Findings Of Fact Respondent Lois Davis, who does business under the name of The Cotton Club, holds License No. 60-00245, a Series 2-COP license issued by petitioner authorizing her to sell beer and wine for consumption on the licensed premises, which are located at 233 Southwest Fifth Street, Belle Glade, Florida. At one time Ms. Davis held License No. 60-576 which authorized sale of hard liquor as well as wine and beer for consumption on the premises of The Cotton Club. On January 25, 1980, as a result of foreclosure proceedings against respondent's landlords, an order was entered directing that "all right, title and interest to Alcoholic Beverage License 60-576" be conveyed to Mr. and Mrs. Robert Daniel. Robert Daniel, et ux. v. Gilbert Adams, et al. v. Lois Davis, No. 78-4667 CA (L) 01 G (Fla. 17th Cir.). At the time respondent applied for her current license, shortly before the previous license expired, she asked that the latter be extended so that she could sell off her stock of hard or spirituous liquors. Petitioner's Lieutenant Little explained that the matter was before a court but agreed to approach the judge. In September of 1980, L. Dell Grieve, a six-year veteran of the Belle Glade Police Department, visited The Cotton Club, saw liquor in a storeroom, and told the bartender that it should be removed. The bartender protested that it was all right to store the liquor while something was being worked out about the license, or words to that effect. Beverage Officers Ramey and Rabie accompanied Officer Grieve on November 15, 1980, on a visit to The Cotton Club, where they found Andre Lavince Moore, respondent's son, tending bar. In the storeroom, they found numerous bottles of spirituous liquors which they confiscated. Petitioner's Exhibit No. Wine and beer were stored in a separate place in the same storeroom. At no time after she lost License No. 60-576 did respondent or her agents or employees sell any alcoholic beverages other than wine or beer at The Cotton Club, or have any intention of doing so without petitioner's permission.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint. DONE AND ENTERED this 14th day of May, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II 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 14th day of May, 1981. COPIES FURNISHED: Daniel C. Brown, Esquire Lt. J. E. Little 725 South Bronough Street Post Office Drawer 2750 Tallahassee, Florida 32301 West Palm Beach, FL 33402 Lois Davis The Cotton Club 233 Southwest Fifth Street Belle Glade, Florida
The Issue Whether petitioner's application for an alcoholic beverage license should be denied because of the direct or indirect interest of John Lee Johnson, a person allegedly lacking good moral character.
Findings Of Fact In May, 1982, petitioner Betty Jean Johnson applied for a 2 APS (beer and wine) alcoholic beverage license to be used in connection with a business known as Johnson's Corner Grocery, 1400 North J. Street, Pensacola, Florida. On her application, petitioner indicated that she owned the business and that no other person had a direct or indirect interest in the business. (R-1) Prior to the petitioner filing her application, John Lee Johnson, her husband, had applied for a beverage license for the same location under his own name. When he failed to disclose his criminal history on the application, his application was denied and he was charged with the crime of filing a false official written statement. On May 12, 1982, he was convicted by the County Court of Escambia County. (Testimony of Baxley; R-3) John Johnson's filing of a false official statement supports an inference that he lacks good moral character. Petitioner did not present evidence sufficient to rebut or negate this inference. Contrary to petitioner's assertion, John Johnson has a direct or indirect interest in Johnson's Corner Grocery. He owns the underlying real property. He signs, and is authorized to sign, checks on the business account of Johnson's Corner Grocery. The business's utilities, light, water, and gas accounts are all in his name. (Testimony of Baxley, Johnson, Kelly; R-4) Petitioner, however, manage's the day-to-day operations of Johnson's Corner Grocery. On her application, she indicated that she had purchased the business for $80,000, with $25,000 down, and $55,000 financed by the Barnett Bank. She now admits that the $25,000 down payment was provided by John Johnson, her husband, and that he also co-signed the $55,000 note and mortgage. Her application, however, does not disclose Mr. Johnson's participation in the purchase and financing of, the business. (Testimony of Johnson; R-1, R-4) On November 9, 1982, three days before hearing, Mr. Johnson leased the Johnson's Corner Grocery property to petitioner for $675.00 per month for three years. The handwritten lease, which was not signed in the presence of two subscribing witnesses, states that Mr. Johnson will not be "responsible for . . . the operations of . . . [the] business." This assertion is rejected as unworthy of belief in light of his extensive involvement in purchasing and setting up the business, and his continuing access to its funds. (P-1)
