security agreement to the Department for recordation on or about September 21, 1999. At that time the Department received an application to record a lien for license no. 23-02731, series 4COP. On October 11, 1999, the Department sent Petitioner a letter declining the application because it was not made within 90 days after the creation of the lien. The Department requested a newly executed security agreement so that the dates would show the request for recording within 90 days of the application. It is the Department's position that the lien application should have been submitted within 90 days of its creation in order to comply with the mandatory guidelines of the statute. For purposes of this case, the Department argued that the "creation of the lien" was on or about March 3, 1999, or, at the latest, March 15, 1999 (a date noted in the escrow agreement). The Petitioner timely sought an administrative review of the Department's decision. It is the Petitioner's position that the lien did not "break escrow" until August of 1999, and that, as a matter of law, that is the point in time from which the 90 day period should run. From the Petitioner's perspective, the "creation of the lien" as used by the statute dates from when the transaction broke escrow. All parties agree that the statute does not specifically address escrow transactions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order approving the Petitioner's application to record a lien on the subject alcoholic beverage license. DONE AND ENTERED this 1st day of March, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 1st day of March, 2002. COPIES FURNISHED: Sherrie Barnes, Esquire Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Major Jorge R. Herrera Department of Business and Professional Regulation 8685 Northwest 53rd Terrace Augusta Building, Suite 100 Miami, Florida 33166 Louis J. Terminello, Esquire Terminello & Terminello, P. A. 2700 Southwest 37th Avenue Miami, Florida 33133-2728 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The first paragraph of charges in the Amended Notice to Show Cause reads as follows: That you, P & D SOUTH OF MARTIN COUNTY, INC. d/b/a STAGE EAST, licensed under the beverage laws of the State of Florida as a licensed vendor holding a SRX series license, did in the year of 1982, violate the beverage laws, to wit: you failed to maintain as 51 percent of your gross revenue the sale of food and non- alcoholic beverages, based upon the average monthly gross revenue for the period 12/81 to 12/82, contrary to F.S. 561.20(2)(a)(3), Rules 7A-3.14 and 7A-3.15(3)(b), Florida Administrative Code. In the Joint Pre-Hearing Stipulation and again at the commencement of the formal hearing in this cause, Respondent admitted the violation alleged in that paragraph. Also at the commencement of the formal hearing, Petitioner dismissed with prejudice the charges contained within paragraphs numbered too and three of the Amended Notice to Show Cause. The case therefore proceeded forward for the presentation of evidence in aggravation or in mitigation of any penalty to be imposed against Respondent. Respondent corporation, P & D South of Martin County, Inc., does business as Stage East and is the holder of alcoholic beverage license No. 53- 352, Series 6-COP SRX. Stage East opened for business on November 25, 1981, at 200 South Dixie Highway, Stuart, Martin County, Florida. When Richard Pouser, Respondent's president, applied for an alcoholic beverage license, he spoke with Beverage Officer Richard White. White explained to Pouser that an SRX license is a special license, carrying with it a requirement that the restaurant derive at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages. Pouser advised White that Respondent intended to obtain an unrestricted quota license as soon as one became available in Martin County. When Respondent prepared to open Stage East, it leased a building containing two separate portions of space. It was Respondent's intention from the initial creation of its new business to open the first section of the restaurant as an area also geared to entertaining persons under the age of 50. In that section, Respondent has electronic games, televisions, pool tables, a dance and bandstand area, and two bars. There are approximately 25 tables in the "back bar" area and approximately 40 tables in the front or bandstand area. Full food service is available in both areas. In this section, Respondent also provides either recorded or live musical entertainment every day, ranging from local musical talent to "mini-concerts" by groups or individuals with national or international recognition. The second section of