Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: On October 24, 1985, Petitioner filed an initial application with Respondent to obtain an alcoholic beverage license. The alcoholic beverage license was to be used in the operation of a small restaurant which Petitioner owned, known as El Conquistador Restaurant, in Homestead, Florida. The Petitioner is the sole owner of El Conquistador Restaurant. The application listed the Respondent, Maria Andarcio as the sole proprietor and only person having a financial interest in the business known as El Conquistador Restaurant. During the processing of the application, Mr. Ross, the investigator assigned to Petitioner's case, noticed that the application appeared to have several discrepancies. In particular, Mr. Ross was concerned because the financial information submitted with the initial application listed Julio Andarcio, Respondent's estranged husband, as the sole depositor of the expense account but he was not listed as having any financial interest in the business. Secondly, Petitioner failed to provide sufficient information regarding her employment history. Lastly, a lease which was part of the initial application, identified a potential undisclosed interest, Jose Osario, as a co- leasee. On November 15, 1985, Mr. Ross, routinely mailed a "14 day letter" to Petitioner requesting additional information. In particular, the "14 day letter" directed the Petitioner to provide additional information within 14 days from the date of receipt of the letter. The additional information requested was as follows: List occupation for the past 5 years on personal questionaire. Julio Andarcio must be fingerprinted and submit personal questionaire." The Petitioner failed to provide the information requested in the 14 day letter. Thereafter, Respondent was unable to fully investigate the license application and denied the Petitioner's license on January 8, 1986. For some reason, the Petitioner did not receive the 14 day letter which Respondent sent by regular mail. Therefore, she did not respond within the requested time period. The Petitioner was born in Cuba and speaks very little English. The language barrier contributed to the apparent discrepancies in Petitioner's initial application. Mr. Ross opined that based on all of the information that he had received up to the time of the hearing, the Petitioner would have been granted a beverage license had she only responded to the "14 day letter."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered allowing the Petitioner 20 days from the date thereof in which to provide Respondent with the information requested in the initial "14 day letter," thereby making her application complete. The Respondent shall thereafter review and process the application in the standard and routine manner. DONE and ORDERED this 24th day of October, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 24th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1176 Rulings on Proposed Findings of Fact Submitted by the Petitioner (None Submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. Partially adopted in Finding of Fact. Matters not contained therein are rejected as unnecessary. Adopted in Finding of Fact 5. Rejected as a recitation of testimony and/or argument. Partially adopted in Finding of Fact. Matters no contained therein are rejected as subordinate. COPIES FURNISHED: Armando Gutierrez, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1077 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927
Findings Of Fact 10. The Division hereby adopts and incorporates by reference the Finding of Fact in foto, as set forth in the Recommended Order.
Conclusions The Director, Division of Alcoholic Beverages and Tobacco, Department of Business and Professional Regulation (hereinafter’Division’), after consideration of the complete record of this case on file with the Division, hereby enters this Final Order.
Findings Of Fact Respondent is the holder of Beverage License No. 26-751 permitting the sale of alcoholic beverages from her store at 1155 Jessie Street, Jacksonville, Florida. This business is a convenience store known as Agel Grocery. Respondent's husband has been co-owner of this business since the outset, and participates in its operation and management. When the Morenes applied for an alcoholic beverage license in June, 1980, they believed Frank Morene was ineligible and intentionally omitted his name from the application.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is That Respondent be found guilty of filing an incorrect application in violation of Subsection 561.17(1), Florida Statutes (1979). It is further RECOMMENDED: That Respondent's Alcoholic Beverage License No. 26-751 be suspended until Respondent files and secures approval of a correct application or demonstrates that any direct or indirect interest of Frank Morene in the licensed business has been removed. DONE and ENTERED this 7th of August, 1981, 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 7th day of August, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mrs. Saundra Morene c/o Agel Grocery 1155 Jessie Street Jacksonville, Florida 32206
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