Findings Of Fact Prior to October 1977 the Nite Gallery, Inc., a nightclub featuring topless dancers, held license 2-COP No.58-1175 and the stock was owned by Sherrill Ann Perkins and Dorothy Jean Copeland. The owners were anxious to sell and placed an advertisement which was seen by Robert Waldorf, who visited the bar to discuss price. Waldorf was accompanied by Richard Bragg and Mary Jo Kelly. Following discussion, Waldorf, who did all the talking for the purchasers, agreed to purchase the business for $12,000 and gave each of the owners a check for $1,000, receipt of which was admitted into evidence as Exhibit 3. On 13 October 1977 the operation of the bar was taken over by Waldorf, although the two owners were still holders of the license. The $1,000 checks given as down payment were on the account of Sharon's Novelties, at Winter Park National Bank, an account on which Waldorf was the only one authorized to sign checks. During the next few weeks, Waldorf wrote numerous checks on this same account to pay for various equipment, supplies and labor for the Nite Gallery. In Application for Transfer of Alcoholic Beverage License stamped 8 November 1977 (Exhibit 6), Dorothy Copeland signed the Affidavit of Seller stating the license was transferred to Mary Jo Kelly who signed the affidavit of buyer that "no other person except as indicated herein, has an interest in the alcoholic beverage license for which these statements are made." Nowhere in the application was reference made to Waldorf. In 1973 Waldorf was convicted in the U.S. District Court for the Western District of Tennessee of offenses involving the transportation in interstate commerce of forged securities and was sentenced to three years confinement with a three years probation period running concurrently with the confinement. (Exhibits 1 and 2). As a result of these felony convictions, Waldorf is ineligible to hold an alcoholic beverage license in Florida. At the time of these transactions, Waldorf and Mary Jo Kelly had been living together for approximately two years. She worked as a dancer and B-girl in various nightclubs, usually in a club where Waldorf also worked. Kelly had no experience or knowledge respecting the operation of a bar or any other business, and all decisions, including the decision to buy the bar and all management decisions thereafter, were made by Waldorf. The sellers, Copel and and Perkins, were informed that Waldorf was the one purchasing the bar and that the license was being put in Kelly's name because Waldorf was ineligible to hold the license. This information came from Waldorf. On November 2, 1977 Waldorf signed a promissory note (Exhibit 5) promising to pay Copeland $300 per month until the balance of the $5,000 owed her for the purchase of the Nite Gallery was paid. Immediately prior to and following the transfer of the license to Respondent, Kelly danced at the Nite Gallery occasionally but otherwise had little, if anything, to do with the business. Waldorf did the hiring and firing, kept the accounts, signed checks for the bills owed, zeroed out the cash register, provided the bartender with funds each day to open the bar, and held himself out and performed all the functions of an owner in fact. Waldorf made arrangements for radio advertising for the Nite Gallery and paid for this service. (Exhibit 10). In his application for telephone service ordered 4-2-78 for his residence, Waldorf stated his occupation for the past two years was owner of the Nite Gallery. (Exhibit 12). After the license was transferred to Mary Jo Kelly, Waldorf opened another bank account on which both he and Kelly were authorized to sign checks. Kelly often signed blank checks which Waldorf completed to pay various expenses of the Nite Gallery. Kelly made no deposits in this account, maintained no record of expenditures from this account, and she had no information regarding the disposition of, or the amount of, money passing through the cash register at the Nite Gallery. Respondent testified that she provided all of the money used to purchase the Nite Gallery and to pay the initial bills from her earnings as a dancer. She also testified that this same source of funds provided the capital needed to buy a house, boat and two or three cars including a Continental Mark IV driven by Waldorf. Respondent further testified that she made $400 per week from tips as a dancer at the. Fiesta Club in Orlando immediately before purchasing the Nite Gallery and that she made $400-$500 per week in tips at the Nite Gallery. Her testimony was that the dancers worked on tips only. Exhibit 8, which is a cash and expense report for the Nite Gallery for December 1, 1977, shows that four dancers shared $17 for their work that evening. Although this was shown on Exhibit 8 as Commissions, other testimony indicated it was accumulated at $1 for each drink the customers bought for four dancers in one evening. These figures strongly militate against Respondent receiving $400-$500 per week in tips at this establishment. Respondent's testimony that her earnings provided the funds for a house, boat, and three cars in addition to the costs involved in opening the Nite Gallery is simply not credible. The testimony by Orange County Sheriff's deputies that one of them was struck by an employee of the Nite Gallery while on the premises was unrebutted All of the witnesses, including Respondent, testified that Respondent performed no role in the day-to-day management of the Nite Gallery and that Respondent did not have the experience or ability to run a business. At the time Respondent surrendered her license to Petitioner in March, 1979 she voluntarily submitted to questioning and the tape of that interrogation and the transcript of the tape were admitted into evidence as Exhibits 21 and Therein Respondent gave her age as 20 years old and stated that Waldorf had directed her absence from the first hearing. At Waldorf's direction she went to Pennsylvania and entered the hospital for a short period so she could truthfully advise her attorney that she was in the hospital in Pennsylvania during the March hearing. During this interrogation Kelly stated that she received no income from the Nite Gallery, that Waldorf ran the business, and that she had no knowledge of how the business was doing.