Stage East, which comprises an additional 4,000 square feet, is to be a family-type food service area, analogous to a "Bennigan's" style of restaurant. Only the first section of Stage East was opened on November 25, 1981, and Respondent continued its preparations to open the second section also. Respondent filed its plans for the proposed second section and application for a building permit and zoning approval with the City of Stuart on January 4, 1982. The City denied Respondent's application the same day, citing as its reason "inadequate parking." After Respondent expended substantial monies for legal fees and engineering studies, zoning approval was finally obtained in June 1983. The evidence is uncontroverted that the City had no legal basis for its denial of Respondent's application; rather, certain members of the City Commission personally did not approve of an establishment like Stage East. In February 1982, Beverage Officer White received an anonymous complaint that Respondent was not meeting its 51 percent requirement. He visited the premises and, upon examining the cash register receipts and food tickets, ascertained that only approximately 25 to 30 percent of Respondent's business had been from the sale of food and nonalcoholic beverages. On February 9, 1982, White served on Pouser an Official Notice with a compliance deadline of August 9, 1982. On September 15, 1982, White returned to Stage East to make a compliance inspection. After speaking with Pouser and ascertaining that the 51 percent requirement was still not being met, White issued a second Official Notice. Although that Notice contained a compliance deadline of January 1, 1983, White returned to Stage East on December 23, 1982, met with Pouser, and reviewed Respondent's records. A cursory examination revealed that Respondent still had not met the 51 percent requirement. Between the time that White first advised Pouser of the 51 percent requirement and the date of the formal hearing in this cause, Respondent attempted to obtain a quota license, which carries no requirements as to food consumption on the premises. For a year, Respondent advertised daily in the Stuart newspaper that it wished to purchase a quota license. Respondent contacted Beverage Officer White, liquor distributors, and owners of quota licenses in Martin County to ascertain if they had a quota license for sale or if they knew someone who did. During this time, the quota license for Harper's became available. The license holder asked $250,000 cash, Respondent offered $200,000 cash, and Walgreen's purchased Harper's license for $215,000. By the time of the formal hearing in this cause, Respondent had entered into favorable negotiations for the SR license at Boston's. Although Respondent had inquired whether Petitioner would permit the transfer of Boston's license to Respondent, Petitioner had not answered Respondent's inquiry at the time this cause was heard. In addition to taking steps to expand its restaurant area and to obtain an alternate license throughout the time period in question, Respondent did all it could to encourage its customers to purchase food so that Respondent could meet the 51 percent requirement to which its license was subject. Respondent hired an experienced chef and additional kitchen staff in order to offer a larger variety of food at lower prices. Respondent changed its menu to add "quicker" foods and advertised its menu in the Stuart News. Respondent opened for lunch and advertised its daily luncheon specials; advertised its food service when advertising its new "happy hours" and those prices; opened for breakfast after 2:00 a.m.; advertised its dinner programs; hired male dancers to perform during certain hours on Monday nights "for ladies only;" offered discount Prices for women on Tuesdays for "ladies night;" and attempted to attract an older crowd on Sundays by providing a buffet and a Dixieland band or "the big band sound." Respondent increased its radio advertising to six to eight ads a week, sometimes advertising as a restaurant with a nightclub and sometimes only as a restaurant. Although Respondent had on its premises during 1982 sufficient foods, utensils, and personnel to serve everything on its menus, Respondent started a nightly buffet which was either self-service or could be served by a waitress. The cost of the buffet depended upon the day of the week, with ladies paying a small price on Tuesdays, ladies' night, for example. Sometimes the cost of the buffet (which is collected as the customer enters the premises) included the customer's alcoholic beverages on an "all you care to consume" basis, and sometimes the customer paid for his alcoholic beverages in addition to paying for the buffet. On the evening before the formal hearing, the buffet cost $10, and the price of drinks was not included. Since Respondent opened Stage East, it has made continuing good faith efforts to encourage the purchase of food at its premises, to add the "Bennigan's" family-style restaurant, and to obtain an alternate license without the 51 percent requirement. During the three-month period immediately before the formal hearing, Respondent approached, just exceeded, and then just missed the 51-percent mark.