The Issue The issues in these cases are whether Respondent, Club Manhattan Bar and Grill, LLC, d/b/a Club Manhattan Bar and Grill (Respondent), committed the acts alleged in the administrative complaints dated September 13, 2010, and December 1, 2010, and, if so, what disciplinary action, if any, should be taken against Respondent.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating persons holding alcoholic beverage licenses. § 561.02, Fla. Stat. Respondent is licensed under the Florida beverage law by the Department. Respondent holds a 4COP/SRX special restaurant license issued by the Department with Alcoholic Beverage License No. 68-04347. Ms. Stokes is the licensee of record for Respondent. Consequently, Respondent is subject to the Department's regulatory jurisdiction. Respondent's series 4COP/SRX is a special restaurant license that permits it to sell beer, wine, and liquor for consumption on the licensed premises. Additionally, the licensee must satisfy seating and record-keeping requirements and must comply with 51 percent of its gross sales being food and non- alcoholic beverages. See § 561.20(2)(a)4., Fla. Stat. Respondent's restaurant is located in Sarasota County, Florida, and, pursuant to the 4COP/SRX license, must have seating and capability to serve 150 customers at any one time. On August 5, 2010, Special Agent Flynn conducted an inspection of Respondent's business premises. He conducted the inspection based on complaints made to the Department that Respondent was operating as an after-hours bar, rather than a restaurant. At this initial inspection, which occurred at 2:30 p.m. on August 5, 2010, Special Agent Flynn found the restaurant did not have any customers or menus. Further, he noticed that the premises had seating for only 92 people and a large dance floor. Further, he observed that the walls had signs advertising drink specials and late-night parties. Special Agent Flynn met Ms. Stokes, Respondent's manager and holder of the license, and informed her that the beverage license required that Respondent be able to serve 150 customers at one time. Also, Special Agent Flynn requested the required business records concerning the purchase of alcoholic beverage invoices from the distributors for a 60-day proceeding period. Ms. Stokes did not have the requested records on the premises. On August 19, 2010, Special Agent Flynn sent Ms. Stokes a written request, requesting alcoholic purchase invoices for a 60-day period before August 19, 2010. The request allowed Ms. Stokes 14 days to compile the records and to provide the records to the Department. The record here showed by clear and convincing evidence that Respondent did not produce records for the audit period. On September 8, 2010, at approximately 3:00 p.m., Special Agent Flynn returned to Respondent's premises. Again, he found that Respondent did not have the required seating number and ability to serve 150 customers at one time. Special Agent Flynn offered credible testimony that, during the September 8, 2010, inspection, he found Respondent had only 106 available seats. Further, consistent with his inspection on August 5, 2010, Special Agent Flynn observed facts showing that Respondent was a late-night bar, as opposed to a restaurant. The evidence showed that on September 8, 2010, Special Agent Flynn observed that Respondent did not have any customers, menus, and very little food in its small kitchen. Special Agent Flynn, however, did observe that Respondent continued to have its large dance floor, disc jockey booth, advertised drink specials, and posters advertising late-night parties. Clearly, Respondent was being operated as a bar, rather than a restaurant as required by its license. At the September 8, 2010, inspection, Special Agent Flynn again requested Respondent's business records that he had previously requested for the 60-day time period before August 19, 2010. Ms. Stokes provided a few invoices for purchases of food and non-alcoholic beverages. These invoices were dated after the August 19, 2010, date that Special Agent Flynn had requested and did not cover the requested 60 days prior to the August 19, 2010, request. These records included food and beverage purchases by Respondent from retailers, but did not contain any records concerning the points of sale at the restaurant. Ms. Nadeau, an auditor for the Department, offered credible testimony concerning the Department's request for business records from Respondent for the audit period of April 1, 2010, through July 31, 2010. On August 27, 2010, Ms. Nadeau set up an audit request for the period of April 1, 2010, through July 31, 2010, based on information provided by Special Agent Flynn. The Department provided Ms. Stokes with an audit engagement letter that requested business records. Ms. Nadeau testified that on September 10, 2010, she was contacted by Ms. Stokes. Ms. Stokes informed Ms. Nadeau that Ms. Stokes had become the owner of the restaurant in June 2010 and that she did not have the required records. Ms. Nadeau informed Ms. Stokes to provide all the records requested in the audit engagement letter that Ms. Stokes had and to try to obtain the prior records from the previous managing member of Respondent. On September 22, 2010, Ms. Stokes mailed to the Department records she claimed met the audit period. The records consisted of guest checks for July and August 2010, which only showed food purchases and no alcoholic beverage purchases. Further, Ms. Nadeau found that the records were not reliable, because the records contained numerous personal items not related to the restaurant, such as baby wipes, cotton swabs, and boxer shorts. Consequently, the record clearly and convincingly shows that Respondent failed to provide the required business records for the