Findings Of Fact Although there was a detailed evidentiary presentation at the hearing, there was no real disagreement between the parties on the essential facts: Petitioner's husband is disqualified to hold a beverage license on account of a previous felony conviction. He has invested a substantial sum in Ye Olde English Pub, including the real estate that houses the business. Petitioner failed to disclose her husband's interest on forms submitted to respondent in connection with her application to transfer a beverage license to her from the bar's former owner.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for license transfer. DONE and ENTERED this 22nd day of October, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joe Allen, Esquire 417 Eaton Street Key West, Florida 33040 Dennis E. LaRosa, Esquire 725 South Bronough Street Tallahassee, Florida 32303
The Issue Whether or not on or about the 16th day of January, 1976, the licensees, I. and Christine Lockett, did unlawfully fail to maintain the operation and responsibility of their licensed business by relinquishing the control of said licensed premises to Louise Bryant, in violation of Rule 7A-3.17, Florida Administrative Code.
Findings Of Fact The Respondents, I. J. and Christine Lockett, were holders of Series 2- COP beverage license issued by the State of Florida, Division of Beverage during the period of October 1, 1975 up to and including the date of the hearing, as evidenced by the Petitioner's Exhibit No. 3 admitted into evidence. This Exhibit No. 3 is a copy of the beverage license. On or before January 16, 1976, I. J. Lockett left the city of Jacksonville, Florida, and his licensed premises at 846-848 East First Street, Jacksonville, Florida, and went to Miami, Florida to bring back his wife, Christine Lockett. Christine Lockett had gone to Miami, Florida, after the death of their son. Christine Lockett had been running the bar in conjunction with I. J. Lockett prior to her departure for Miami, Florida. When I. J. Lockett left the city of Jacksonville he turned the control and management, responsibility over to one Louise Bryant. This control and management transfer was evidenced by the fact that he gave Louise Bryant $400.00 to purchase items of stock and a salary of $65.00 per week, plus additional monies if Ms. Bryant was successful in the operation of the bar. Upon his return from Miami, Florida, I. J. Lockett gave Ms. Bryant an additional $120.00 for purchase of stock items for the bar. While I. J. Lockett was in Miami and dating from January 16, 1976, Louise Bryant was authorized to purchase wine and beer and did make purchases of that wine and beer as evidenced by the checks written on her bank account to various distributors. Copies of those checks are found in Petitioner's Composite Exhibit No. 4 admitted into evidence. In addition, Louise Bryant had the electric service placed in her name for Chris and J's Beer Garden located at 846-848 East First Street, Jacksonville, Florida. Louise Bryant got the profits from the business as her compensation for maintaining the business in the absence of I. J. and Christine Lockett, she also paid the rent on the premises to the landlord. Sine I. J. Lockett's return from Miami, Louise Bryant has continued to work in the business.
Recommendation It is recommended that the license of the Respondents, I. J. and Christine Lockett, d/b/a Chris and J's Beer Garden be revoked, but the imposition of that revocation be withheld upon a satisfactory showing that Louise Bryant is not currently the defacto manager aid operator and responsible party in the licensed premise. DONE and ENTERED this 18th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles C. Tunnicliff, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 I. J. and Christine Lockett 846-848 East First Street Jacksonville, Florida
The Issue The primary issues for determination are whether Brother J. Inc., d/b/a A.J.’s Sports (Respondent) violated Section 561.29(1)(a), Florida Statutes; and secondarily, if Respondent committed such a violation, what penalty should be imposed?