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the charge in paragraph numbered one of the Amended Notice to Show Cause, dismissing with prejudice the charges in paragraphs numbered two and three of the Amended Notice to Show Cause, and imposing a civil penalty in the amount of $1,000 to be paid by Respondent within 30 days of the entry of the Final Order in this cause. DONE and RECOMMENDED this 17th day of February, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 17th day of February, 1984. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles L. Curtis, Esquire 1177 Northeast Third Avenue Fort Lauderdale, Florida 33316 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Recommendation Based upon Petitioner's failure to appear, it is RECOMMENDED THAT: A default be entered against Petitioner and a final order be issued denying Petitioner's application for a beverage license. RECOMMENDED this 18th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1980. COPIES FURNISHED: Mr. Melvin Stewart c/o Mel's Beer & Wine Lounge 301 N.E. 62nd Street Miami, Florida Dennis E. LaRosa, Esquire Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32301 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32301
Findings Of Fact Respondent, C.S.G., Inc., d/b/a The Arena, holds alcoholic beverage license no. 62-427, Series 4-COP. The licensed premises is located at 4469 49th Street North, St. Petersburg, Florida. During the period relevant to this proceeding, Sam I. Ferrara, Jr. was the sole officer and stockholder of C.S.G, Inc. On November 19, 1980, prior to Ferrara's purchase of the C.S.G., Inc., Eugene O'Steen submitted a license application for transfer of alcoholic beverage license no. 62-427, from Edward Mickler, Jr. to C.S.G., Inc., showing O'Steen as the sole corporate officer and stockholder of C.S.G., Inc., and Ferrara as the manager. O'Steen's license application was not accepted as the application end accompanying documentation were incomplete. The initial application included a lease for the licensed premises signed by O'Steen over the whited-out signature of Sam I. Ferrara, Jr., dated October 9, 1980. O'Steen had negotiated the purchase of beverage license no. 62-427 from Edward Mickler, Jr., for $78,500. O'Steen intended to fund the purchase with a $2,000 down payment from personal assets and a $76,500 loan from the Central Bank of Tampa. However, O'Steen voluntarily withdrew his application on November 26, 1980, due to the possible filing of criminal charges which could have resulted in denial of the application. On the same day that O'Steen withdrew his application, Ferrara initiated a new application for transfer of alcoholic beverage license no. 62- 427. Ferrara's application was also in the name of C.S.G., Inc. showing Ferrara as the sole corporate officer and stockholder of this corporation. On December 2, 1980, Ferrara advised Petitioner's Beverage Officer Maggio that he, Ferrara, had negotiated the same contract to purchase beverage license no. 62-427, as had O'Steen. Said beverage license was to he purchased by Ferrara (C.S.G., Inc.) for a total of $78,500. A deposit of $2,000 had been made and a balance of $76,500 was due at closing on purchase of this license. Ferrara further advised that he (C.S.G., Inc.) was obtaining an $80,000 loan from the Central Dank of Tampa to finance the purchase of the beverage license and that he (C.S.G., Inc.) was obtaining a $20,000 loan from Attorney Matthews to reimburse O'Steen for remodeling expenses incurred on the licensed premises. On December 3, 1980, Ferrara submitted a personal questionnaire (PX-10) listing finances concerning the license application as follows: Central Bank of Tampa $80,000 Eugene O'Steen - [Crossed through] $20,000 John Matthews - $20,000 On December 3, 1980, Ferrara provided Beverage Officer Maggie with a completed license application (PX-9) together with a letter of commitment for a loan to C.S.G., Inc. in the amount of $80,000 signed by Orlando Garcia, President of the Central Bank of Tampa. This letter was dated December 3, 1980 (PX-1) On December 3, 1980, Ferrara was