The Issue Whether Respondent unlawfully obstructed and/or hindered the inspection of his licensed premises by law enforcement officers and allowed or otherwise condoned the sale of alcoholic beverages in violation of a municipal ordinance concerning the hours of sale and, if so, what disciplinary action is warranted.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with regulating the sale of alcoholic beverages and tobacco in Florida. Respondent, El Greco, Inc., d/b/a El Greco is the holder of alcoholic beverage license number 63-00458, series 4-COP. Respondent's premises is located at 1109 East Main Street in Lakeland, Florida. Respondent's president is John Houvardis (herein Respondent). Petitioner issued two official warnings to Respondent on October 19, 1992. One warning was for a violation of Section 562.41, Florida Statutes, to wit, hindering or obstructing a law enforcement officer from conducting a search of the licensed premises which included locking a law enforcement officer from the premises. The other warning was for an alleged violation of the Lakeland City Ordinance relating to the sale, serving, or consumption of alcoholic beverages after the legal hours of sale. On January 29, 1994, Officer Ed Mingus of the Lakeland Police Department was dispatched to Respondent's premises at approximately 2:29 a.m. Officer Mingus was dispatched to investigate a complaint of "loud noises and sale of alcoholic beverages after hours". When Officer Mingus arrived at Respondent's premises on January 29, 1994, he heard noise coming from the licensed premises and observed several cars in the parking lot. The front door of the licensed premises was locked and Officer Mingus knocked to gain entry. An unidentified person answered the door and Officer Mingus identified himself as a police officer and requested entrance. Within seconds after requesting entrance, Respondent opened the door and allowed Officer Mingus inside the premises. At the time, approximately five employees were cleaning the licensed premises and no alcoholic beverages were observed either being served or consumed by Officer Mingus. Officer Mingus gained entry to the premises within five minutes of first knocking on the door. Officer Mingus suspected that there were other people inside and, in this regard, he asked Respondent if there were, in fact, other people in the licensed premises. Officer Mingus told Respondent of his suspicion that he was violating the hours of sale whereupon Respondent reiterated of his awareness of the ordinance prohibiting sale of alcoholic beverages after hours and insisted that he was not violating the ordinance. Officer Mingus thereafter requested permission from Respondent to search the licensed premises and Respondent consented to a search. Officer Mingus observed approximately nine or ten patrons in the kitchen area. Officer Mingus again reiterated his suspicion that Respondent was violating the municipal laws concerning the hours of sale and gave Respondent a verbal warning that if he was caught violating the ordinance, he would face criminal and administrative sanctions. Detective Denny Phillips of the Lakeland Police Department conducted a sight investigation of Respondent's premises on January 29, 1994, both prior to and while Officer Mingus was inside the licensed premises. Detective Phillips was across the street from the licensed premises with an unobstructed view of the premises on January 29, 1994. On February 26, 1994, Detective Phillips continued his investigation of Respondent's licensed premises. Detective Phillips instructed Officer Ed Cain, also a patrol officer for the Lakeland Police Department, to enter the licensed premises in an undercover capacity. Officer Cain was instructed to attempt to remain in the licensed premises after 2:00 a.m., and to purchase an alcoholic beverage. Officer Cain entered the licensed premises at approximately 12:30 a.m. on February 26, 1994, and observed a crowded lounge consisting mostly of college-aged patrons. Respondent was observed inside the premises. Officer Cain observed a large number of the patrons leaving the premises by 1:00 a.m., and Respondent's employees escorted the remaining patrons from the licensed premises at approximately 1:45 a.m. Officer Cain was not asked to leave the licensed premises and he remained along with approximately four or five other patrons. At approximately 2:10 a.m., Officer Cain ordered a shot of Sambuca, an alcoholic beverage described as a licorice liqueur, from a female employee. Officer Cain placed $2.00 for the beverage on the counter of the bar. Officer Cain observed that same employee placing the money in a bank bag containing the contents of the cash register. Officer Cain is familiar with alcoholic beverages and what they smell and taste like and has consumed alcoholic beverages prior to the evening of February 26, 1994. Officer Cain exited the licensed premises and notified Detective Phillips that he had purchased an alcoholic beverage from an employee after 2:00 a.m. Detective Phillips entered the licensed premises and met with Respondent who was still in the licensed premises. Detective Phillips advised Respondent that undercover officer Cain had purchased an alcoholic beverage from an employee after 2:00 a.m. and that Respondent and the employee would be cited for violation of the municipal ordinance respecting the sale of alcoholic beverages after hours. Respondent usually has extra food left over from functions that he has at the licensed premises from time to time and the employees and others who were in the kitchen area of the licensed premises after 2:00 a.m., on January 29, 1994, were eating some of that extra food.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order imposing a civil penalty against Respondent in the amount of one thousand ($1,000) dollars for the above-referenced violation (sale of an alcoholic beverage after hours). DONE AND ENTERED this 22nd day of November, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1994. APPENDIX TO RECOMMENDED ORDER Rulings on Petitioner's proposed findings of fact: Paragraph 4, rejected, unnecessary and not probative. Paragraph 10, adopted as modified, paragraph 5, Recommended Order. Paragraph 16, adopted as modified, paragraph 8, Recommended Order. Paragraph 20, rejected, contrary to the greater weight of evidence, paragraphs 11 and 12, Recommended Order. Paragraph 27, rejected as being a recitation of testimony, and not proposed findings of fact. COPIES FURNISHED: John M. Houvardas, President El Greco, Inc. 1109 East Main Street Lakeland, Florida 33801 Richard Courtemanche, Jr., Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris, Acting Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law. On or about October 20, 1992, Rebecca M. Abdelmuti, wife of Saber Abdelmuti, made application to DABT for the transfer of a 2-APS Alcoholic Beverage License owned by Grandma's Pantry of Florida, Inc. d/b/a