audit period of April 1, 2010, through July 31, 2010. Next, based on Respondent's failure to provide any reliable records, the Department was unable to conduct an audit of the business. Records provided by Respondent indicated that the only sales that occurred on the premises were for food. However, the testimony showed that Respondent's business included the sale of alcohol and marketed the sale of alcoholic beverages for late-night parties. Mr. Torres, the senior auditor for the Department, credibly testified that he conducted an independent review of Ms. Nadeau's initial audit findings. Mr. Torres, who has been employed with the Department for 27 years, reviewed the records provided by Respondent. He credibly testified that Respondent's guest checks were very questionable because they showed all food sales, but no alcohol, which was not consistent with Special Agent Flynn's observations. The evidence further showed that Ms. Stokes became the managing member of Respondent in June 2010. Ms. Stokes provided the Department with a change of corporate officers and named herself as registered agent, rather than apply for a new license. This distinction would later become important because, as explained by Ms. Nadeau, in the Department's eyes, there is a continuation of ownership. Under a continuation of ownership, Ms. Stokes was required to have business records for the time period before she became the managing member of Respondent. Ms. Stokes credibly testified that she did not have any records before June 20, 2010; thus, Respondent was unable to provide records for the audit period. Ms. Stokes candidly admitted that her restaurant had been struggling financially, which is why she had worked to catering special events to draw foot traffic.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking Respondent's alcoholic beverage license and finding that Respondent violated: 1. Section 561.20(2)(a)4., within section 561.29(1)(a), on September 8, 2010, by failing to provide the required service area, seating, and equipment to serve 150 persons full-course meals at tables at one time as required by its license; 2. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), the audit period of April 1, 2010, through July 31, 2010, by not providing the requested business records; and 3. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), on September 8, 2010, by not providing the requested business records. It is further RECOMMENDED that the final order find that the Department did not prove by clear and convincing evidence that Respondent violated section 561.20(2)(a)4., within section 561.29(1)(a). DONE AND ENTERED this 23rd day of September, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2011.
The Issue Whether Respondent violated Sections 562.11(1)(a), and 561.29(1)(a) (sale of an alcoholic beverage to an underage person) and/or 561.29(1)(a) and 561.17(3) (failure to notify Petitioner licensing agency of the transfer of ten percent or more of any financial interest, change of executive officers or directors or a divestiture or resignation of such interest or position), Florida Statutes, as charged in the Administrative Complaint dated May 4, 2008, and if so, what discipline should be imposed.
Findings Of Fact At all times material, Respondent was licensed under the Florida Beverage Law, by Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is subject to Petitioner’s regulatory jurisdiction, having been issued License Number 72-00497, Series 2-APS, to sell beer and wine in sealed containers for consumption off of the licensed premises only. There is no evidence that Respondent business had ever been previously cited for violation of its license or that Petitioner was investigating the premises on the basis of a complaint or allegation at the time this case arose. Charging Paragraph One 4/ Petitioner’s Special Agent and a Lieutenant, who at all times material was working as Petitioner's Special Agent, addressed “a directed enforcement issue,” the belief that because energy drinks containing alcohol had newly come on the market, there would be sales of them to underage persons. On April 25, 2008, the agents conducted undercover operations at what their paperwork shows to be a minimum of 13 alcoholic beverage retail stores in Perry, Florida, and one store in Steinhatchee, Florida, between 4:35 p.m. and 8:22 p.m. The agents testified that their operation on that date also involved even more stores in several counties. The agents’ paperwork shows they arrived at Respondent’s store at 5:11 p.m. on April 25, 2008, and that they followed standard Agency procedures. On April 25, 2008, the Agency employed M.C. as “Investigative Aide AL0015.” M.C. had worked for the Agency as an undercover operative for almost five years and previously had worked with the aforementioned two agents. On that date, M.C., a female, was 19 years old. On April 25, 2008, the agents gave M.C. a $5.00 bill with which to make “the buy.” She took no other money into Respondent’s store with her. Petitioner’s two agents testified that at 5:11 p.m., while sitting in their car parked in front of Respondent’s store, they witnessed M.C. purchase a “Sparks” from Respondent Meah. Between them, the officers’ testimony included details such as seeing that one other person was in the store when M.C. entered the store; seeing M.C. remove a Sparks can from the cooler; seeing that no conversation took place between M.C. and Respondent Meah; and seeing that no identification was