questioned by Beverage Officer Maggie as to the completeness and accuracy of his license application (PX-9) and his personal questionnaire (PX-10) Ferrara advised Maggie on that date that both referenced documents were complete and accurate. Additionally, on the same date, Maggie reviewed with Ferrara his answers to all questions and both of the referenced documents. Ferrara's answers contained in the referenced documents were sworn and made under oath. Section 7 of Ferrara's license application (PX-9) reads: List below the names of all those connected, directly or indirectly, in the business for which the license is sought: (This includes partner(s), spouse, director(s), stockholder(s), chief executive, limited and general partner(s), corporation(s), or any form of entity which is connected with the business. Name office (if corporation) or other title if any. Nature of interest including stock percentage. In response to this question, on his license application (PX-9), Ferrara identified himself as President, Secretary, Treasurer and 100 percent stockholder. No other person or entity was listed as interested directly or indirectly. Subsequent to December 3, 1980, Beverage Officer Maggio transmitted Ferrara's license application (Px-9) and related documentation to Petitioner's Tallahassee office with a recommendation that the application be approved. Thereafter, on December 5, 1980, C.S.G., Inc. was issued a temporary beverage license. The permanent beverage license, number 62-427, Series 4-COP, was issued on January 7, 1981. On December 1, 1980, prior to the letter of commitment from the Central Bank of Tampa (PX-1), and Ferrara's submission of his license application (PX-9) and personal questionnaire (PX-10), and also prior to Ferrara's oral statements to Beverage Officer Maggio, the Central Bank of Tampa issued a loan closing statement (PX-8) concerning C.S.G., Inc.'s (Ferrara) $80,000 loan. This loan closing statement (PX-8) reflected an $80,000 loan to C.S.G., Inc. and P & O, Inc. jointly, not solely to C.S.G., Inc. as indicated in the loan commitment letter (PX-1), Ferrara's oral statement, and Ferrara's license application (PX-9). Said loan closing statement reflected collateral for this loan which included beverage license no. 62-427, Series 4-COP (C.S.G., Inc. license) and an alcoholic beverage license held by P & O, Inc. On December 5, 1980, a bank note, number 55-25549 (PX-6) was executed in the amount of $80,000 with C.S.G., Inc. and P & O, Inc. as co-makers. This note was signed by Ferrara on behalf of C.S.G., Inc., and by Charles and Olga Pitisci on behalf of P & O, Inc. Said note (PX-6) corresponds to the loan closing statement dated December 1,1980 (PX-8). Pursuant and subsequent to the execution of the bank note discussed above (PX-6), a cashier's check, number 312768 (Px-3), was drawn on the Central Bank of Tampa and issued December 5, 1980 to C.S.G., Inc. and P & O, Inc. jointly, in the amount of $70,278.25. This cashier's check represented the proceeds from the loan generated on bank note 55-25549 (PX-6). These proceeds were deposited in the Central Bank of Tampa to the account of C.S.G., Inc. On December 5, 1980, a separate cashier's check (PX-2) number 312502 was issued by the Central Bank of Tampa payable to Edward Mickler, Jr in the amount of 576,500. Funds for this check came from C.S.G., Inc.'s account. The purpose of this check (PX-2) was to pay the balance of the purchase price due on beverage license no. 62-427. On December 5, 1980, another cashier's check (PX-4) number 312503 was issued by the Central Bank of Tampa in the amount of 52,775.25, to C.S.G., Inc. This check represented the balance of the loan proceeds from the Central Bank to P & O, Inc. and C.S.G., Inc. jointly (See PX-2 and PX-6). Collateral pledged as security for said loan (PX-6) includes real property of P & O, Inc., a beverage license of P & O, Inc., the beverage license of C.S.G, Inc., together with certain equipment of C.S.G., Inc. P & O, Inc. and C.S.G., Inc. executed a mortgage to the Central Bank of Tampa to secure said lean (PX-6) and the Central Bank of Tampa, effective December 5, 1980, insured said lean in the amount of 575,000 as evidenced by a fund mortgage form (Px-5) Neither C.S.G., Inc., the Central Bank of Tampa nor Ferrara in his oral statements to Petitioner's representative, disclosed the fact that P & O, Inc. was a co-maker of the $50,000 loan (PX-6) from the Central Bank of Tampa, or that P & O, Inc. had pledged real property and a beverage license as collateral for said loan. At all times pertinent to this procedure, P & O, Inc. was owned by Charles Pitisci, Olga Pitisci and Carlten O'Steen. At