Grandma's Pantry #6, to a new business, C & O Food Mart, located at 431 S. Central Avenue, Lakeland, Florida, owned by Rebecca M. Abdelmuti. In response to Section II, (B) of the application, Rebecca Abdelmuti listed Saber Abdelmuti as having a direct interest in C & O Food Mart. In Saber Abdelmuti's Personal Questionnaire filed with Rebecca Abdelmuti's application, Saber Abdelmuti indicated that he was investing $25,000 ("same as spouse") in C & O Food Mart. In Rebecca Abdelmuti's Personal Questionnaire filed with her application, Rebecca Abdelmuti indicates that she is also investing $25,000 in C & O Food Mart, using money given to her as a gift by her mother. DABT issued a temporary 2-APS Alcoholic Beverage License, number 63- 00859, to Rebecca M. Abdelmuti, d/b/a C & O Food Mart. On October 14, 1992, Rebecca M. Abdelmuti made application to the City of Lakeland for utility service and issued a check to Lakeland Electric for a deposit in the amount of $2,000 drawn on the account of Saber or Rebecca M. Abdelmuti at the Peoples Bank of Lakeland. Subsequent to the deposit being paid to Lakeland Electric, C & O Food Mart's electric bills, from October 1992, through January 1994, were paid by Rebecca M. Abdelmuti with checks drawn on account number 00361313 in the name of Rebecca M. Abdelmuti with Peoples Bank of Lakeland which account had been opened on October 27, 1992. Saber Abdelmuti was added as a signatory on account number 00361313 on November 2, 1992. Beginning in February 1994, the electric bills were paid by Saber Abdelmuti with checks drawn on a different account in the name of Saber Abdelmuti with the Peoples Bank of Lakeland. In October 1992, Rebecca M. Abdelmuti had GTE Telephone Company (GTE) install a telephone for C & O Food Mart. From October 1992 through March 1994, Rebecca M. Abdelmuti was listed on GTE's records as the sole person responsible for charges incurred for C & O Food Mart's telephone. The bank records for account number 00361313 with the Peoples Bank of Lakeland (DABT's exhibit 5) show the last payment made by Rebecca M. Abdelmuti to GTE for C & O Food Mart was December 3, 1993. Beginning in April 1994, Saber Abdelmuti was listed on GTE's records as the sole person responsible for charges incurred for C & O Food Mart's telephone. From October 1992, through January 1994, most of the bills for C & O Food Mart were paid by Rebecca M. Abdelmuti with checks drawn on account number 00361313 with Peoples Bank of Lakeland. However, numerous bills during this period were paid by Saber Abdelmuti with checks drawn on account number 00361313 with Peoples Bank of Lakeland. The Polk County Occupational License for the fiscal year 1992-1993 (October 1, 1992 through September 30, 1993) was issued to Rebecca M. Abdelmuti for C & O Food Mart. The application for the Polk County Occupational License for the fiscal year 1993-1994 (October 1, 1993 through September 30, 1994) was signed by Saber Abdelmuti but issued to Rebecca M. Abdelmuti for C & O Food Mart. On February 21, 1994, an application for the transfer of that license from Rebecca M. Abdelmuti to Saber Abdelmuti was completed and the license was transferred to Saber Abdelmuti for the balance of the fiscal year 1993-1994. The Polk County Occupational License for the fiscal year 1994-1995 (October 1, 1994 through September 30, 1995) was issued to Saber Abdelmuti for C & O Food Mart. The City of Lakeland Occupational Licences numbers 5212 and 5213 for the fiscal year 1992-1993 (October 1, 1992 through September 1993) were issued to Saber Abdelmuti for C & O Food Mart. There was no evidence that an occupational license was issued by the City of Lakeland to Rebecca M. Abdelmuti for C & O Food Mart. On October 31, 1992, Saber Abdelmuti obtained membership in Sam's Club in the business name of C & O Food Mart. Saber Abdelmuti was listed as the primary member and responsible party. Rebecca Abdelmuti and Patel Rajnikan were listed as secondary members. At the time Rebecca M. Abdelmuti filed her application for an alcoholic beverage license her record indicated a previous Beverage Law violation which apparently DABT considered sufficient to disqualify her for licensure. Rebecca M. Abdelmuti apparently chose not to oppose DABT on its position and requested, by letter dated April 13, 1993, that her application for a 2-APS Alcoholic Beverage License be withdrawn. The request was approved on June 19, 1993. At all times pertinent to this proceeding, Saber Abdelmuti has held a valid 2-APS Alcoholic Beverage License. On April 12, 1993, Saber Abdelmuti made application for a 2-APS Alcoholic Beverage License in the name of Saber Abdelmuti d/b/a C & O Food Mart, located at 431 S. Central Avenue, Lakeland, Florida. A temporary 2-APS Alcoholic Beverage License, number 63-02546 was issued on April 13, 1993, with an expiration date of July 11, 1993. The application was approved on May 13, 1993, and Saber Abdelmuti continues to hold a valid 2-APS Alcoholic Beverage License, number 63-02546. The following items were attached to the application in the licensure file, DABT's exhibit 1: (a) a document from Lakeland Electric & Water indicating that the bill for C & O Food Mart, account number 2000751-13-7, was to be billed to Saber Abdelmuti; (b) copies of the City of Lakeland Occupational License, Nos. 5212 and 5213 issued to Saber Abdelmuti for C & O Food Mart, 431 S. Central Avenue, Lakeland, Florida for the fiscal year 1992-1993 (October 1, 1992 through September 30, 1993); (c) a Bill of Sale Absolute wherein Rebecca M. Abdelmuti sold to Saber Abdelmuti "All the inventory and assets in the business named C&O Food Mart located at 431 S Central Ave. Lakeland, Florida 33801"; (d) an Amendment To Lease And Fuel Supply Agreement dated April 12, 1993, wherein Rebecca Abdelmuti was released from Lease and Fuel Supply Agreement (Lease) dated October 12, 1992, leaving "Saber Abdelmuti solely responsible for all of the duties and obligations of the Lease under the Lease" as of April 12, 1993 and; (e) a copy of an unsigned document dated April 8, 1993, wherein Saber Abdelmuti agreed to pay Rebecca Abdelmuti the sum of $35,000 with interest at the rate of 8 per cent annually from April 8, 1993. The Respondent, by signing the application, swore "under oath or affirmation under penalty of perjury . . . that the foregoing information" was "true to the best of" his "knowledge and that no other person or entity except as indicated" in the application had "an interest in the alcoholic beverage license and/or cigarette permit and that all of the . . . persons or entities" listed met "the qualifications necessary to hold an interest in the alcoholic beverage license and/or cigarette permit." The Respondent did not list any other person or entity as having an interest in the alcoholic beverage license being applied for. However, Saber Abdelmuti did list Rebecca Abdelmuti as having advanced him $35,000 for the operation of C & O Food Mart on