requested by Mr. Meah. M.C. did not relate that anyone else was in the store at the time of her purchase. The agents provided no information as to how they saw so much detail through their car's windshield and the window of the store. Clearly, they could not have heard any conversation at that distance and under those conditions. There also is no evidence of backlighting from inside the store by which the agents could even see Huranur Rashid Meah and M.C. in silhouette so as to observe them talking or not talking. For these reasons, the only competent evidence of what occurred between M.C. and Mr. Meah is the testimony of M.C. and Mr. Meah. M.C. testified that at approximately 5:12 p.m. on April 25, 2008, M.C. presented a can of “Sparks” alcoholic beverage and a package of Orbits gum to Respondent Meah at the cash register; that he did not require identification/proof of age from her; that he did not ask her how old she was; and that he rang up her purchase, giving her $1.92 in change, the can of “Sparks,” and the gum. Huranur Rashid Meah testified that he sold only one can of Sparks at approximately 5:27 p.m. on April 25, 2008, to his long-time customer, Stephanie Lee Wood, née Johnson. At hearing, Ms. Wood presented herself as an adult, without stating her age for the record. She testified that for a significant period of time, she was in Respondent's store every day about the same time and at that time "mostly" bought a Sparks Malt Beverage from Respondent Meah. Ms. Wood is Caucasian, and M.C. is a light-skinned Negro, but they have very similar builds or silhouettes, and could be mistaken for being of a similar age. Upon observation of M.C. at hearing, the undersigned was unable to discern her age, and without testimony would not have guessed she was merely 21 years old on the date of hearing. Her photograph in evidence, taken on April 25, 2008, does not look like an under-age person, or even very much as M.C. looked when she testified at age 21. When M.C. returned from Respondent’s store to the car containing the two agents on April 25, 2009, the agents verified that she had only $1.92 on her; that she had with her a can of “Sparks” and a package of Orbits gum; and that $1.92 was an appropriate remainder for the purchase of a “Sparks” 16 oz. can and a package of Orbits gum, plus tax. Then all three of Petitioner’s operatives filled-out their on-scene paperwork. Before leaving the scene on April 25, 2008, the agents issued to Respondent Meah an Arrest/Notice to Appear/Probable Cause Affidavit. Respondent Meah signed on the bottom of this item, acknowledging receipt thereof. After repeating similar procedures multiple times throughout the remainder of the evening, Petitioner’s agents checked the can of “Sparks” they had bagged at the scene into their headquarters' secure evidence lock-up, and prepared additional paperwork at headquarters. Sparks Malt Beverage apparently contains seven percent alcohol. From differences in the paperwork filled out at the scene, the paperwork from the evidence lock-up, and the oral testimony at hearing, one could guess that the 16-oz. can allegedly purchased by the underage operative from Respondent Meah contained “Sparks Plus Lemonade,” “Sparks Malt Beverage,” or “Sparks” as an energy drink. Ultimately, the State Attorney for Taylor County, in and for the Third Judicial Circuit, issued a “nolle prosequi,” for the associated criminal case, brought against Respondent Meah,5/ and destroyed the “Sparks” can involved. No physical evidence of the can allegedly purchased by M.C. was available to be admitted in evidence during this administrative case’s disputed-fact hearing. Respondent Meah submitted in evidence an automatically printed cash register tape from his store’s single cash register. He claimed this item showed the transaction he had with Ms. Wood on April 25, 2008. The register tape shows that only one sale for the combined amount of $1.69 (the cost of a can of Sparks Malt Beverage), and for $1.19, (the cost of a package of Orbits gum), was rung up together on that date. It further shows that after tax, $1.92 was given in change to the customer. Respondent's cash register tape also shows a sales time of 5:27 p.m. on April 25, 2008. This is the only similar transaction on that date on the whole cash register receipt. Several other transactions on the tape show beer sales at $1.69 each, but no other transactions match the exact amount(s) testified-to by Meah, Wood, and Petitioner's three operatives. Based on the evidence as a whole, there is no persuasive reason to rely on the time posted on this cash register receipt as being reliable; but likewise, there is no clear evidence that the time on the receipt is not reliable. The receipt could be read to show Sparks and Orbits were sold to M.C. or that Ms. Wood purchased the Sparks and something else at that time. It could also be interpreted in a variety of other ways, but clearly, it shows only one sale matching all witnesses' testimony occurred on that date. Charging Paragraph Two On August 8, 2006, Respondent had completed and submitted to Petitioner his application for a beverage license. Section six, on page seven of that application, shows “Abdul Latif Meah” (Respondent Hurunar Rashid Meah’s father) as a 50 percent owner of the corporate Respondent (licensed premises), and further shows Respondent “Harunur Rashid Meah” as a 50 percent owner. It also shows the father as corporate president and Respondent Meah as corporate vice-president. At no