all times pertinent Charles Pitisci, Olga Pitisci and Eugene O'Steen were corporate officers of P & O, Inc. The testimony of Ferrara and Eugene O'Steen established that a close personal relationship existed between Ferrara and the owners of P & O, Inc. Ferrara's testimony established that the Central Hank of Tampa demanded additional security, and that P & O, Inc. principals cosigned the note as a personal favor to Ferrara and not to obtain an interest in the licensed business. This evidence was not rebutted by Petitioner. Ferrara did not believe he was under any duty to disclose the role of the Pitiscis and P & O, Inc. with respect to the Central Bank of Tampa loan since he did not believe they had acquired any direct or indirect interest in C.S.G., Inc. or beverage license no. 62-427.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint/Notice to Show Cause. DONE and ENTERED this 28th day of June, 1982 at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1982. COPIES FURNISHED: John A. Beggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Paul Antineri, Jr., Esquire 601 E. Twiggs Street Tampa, Florida 33602 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue is whether Respondent's Policy Statement, that the inclusion of revoked quota licenses in Section 561.19, Florida Statutes, double-random selection by public drawing, constitutes an unpromulgated rule contrary to Sections 120.54 and 120.56(4), Florida Statutes.
Findings Of Fact Based upon observation of the witness and his demeanor while testifying, the documentary materials received in evidence, stipulations by the parties, and the entire record complied herein, the following relevant and material facts are found. The Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state Agency responsible for implementation of Chapter 561, Florida Statutes, Beverage Law Administration. In July 2001, Petitioner (BHI) made applications to the Agency for four quota alcoholic beverage licenses made available by revocation. Among those licenses, BHI made application for license number 47-00190, a quota license, initially issued before 1980 pursuant to the Leon County Special Act governing quota licenses; Chapters 63-1561 and 63-1976, Laws of Florida. License number 47-00190, a quota license revoked by the Agency approximately two years before BHI's application in 2001, became and remained available for reissuance at the time BHI filed its petition. The Agency denied BHI's application for revoked quota license no. 47-00190 in Leon County. A quota license is an alcoholic beverage license issued in a county whose population count, at the time of issuance, supports its issuance. In 1979, the Florida Legislature determined each county's population count to be 2,500 persons per quota license. In 2000, the Legislature determined each county's population count to be 7,500 persons per quota license. However, Section 561.19, Florida Statutes (2000), does not specifically direct the Agency to conduct a county's population re-count of 7,500 persons before the reissuance of a revoked quota license issued under the prior population count of 2,500 persons per county. The double-random selection drawing conducted by the Agency pursuant to Section 561.19, Florida Statutes, on October 31, 2001, included an alcoholic beverage license for use in Leon County that became available by virtue of the revocation of that alcoholic beverage license bearing license number 47-00190, which was issued before the change in the population count and the random selection method now contained in Section 561.19, Florida Statutes. The Agency based its denial of Leon County quota license 47-00190 in its Policy Statement of general applicability. The injury to BHI related to the denial of that quota license is within the zone of interest to be regulated and protected under Chapter 561, Florida Statutes, and Petitioner has standing to initiate and prosecute this proceeding. As alluded to before, BHI also made applications in July 2001 for revoked quota license number 26-00921 and revoked quota license number 26-00208 in Duval County; application for revoked quota license number 63-00525 in Polk County; and application for revoked quota license number 45-00073 in Lake County. Each revoked quota license was issued pursuant to the special act applicable to each county and was issued before the 1980 Amendment to Section 561.19, Florida Statutes. The Agency argues in its Proposed Final Order that Duval County (2) and Lake County (1) have exceeded their respective quota license limits, but does not address the quota license limits of the Polk County and the Leon County revoked quota licenses. It is