his Personal Questionnaire filed with his application. As evidenced by the Bill of Sale Absolute, Rebecca Abdelmuti sold to Saber Abdelmuti whatever interest, direct or indirect, that she had in C & O Food Mart. Furthermore, the so called "promissory note" is not collateralized by any interest in C & O Food Mart and therefore, does not represent a security interest in C & O Food Mart. Likewise, there is no evidence of any mortgage (chattel or otherwise) on C & O Food Mart held by Rebecca Abdelmuti. Saber Abdelmuti applied for and was issued a Certificate of Registration in the name of C & O Food Mart by the Department of Revenue on April 20, 1993, authorizing the collection of sales and use taxes for the State of Florida. Sometime around March 31, 1993, Rebecca M. Abdelmuti filed a final Employer's Quarterly Federal Tax Return, Form 941, for the quarter ending on March 31, 1993, for C & O Food Mart with the Internal Revenue Service. By notice dated June 7, 1993, the Internal Revenue Service advised Rebecca M. Abdelmuti that the final Employer's Quarterly Federal Tax Return had been received. This filing is consistent with Rebecca M. Abdelmuti transferring the ownership of C & O Food Mart to Saber Abdelmuti. The transfer of ownership is also consistent with Schedule C, Form 1040, Profit or Loss From Business, the W- 2 Wage and Tax Statement 1993, and the W-3 Transmittal of Wage and Tax Statements 1993, Form 940 EZ, Employer's Annual Federal Unemployment (FUTA) Tax Return, and the final Employer's Quarterly Tax Report and Employer's Quarterly Wage Report to the State of Florida filed by Rebecca M. Abdelmuti during and at the end of the 1993 tax year. Saber Abdelmuti's tax records for the tax year ending December 31, 1993, concerning C & O Food Mart are also consistent with Saber Abdelmuti assuming ownership and control of C & O Food Mart from Rebecca M. Abdelmuti sometime around April 1, 1993. Upon assuming ownership and control of C & O Food Mart in April 1993, Saber Abdelmuti hired Rebecca Abdelmuti to manage C & O Food Mart. Saber Abdelmuti's tax records for the tax year 1993 and 1994 show Rebecca Abdelmuti as an employee of C & O Food Mart. On February 21, 1994, Special Agent West, of the DABT conducted an inspection of the premises of C & O Food Mart, located at 431 Central Avenue, Lakeland, Florida. The licensee of record is Saber Ismail Abdelmuti having been issued Alcoholic Beverage License number 63-02546. On February 21, 1994, during Agent West's inspection of the premises, Rebecca Abdelmuti identified herself as the owner of C & O Food Mart. Later on the same day, Agent West had a telephone conversation with Saber Abdelmuti wherein Saber Abdelmuti told Agent West that he knew Rebecca Abdelmuti did not qualify but he wanted her to have her own business as he did. There was no evidence that Saber Abdelmuti specifically told Agent West that Rebecca Abdelmuti had an interest in C & O Food Mart. However, based on his conversation with Rebecca Abdelmuti and Saber Abdelmuti and the fact that only Saber Abdelmuti's name appeared on the license and Saber Abdelmuti's application for license did not show Rebecca M. Abdelmuti as having an interest in C & O Food Mart Agent West decided to investigate further. After inspecting the records of C & O Food Mart, Agent West determined that Rebecca M. Abdelmuti had either a direct or indirect interest in C & O Food Mart and that Saber Abdelmuti had failed to divulge the interest of Rebecca M. Abdelmuti in his application for an alcoholic beverage license. Sometime around the first of March 1994, the C & O Food Mart accounts with GTE and Lakeland Electric were changed to reflect Saber Abdelmuti as being the person solely responsible for the payment of those accounts; the 1993-1994 Polk County Occupational License for C & O Food Mart was transferred to Saber Abdelmuti; and a new bank account was opened in the name of Saber Abdelmuti, d/b/a C & O Food Mart with the Peoples Bank of Lakeland, from which account all C & O Food Mart bills are being paid. It is clear from the record that Rebecca M. Abdelmuti was employed by Saber Abdelmuti as manager of C & O Food Mart after Saber Abdelmuti assumed ownership and control of C & O Food Mart. While Rebecca Abdelmuti receives a salary for managing C & O Food Mart, her salary is not percentage payment from the proceeds of C & O Food Mart and there is no evidence that Rebecca Abdelmuti has any right to a percentage payment from the proceeds of C & O Food Mart. It is equally clear that Rebecca M. Abdelmuti did not have any interest, as contemplated by the language of the Chapter 561, Florida Statutes, or the language of the application, particularly the language of the oath or affirmation in the application, in Respondent's alcoholic beverage license or the business of C & O Food Mart at the time Saber Abdelmuti filed his application for an alcoholic beverage license or any time subsequent to Saber Abdelmuti filing his application for an alcoholic beverage license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is recommended that a final order be entered dismissing the Administrative Action filed herein against Saber Abdelmuti. RECOMMENDED this day 28th of August, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1279 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2-3(2); 4(10); 5(11); 6(13); 7-8(19); 9(19-20); 10-11(5); 12(7); 13(8); 14(20); 15(9); 16(6); 17(4-5); and 18(19). Respondent's Proposed Findings of Fact. 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2-3(2); 4(10); 5(11); 6(13); 7-8(19); and 9(14-17). COPIES FURNISHED: John J. Harris, Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda L. Goodgame, Esquire General Counsel Department of Business Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard A. Grumberg, Esquire Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Tony C. Dobbs, Esquire 740 South Florida Avenue Post Office Box 2657 Lakeland, Florida 33806-2657
The Issue The issue in this case is whether the Respondent's alcoholic beverage license should be revoked, suspended, or otherwise disciplined for a violation of Section 562.11, Florida Statutes, a provision of the Florida Beverage Law, which prohibits the sale of alcoholic beverages to a minor. At the formal hearing the Petitioner called as witnesses: Thomas L. Stout, Bernard W. Cooper, Timothy J. Culley, and Craig Brady Cooper. Mr. Antonino Sciarrino testified on behalf of respondent. The Petitioner offered and had admitted into evidence two exhibits and the Respondent offered no exhibits into evidence. Both the Respondent and counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the hearing officer. To the extent that those proposed findings and conclusions of law are inconsistent with the findings and conclusions contained within this order they were considered by the hearing officer and rejected as being unsupported by the evidence or unnecessary to the resolution of this cause.