time has anyone notified Petitioner that any change in the stock or ownership interest in the licensed facilities has taken place, or that the corporate officers have changed. However, as of November 26, 2007, Respondent Harunur Rashid Meah filed with the Secretary of State, Division of Corporations, papers for “reinstatement” of the Respondent Corporation, and these papers show Harunur Rashid Meah, as the sole owner/president, treasurer/director of Respondent corporation. Respondent Meah's explanation of the foregoing is that: He “missed a payment.” He never dissolved the original corporation, but he needed to get the corporation reinstated or reactivated, which he did as of November 26, 2007, listing only himself on the papers required by the Division of Corporations. Respondent Meah also testified that he had signed all the papers for obtaining the alcoholic beverage license from Petitioner without understanding or reading them, and without appreciating the oath thereon that he signed, promising to tell the truth on those papers, and further promising to comply with the Florida Beverage Law. Among other requirements, the Florida Beverage Law requires notice to Petitioner of the transfer of ten percent or more of any financial interest, change of executive officers or directors, or divestiture or resignation of such interest or position. (See Conclusions of Law.) Petitioner Agency asserts that the contradiction between the August 8, 2006, disclosure of interested parties on Section Six of the Beverage Law license application and the interested parties listed on the November 26, 2007, Division of Corporations documents violates Section 561.17(3), Florida Statutes, because Mr. Meah did not notify the Petitioner Agency as he was required to do, and that the present situation is especially serious because Petitioner had previously warned Respondent of the violation. Special Agent Lastinger’s testimony is credible that he discovered the November 26, 2007, incorporation papers when he was preparing to draft the criminal and administrative charges after the April 25, 2008, undercover operation. However, his testimony that finding those papers after April 25, 2008, reminded him that he had warned Respondent Meah two years before April 25, 2008 (that is, sometime between April and December 2006) that Respondent could be prosecuted for ownership problems, is not credible or persuasive testimony, since the change of ownership, if any, can only be traced to November 2007.6/
Recommendation Upon 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 that (1) Dismisses Charging Paragraph One, sale of alcoholic beverage to an underage person; (2) Finds Respondent guilty of Charging Paragraph Two, failure to notify Petitioner of the transfer of ten percent or more of any financial interest, or change of executive officers or directors, and fines him $500.00, therefor; and (3) Requires Respondent to notify Petitioner of the current ownership interests and names of executive officers within 30 days of the final order. DONE AND ENTERED this 14th day of September, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2009.
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 Respondent committed the violations alleged in the Administrative Action dated August 11, 2000, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with enforcing Florida's Beverage Law, and, specifically, with regulating the sale of alcoholic beverages. Sections 561.02 and 561.11(1), Florida Statutes. At all times material to this proceeding, Coluccis Attic, Inc., held alcoholic beverage license number 60-11724, Series 4 COP SRX, a special restaurant license which authorized the sale of alcoholic beverages on the premises of the restaurant of the same name located at 600 North Congress Avenue, Delray Beach, Florida. On July 18, 2000, an inspector employed by the Department conducted a routine investigation of the restaurant. As part of the investigation, the investigator was provided a copy of the restaurant's sales report for the period from May 17, 2000, through August 6, 2000. The investigator calculated the percentages of gross revenue from the sale of food and of alcohol sales with respect to total gross sales, and the calculations showed that food sales were 31.5 percent of total gross sales.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order, Finding that Coluccis Attic, Inc., violated Section 561.20(2)(a)4., Florida Statutes (2000); Imposing an administrative fine in the amount of $1,000.00 against Coluccis Attic, Inc.; and Revoking the special restaurant license of Coluccis Attic, Inc., without prejudice to apply for any other type of alcoholic beverage license but with prejudice to apply for a special restaurant license for a period of five years. DONE AND ENTERED this 21st day of August, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2001.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's license number 42-55 be revoked. Respectfully submitted and entered this 27th day of February, 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. C.A. Nuzum Director Division of Beverage 210 Johns Building Tallahassee, Florida Mr. Charles F. Tunnicliff Department of Business Regulation 725 S. Bronough Street Room 210, Johns Building Tallahassee, Florida 32304 Mr. White Route 2, Box 13B Marianna, Florida 32446
The Issue Whether the Application for Alcoholic Beverage License dated March 9, 1988, filed by Ocie C. Allen, Jr., should be approved by the Respondent?