assumed, based upon the fact the revoked quota licenses in those two counties were made available for reissuance, those quota licenses did not exceed the current quota limit of the 7,500 population count. The quota licenses above were revoked several years ago by the Agency and became available for reissuance. Regarding each application filed, BHI received a notice from the Agency stating that: There is no license currently available for issuance in a (specific) County. When licenses become available by reason of increase in population or revocation of a quota license, these licenses are re-issued pursuant to a double-random selection by public drawing. (Emphasis added) The parties entered into a stipulation concerning . . . the Division's policy statement that revoked alcoholic beverage licenses are to be included in drawings conducted pursuant to Florida Statutes, 561.19. . . . BHI challenged the Agency's Policy Statement of general applicability that revoked quota alcoholic beverage licenses are required to be included in a random drawing pursuant to Section 561.19, Florida Statutes. BHI argues that Section 561.19, Florida Statutes, authorizes double-random selection drawings for issuance of alcoholic beverage licenses in only two situations: (a) where licenses become available by an increase in population of a county; or (b) where a dry county, by special act, becomes a wet county. The Agency has embarked on a stated policy, not adopted as a rule, in which, contrary to Section 561.19, Florida Statutes, it includes all revoked quota licenses in the double- random selection drawing. The Agency has thus instituted an unwritten rule policy contrary to Sections 120.54 and 120.56(4), Florida Statutes. The policy statement was applied to BHI's applications for revoked licenses by letters from the Agency denying BHI's four applications for revoked quota licenses stating revoked quota licenses are to be placed in a random selection drawing pursuant to Subsection 561.19(2), Florida Statutes. The Agency, in its pubic legal notice, concerning a double-random selection drawing, set forth the total number of licenses available in each county that are to be awarded by the random selection drawing. Several of the counties listed in the legal notice have an asterisk next to the total licenses available for that county. The explanation by the Agency for the public notice asterisk is to identify those revoked quota licenses included in the total number of available licenses. The following findings of fact are based, in part, on the stipulation of the parties concerning this dispute. The Agency does not have an adopted rule that addresses inclusion of all revoked license in double-random selection drawings. The Agency agreed that the above Policy Statement had not been adopted as a rule by appropriate rulemaking procedures as defined in Sections 120.54 and 120.56(4), Florida Statutes. The Agency takes the position that Section 561.19, Florida Statutes, authorizes double-random selection by public drawing to be used when a quota license becomes available by an increase of 7,500 in a county's population. The Agency's position is that Section 561.02, Florida Statutes, grants the Division Director discretionary authority to enforce the Alcoholic Beverage Law, Chapter 561, Florida Statutes, in accordance with the Legislative intent. Accordingly, Section 561.19, Florida Statutes, is the grant of authority for the Agency's Policy Statement herein challenged. Additionally, the Legislative intent of Section 561.19, Florida Statutes, argues the Agency, is twofold: (1) it removed sole discretion from the Division Director to issue quota licenses, and (2) created a system to ensure licenses issued after 1980 would be in a fair and equitable manner to all applicants. The answer to the threshold question, of whether the Agency's Policy Statement at issue is intended to have the effect of law, is in the affirmative. Prior to the 1980 Amendment to Section 561.19, Florida Statutes, revoked quota license were reissued in accordance with Section 561.02, Florida Statutes (1979). An application was made for a specific revoked license; the application was reviewed and investigated, and if found in compliance with statutory requirements by the Agency, the Director issued the quota license to the approved applicant. The parties agreed that in the event that two applications were made for one license, the first application filed and approved would be granted the license.