Findings Of Fact At all times material to this action the Respondent was the holder of beverage license number 21-478, Series 2COP. This license was issued for the licensed premises located at 499 Goodlette Road, Naples, Florida. The licensed premises is a convenience store that also sells various types of food and dry good items plus sandwiches and beer. The Goodlette Food Mart, Inc. is owned and managed by Antonino Sciarrino, the President of the Respondent corporation. The Goodlette Food Mart opened for business on January 1, 1982. Prior to this time Mr. Sciarrino operated a deli in New York City where he also sold beer. Sometime during October, 1982 (the specific date being unknown) , Craig Cooper, a minor, 16 years of age was stopped by a Naples police officer and found to be in the possession of a six-pack of beer. This beer had been purchased by Craig Cooper at the Goodlette Food Mart and he informed the police officer of this fact. Mr. Cooper was asked by the police officer if he would be willing to cooperate in a controlled buy at the Goodlette Food Mart. Mr. Cooper indicated that he would. Subsequent to the October stop Craig Cooper agreed to cooperate with the police in making a controlled purchase of alcoholic beverages at the Goodlette Food Mart and on November 6, 1982, Mr. Cooper was contacted by a Naples police officer and was given cash. He was asked to go to the Goodlette Food Mart and to use the cash he had been given to attempt to purchase alcoholic beverages. From the police station Craig Cooper drove to the Goodlette Food Mart and Officer Culley of the Naples Police Department followed him. While Craig Cooper went inside the Goodlette Food Mart Officer Culley observed from the parking lot, Craig Cooper entered the Goodlette Food Mart and went directly to the cooler area where soft drinks and alcoholic beverages are kept. He removed a six-pack of Heineken Beer. He then proceeded to the cash register and paid for the beer. The cashier on duty was Robert Peterson. He did not question Craig Cooper or ask him for any identification at the time that Mr. Cooper paid for the beer. Mr. Cooper then left the store and turned the beer over to Officer Culley. At the time of the purchase by Craig Cooper, the manager Antonino Sciarrino was not present in the store. Mr. Sciarrino, was in the store 10 to 12 hours a day, but was generally not present in the evenings. Robert Peterson had been hired as a part-time employee approximately two or three months prior to November 6, 1982. Mr. Sciarrino had no prior problems with Robert Peterson and was not aware of any instances where he had sold beer to minors. At the time Robert Peterson was hired, he was instructed to not sell to minors and to always ask for and check identification prior to selling alcoholic beverages. There was also a sign posted in the employees room where they clock in and clock out which warned them that they could be criminally prosecuted for failing to check identification and for selling alcoholic beverages to minors. The Goodlette Food Mart had a policy against selling to minors and all employees were instructed regarding this policy and were required to check identification prior to selling alcoholic beverages. There were signs posted on the cooler and the cash register informing customers that minors were prohibited from purchasing alcoholic beverages and that identification was required, There was also a sign next to the cash register which reminded the cashier to check the customers' I.D. when purchasing alcoholic beverages. This sign also gave the date and year which the birthdate on the identification had to predate in order for the person to purchase alcoholic beverages. The purpose of this sign was to enable employees to more efficiently and more accurately check identifications. Immediately following notification of the November 6, 1982, sale to Craig Cooper, Mr. Sciarrino terminated Robert Peterson's employment with the Goodlette Food Mart.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That thee Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed. DONE and ORDERED this 14th day of October, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1983. COPIES FURNISHED: Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Antonino Sciarrino, President Goodlette Food Mart, Inc. 499 Goodlette Road Naples, Florida Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent failed to use due diligence to prevent the sale of alcoholic beverages to persons under the age of 21 years on September 20, 1989, October 18, 1989 and February 2, 1990, which warrants discipline of its beverage license.