Findings Of Fact Ocie C. Allen, Jr., d/b/a OCA, filed an Application for Alcoholic Beverage License dated March 9, 1988 (hereinafter referred to as the "Application"), with the Division. In the Application, Mr. Allen indicated under "Type of Application" that the Application type was "Other - ownership change because of contract and change of location." Mr. Allen listed himself as the "Applicant" and signed the Application as the "Applicant." The "Current License Number" listed in the Application to be transferred to Mr. Allen is 62-03498, current series 4 COP. The holder of this license was Terri Howell. At the end of the Application there is an "Affidavit of Seller(s)" to be executed by the licensee from whom the license is to be transferred. This affidavit has not been completed in the Application. The purchase price for the business was listed as $86,250.00. By letter dated March 16, 1988, the Division returned the Application to Mr. Allen and informed him that it was being returned for the following reasons: (1.) Need copy of loan in the amount of $86,250.00. (2.) If there are other agreements concerning this change, we will need copies. (Closing Statements) (3.) Need Affidavit of Seller signed by Ms. Howell making sure signature has been notarized on both applications. (4.) If no business name, please use applicants [sic] name also in that blank. Mr. Allen returned the Application to the Division with a letter dated March 21, 1988, and indicated, in part, the following: The Loan of $86,250.00 is 75% of the appraised value for which a 4 COP license was sold in Pinellas County prior to Ms. Howell winning the drawing. This amount is reduced by the amounts she has received from the operation of Spanky's. Thereby the actual amount owed by me to Ms. Howell is $86,250.00 LESS the amount she has received during the operation of Spanky's, approximately, $60,000.00. The Application was not modified by Mr. Allen. In a letter dated March 24, 1988, the Director of the Division requested the following additional information from Mr. Allen: (1.) Need Affidavit of Seller signed by Ms. Howell making sure signature has been notarized on both applications. (2.) Complete (No.5) Type of License Desired: (Series ). By letter dated March 28, 1988, Mr. Allen responded as follows to the Division's request for information: Enclosed is the application for transfer. Ms. Howell signature [sic] on the Independent [sic] Contractor Agreement is the only signature of hers that will be furnished to you. By letter dated April 4, 1988, the Division informed Mr. Allen that Terri Howell, the licensee, needed to sign the Affidavit of Seller. The Division notified Mr. Allen that it intended to deny the Application in a letter dated May 31, 1988. Mr. Allen was provided a Notice of Disapproval of the Application in a letter dated June 29, 1988. The following reasons were given for denial of the Application: Application to transfer the license does not bear the signature of the current licensee and, therefore does not evidence a bonafide [sic] sale of the business pursuant to [Section] 561.32, Florida Statutes. Application incomplete as applicant has failed to provide complete verification of his financial investment. Also, applicant has failed to provide records establishing the annual value of gross sales of alcoholic beverages for the three years immediately preceding the date of the request for transfer. The Division is, therefore, unable to fully investigate the application pursuant to Florida law. By letter dated July 19, 1988, Mr. Allen requested a formal administrative hearing to contest the Division's denial of the Application. Mr. Allen sent a letter to the Division dated October 27, 1988, with an Affidavit requesting permission to pay a transfer fee of $5,000.00 "in lieu of the 4-mill assessment."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case dismissing the case with prejudice. DONE and ENTERED this 17th day of January, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1989. COPIES FURNISHED: Ocie C. Allen, Jr. Post Office Box 10616 Tallahassee, Florida 32302 Lt. B. A. Watts, Supervisor Division of Alcoholic Beverages and Tobacco Department of Business Regulation 345 S. Magnolia Drive, Suite C-12 Tallahassee, Florida 32301 Harry Hooper Deputy General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927