The Issue Whether Respondent's plea of nolo contendere to the crime of possession of a controlled substance (for which adjudication was withheld) is sufficient to support the imposition of discipline with regard to his alcoholic beverage license.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to issue beverage licenses pursuant to Chapter 561, Florida Statutes, and applicable rules. Prior to September 11, 2000, Respondent, doing business as Smiley's, was the owner and holder of a beverage license, DBPR License No. 74-05336, Series 2-COP, which permits him to sell beer and wine for consumption on premises. On October 9, 1998, Respondent was charged by information with sale and delivery of cocaine. He was acquitted of that charge on May 12, 2000. Subsequently in a separate incident, Respondent was charged with possession of cocaine and on September 11, 2000, pleaded no contest to that charge. Pursuant to Respondent's timely request for formal proceedings, Petitioner's counsel initiated discovery in the course of this administrative proceeding through a Request for Admissions to which Respondent failed to respond. Respondent failed to provide a satisfactory explanation for this circumstance and, upon motion of Petitioner, the Request for Admissions was deemed admitted. Those admissions establish that Respondent entered a no contest plea on September 11, 2000, to the charge of possession of cocaine and that the plea bargain negotiated at that time also included two days' incarceration. Additionally, the admissions establish that Respondent is aware that possession of cocaine is a crime punishable by imprisonment for a term of five years. Respondent's own testimony is uncorroborated by other direct evidence and fails to establish that he possesses good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's alcoholic beverage license, DBPR License No. 74-05336, Series 2-COP. DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 30th day of July, 2001. COPIES FURNISHED: Paul Kwilecki, Jr., Esquire 629 North Peninsula Drive Daytona Beach, Florida 32118 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Lt. John P. Szabo Department of Business and Professional Regulation 400 West Robinson Street, Room 709 Orlando, Florida 32801 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue presented is whether Respondent failed to maintain separate records of purchases and gross sales of all alcoholic and non-alcoholic beverages and food in violation of Section 561.20, Florida Statutes, and Florida Administrative Code Rule 61A-3.0141, and if so, what penalty, if any, is appropriate. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect of the date of this Recommended Order).
Findings Of Fact Respondent holds license number 69-02639, series 4COP SRX. An SRX license authorizes Respondent to sell alcoholic beverages on the premises of Jon's Bar & Grill, located at 2485 N. Highway 17-92, Lake Monroe, Florida ("the licensed premises"). Persons issued "SRX" licenses must meet certain statutory requirements to ensure that they are operating bona fide restaurants. Among other requirements, Respondent must maintain separate records of all purchases and gross sales of all alcoholic and non-alcoholic beverages and food. Respondent's license application specifically informed Respondent that he must meet the specific requirements of this type of license. On March 17, 1997, Petitioner's Special Agent Richard Hurlburt met with Respondent for the purpose of conducting an SRX inspection to determine Respondent's compliance with SRX license requirements. An SRX inspection includes an audit of the licensee's records to determine the percentage of gross revenue derived from the sale of food and non-alcoholic beverages. Respondent was unable to produce the records he is statutorily required to maintain. Agent Hurlburt issued a notice to produce records relating to the operation of the restaurant. On August 12, 1997, Petitioner issued a notice of administrative complaint against Respondent for failure to maintain separate records of all purchases and gross sales for non-alcoholic and alcoholic beverages and food in violation of Section 561.20. Respondent has not produced the records he is statutorily required to maintain.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a $1,000 civil penalty against Respondent and revoking alcoholic beverage license no. 69-02639, series 4COP SRX, without prejudice to obtain any other type license, but with prejudice to obtain another SRX special license for 5 years from date of the Final Order. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon county, Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 George Lewis, Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe street Tallahassee, Florida 32399 Jon Gustafson, pro se 956 Lake Ashby Road New Smyrna, Florida 32069