Findings Of Fact At all times material hereto, Respondent Pic-N-Save Central Florida, Inc., doing business as Pic-N-Save Drugs #44, held alcoholic beverage license number 69-00622, Series 2-APS, for the premises located at 940 S.R. 434, Longwood, Seminole County, Florida. Notice of training programs, sponsored by the Division of Alcoholic Beverages and Tobacco, to assist licensees in the training of their employees to maintain compliance with the laws regarding sales of alcoholic beverages to underaged persons is provided to all licensees as a part of their renewal notices. Respondent renewed its license on September 1, 1989, after having received such a notice. On August 10, 1989, Officer Cruce received a complaint about Respondent's licensed establishment from the Altamonte Springs Police Department. The nature of the alleged unlawful activity was the sale of alcoholic beverages to underaged persons. On September 20, 1989, Ms. Nicole Asbury, born March 3, 1971, an 18 year old underaged operative with the Division of Alcoholic Beverages and Tobacco, entered Respondent's licensed premises under the supervision of Officers Elizabeth Doyle and Mark Douglas, Law Enforcement Investigators with the Division of Alcoholic Beverages and Tobacco. Asbury was casually dressed, and did not appear to be a person over 21 years of age. Asbury purchased a sealed six pack of Busch Beer, 12 oz. cans, from one of Respondent's cashier employees on the licensed premises. Respondent's employee, Ms. Patricia Ann Crabtree, neither requested identification from nor asked the age of Asbury. Asbury, while still at the licensed premises, turned the sealed six pack of Busch Beer over to Officers Doyle and Douglas, after the transaction was completed. After having it initialed for identification by Asbury, Doyle and Douglas, Officer Doyle secured the beer in a wooden box in the trunk of her car until the morning of September 21, 1989, when Officer Doyle and Sgt. Blanton placed it in the Division of Alcoholic Beverages and Tobacco evidence vault until its release for the hearing in this case. It was in substantially the same condition as on September 20, 1989. Asbury had never purchased or attempted to purchase an alcoholic beverage in Respondent's establishment prior to September 20, 1989. Following the incident on September 20, 1989, Officer Doyle provided Respondent, via its manager Ms. Roseann Gasparro, with Notice of "Warning and Instructions for Compliance regarding violation(s)" on the licensed premises. The notice advised the Respondent that Crabtree had been apprehended and encouraged Respondent to "immediately contact the District Director, Cpt. Jack Wallace, to discuss the problem". This notice is called a "Step 1 Notice." On October 17, 1989, Respondent conducted a general meeting for all employees of the store to discuss security procedures throughout. The law against the sale of alcoholic beverages to minors was discussed and procedures for checking ID's were covered by Respondent's chief of security. Minerva Trill-Otevo was present and was trained at said meeting. On October 18, 1989, Asbury, age 18, again entered the licensed premises. She was under supervision of Division of Alcoholic Beverages and Tobacco Officers Doyle and Smith and casually dressed, as instructed by the Officers, appearing to be a person under 21 years of age. Asbury went to the back of the store and picked up a sealed six pack of Bud Light Beer. As she approached the front, she asked Ms. Minerva Trillo- Otero, an employee of Respondent if her register was open. Trillo said yes and proceeded to her register and sold the alcoholic beverages to Asbury. Trillo did not at any time during the October 18, 1989, transaction, either request identification from or ask the age of Asbury. After the transaction was completed, Asbury turned the beer over to Officer Doyle. Subsequent to having it marked and tagged for evidence by Asbury and the Officers, Officer Doyle and Sgt. Blandton placed it in the evidence vault, where it remained until its release for the hearing. It was in substantially the same condition as on October 18, 1989. Petitioner issued a "Final Warning" letter on October 23, 1989, urging Respondent to personally address the problem, as a subsequent violation would invoke issuance of a Notice to Show Cause. Respondent was, again, encouraged to immediately make an appointment with the Division's representatives. On February 2, 1990, Officers Doyle and Smith, Law Enforcement Investigators with the Division of Alcoholic Beverages and Tobacco, were being assisted by Melissa Schuckman, an 18 year old (born July 26, 1971), underaged operative. Schuckman and the Officers went to Respondent's licensed premises, where Schuckman purchased a sealed six pack of Coors Light Beer from Ms. Milda Grabnickas, a cashier in Respondent's employ. Ms. Grabnickas did not, at any time during the transaction, ask for identification from or request the age of Ms. Schuckman. Schuckman is, and appeared at the time to be, a person under 21 years of age. After purchasing the beer, as she was exiting the premises, Schuckman turned the beer over to Officer Doyle. Officer Doyle and Ms. Schuckman marked the beer and tagged it for identification, after which, Officer Doyle secured the beer as she had on the two previous occasions, and kept it in the evidence vault of the Division of Alcoholic Beverages and Tobacco until its release for the hearing. It was in substantially the same condition as on February 2, 1990. As a result of the activity which occurred on February 2, 1990, Officer Doyle gave notice to Respondent via its representative, Ms. Gasparro, of the Petitioner's intent "to file administrative charges against your beverage license for violation of Florida Statute Section 562.11 . . . ." Subsequently, the February 13, 1990 Notice to Show Cause at issue in this case was rendered. Pursuant to policy of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, administrative charges, i.e., Notices to Show Cause, are not issued until there are three instances of alleged unlawful sales of alcoholic beverages to underaged persons. Respondent hosted a training program for all employees, conducted by Officer Cruce of the Division of Alcoholic Beverages and Tobacco, on February 26, 1990, at the request of Ms. Gasparro, the store manager. Although the request for the training program was made in late January, the third instance of unlawful activity had already occurred prior to the training program. Despite a relatively high turnover of personnel, Respondent conducts, on the average, two security meetings per year. Compliance with the Florida Beverage license law is but one of several issues addressed at these meetings. It is the Respondent's written policy to discharge an employee for violation of law or company policy. Respondent has signs posted for cashiers and customers regarding the sale of alcoholic beverages to underaged customers at each register which read as follows: "If you were born after today's date 1969 you cannot purchase wine or beer."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be held responsible for failure to use due diligence to prevent the sale of alcoholic beverages to persons under 21 years of age on three occasions in 1989 and 1990; and it is FURTHER RECOMMENDED that Respondent pay a civil penalty in the amount of $1000 and serve a 20-day suspension of its alcoholic beverage license number 69-00622, Series 2-APS. DONE AND ENTERED this 24th day of October, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,7,8,9,10,12,13,14,16,17. Rejected as argument or irrelevant: Paragraphs 11,15. Respondent's Proposed Findings of Fact: Accepted in substance: Paragraphs A (in part), C,D,E,F,M,N,O,S. Rejected as not supported by the greater weight of the evidence: Paragraphs B,G,H,K,P.R. Rejected as irrelevant: Paragraphs I,J,L,Q. COPIES FURNISHED: Emily Moore, Esquire Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1007 Joseph Sole Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1007 Simon W. Selber, Esquire Suite 500 Edward Ball Building Jacksonville, FL 32202-4388 Leonard Ivey Director Division of Alcholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000
The Issue The issues in this case are whether Respondent or its agent illegally sold alcohol to a minor and, if so, what penalty should be imposed.
Findings Of Fact Respondent, Moe's Petroleum Corp., d/b/a Plantation Texaco, is a small, privately-owned gas station and convenience store. It is owned and operated by Mohammed Shareed. Mr. Shareed and his wife are the primary full-time employees of the business. For the period relevant to this matter, Sharika Salmon was a part-time employee. The business sells both gasoline and commercial items to its customers. Sale of packaged alcoholic beverages (beer and wine) is allowed under the business' alcohol beverage license, No. 16-06936, Series 2 APS. Mr. Shareed has owned and operated the business for about two years. He has not been previously cited for violating the terms of his alcohol beverage license. Ms. Salmon is a college student. She obtained a part- time position at the business following discussions between her aunt and Mr. Shareed. It was decided that Ms. Salmon could work a few hours each afternoon after class whenever possible. She averaged about 12 hours per week while employed at the business. She was trained as to how to operate the cash register and other machines. Part of her training included specific instructions to ask customers for identification when they purchased alcohol. She understood she was not to sell alcohol to anyone under the age of 21 years. Mr. Shareed advised his employees daily about checking for identification when alcohol was purchased. He placed visible written signs in the store advising customers that minors could not purchase alcohol. On November 16, 2006, at approximately 7:50 p.m., Investigative Aide #FL0033 entered the business. He was working for the Division as an underage cooperative. His job was to attempt to purchase alcohol from various businesses. On the night of November 16, 2006, he did about 15 "buys" during the 5:00 p.m. to 10:00 p.m. time frame. The purchase at Mr. Shareed's business was one of those. On the evening in question, Investigative Aide #FL0033 (at that time 18 years old) entered the business, went to the beer cooler in the back, and selected a six-pack of Heineken beer. He took the beer to the front counter and, along with a pack of gum, placed it on the counter. The investigative aide gave the clerk (Ms. Salmon) a ten-dollar bill from investigative funds entrusted to him for that purpose. She took the bill, made change, and handed the change and the beer to the investigative aide. He took his purchases and left the store. No words were exchanged between the investigative aide and the clerk during the sales transaction. Ms. Salmon did not ask the investigative aide for identification in order to ascertain his age. At the time of the transaction, Mr. Shareed was standing just to the clerk's right side concentrating on paperwork related to previous gasoline purchases. He was no more than two or three feet from the clerk. Mr. Shareed was standing at a 90-degree angle from the counter and the clerk. He was not involved in the sale transaction and did not specifically remember it occurring. Mr. Shareed gave his employees the right to act independently once they were trained. He did not monitor or oversee their every move. During the transaction, Special Agent Fisten was also in the store, posing as a customer. He was standing behind the investigative aide during the sale and did not hear any words spoken during the entire transaction. The investigative aide took the beer outside where it was taken by Special Agent Smith, who placed it in a bag, marked it for identification, and initialed the identification receipt. The beer was then placed in the trunk of Special Agent Smith's vehicle. The special agents then went back into the store and notified Mr. Shareed that they were charging him with sale of alcohol to a minor, a violation of his license. He was cited and instructed about the administrative process. The agents took information from Ms. Salmon as well. In fact, they asked her for identification due to the fact that she looked so young. (Ms. Salmon quit her job after this incident because the process upset her.) During the sale transaction, Mr. Shareed was doing paperwork incident to gasoline purchases made earlier in the day. He was preoccupied with that work and did not notice the sale as it occurred. Mr. Shareed's testimony on that fact is credible; it is not likely that he actively watches or participates in every sale that occurs during the day. Mr. Shareed was not involved in the sale; had he been, he would have requested identification from the investigative aide. The policy of the business was to require identification from anyone purchasing beer who looked young. The business had never previously been cited for violation of its license. Nor was the Division investigating the premises on the basis of a complaint or allegation. Rather, the business was simply chosen at random because it was in the area the Division was focusing on that particular day. Mr. Shareed's testimony that he trained his wife and other employees to check identification was credible. Conversely, the testimony of the investigative aide and other agents appears cloudy concerning the distinguishing facts of the sales transaction at issue compared to numerous other transactions during that same evening. Petitioner is seeking to impose a fine of $1,000 and a suspension of Respondent's license for a period of seven consecutive days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, dismissing the charges against the license of Respondent. DONE AND ENTERED this 6th day of June, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2007.