Findings Of Fact Petitioner is the agency vested with general regulatory authority over the alcoholic beverage industry within the state, including the administration of the laws and rules relating to the sale of alcoholic beverages. Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued license number 47-02607, Series 4-COP by Petitioner. That license allows Respondent to make sales for consumption on premises of liquor, wine, and beer at his establishment located in Tallahassee, Florida. Events at issue in this proceeding revolve around a fraternity/sorority party held at Respondent’s establishment on the evening of March 30/April 1, 2005. Members of the Phi Kappa Psi fraternity and the Delta Nu Zeta sorority decided that they would host a “construction” theme party. To facilitate the party, the social chairman of Phi Kappa Psi contacted Respondent to make arrangements. Respondent’s establishment has several large areas on its ground floor and a single, 1,800 square foot room on the second floor. Respondent agreed to reserve its upstairs room for the Phi Kappa Psi/Delta Nu Zeta party, to waive its cover charge for party patrons, and to make “dollar wells, dollar beers” (i.e. discounted prices on certain alcoholic beverages) available to party participants for a fee of $300.00. On the night in question, most of the participants met at the Phi Kappa Psi house before going out for the evening. They gathered around 10:00 p.m. and socialized. Some people were getting their “construction” costumes together; others were “pre- partying” –-drinking before going out to minimize the size of the bar bill when they go out later. The majority of the people at the frat house at that time were drinking. At some point around 10:30 or 11:00 p.m., the party moved from the Phi Kappa Psi house to Respondent’s establishment, with party members leaving in groups of three or four to drive from the fraternity house to Respondent’s establishment. It was estimated that 15 or so sorority members and 15 to 30 fraternity brothers attended the party, and that somewhere between a third and a-half of those people were not of legal drinking age. When they arrived at Respondent’s establishment, the sorority and fraternity party makers used a side entrance set up for them by Respondent for use in getting to the party. A doorman was posted at the side entrance that checked the age of each of the patrons. He would place a “Tybex®” wristband on those persons who were over the age of 21 and would mark the hand of those under 21 with an indelible marker. Once inside, party members would go upstairs, where there was a bar with a bartender, a disk jockey, and a dance floor. The party continued on until around 2:00 a.m. on the morning of April 1, 2005, at which time the bar closed and the patrons left. During the course of the evening, 244 alcoholic beverages were served at the upstairs bar at Respondent’s facility. No evidence was presented that established with any degree of accuracy how many fraternity and sorority members actually were at the party and how many were of legal drinking age. The evidence of party attendance provided at hearing varied widely and was in each instance an estimate or a guess. Numerous persons who were not members of Phi Kappa Psi or Delta Nu Zeta were in attendance. There is no accurate estimate of how many legal drinkers were at the party or how many drinks each legal patron may have had. The Underage Drinkers Shane Donnor was observed drinking at the frat house that night. He did not, however, appear to be intoxicated when he left the frat house. He had a wristband indicating that he was over 21, which allowed him to drink at Respondent’s establishment, even though he was not of legal age. It is unknown how he obtained his wristband. Donnor was observed to have a glass in his hand while at Respondent’s establishment, but no one could confirm that he was drinking alcohol. While at Respondent’s establishment, various witnesses described him as appearing under the effects of alcohol and thought he appeared quite intoxicated. By 2:30 a.m. on April 1, Donnor had a blood alcohol level of 0.27. This corresponds to at least 10 drinks and probably more. It is an extremely high level of intoxication, which could result in a coma or even alcohol toxicity in some persons. He was quite drunk and had been so for some time. Stephanie Reed was carded upon entering Respondent’s establishment, as was her boyfriend and all the others in her party. She had one or two drinks, but she didn’t buy them herself. One of the fraternity brothers purchased her drinks for her. Reed testified at one point that she did not receive a wristband when she entered the establishment (signifying legal drinking age); later, she testified that she did due to the intervention of some unknown man who told the doorman to give her a bracelet. Reed’s testimony on this point is inconsistent and cannot be credited. Christopher Lowe was carded as he entered Respondent’s establishment. He received marks on the back of his hand indicating that he was underage. Although he was marked as being underage, Lowe was able to purchase two drinks from the bartender. He ordered the drinks; did nothing to conceal the underage marks on his hand; was served; and left money on the bar. Tania Vasquez was carded upon entering Respondent’s establishment and was marked as being underage. She did not buy any drinks while at the party, but was given an alcoholic beverage by a friend that she consumed while on the premises. Elizabeth McKean, and everyone who entered with her, were carded when they arrived at the party. McKean was marked as being underage. She did not buy any drinks for herself, but was given a shot of tequila by someone else. She drank the shot quickly to avoid detection by Respondent’s staff. David Moser had a roommate who manufactured fake i.d. cards. When he entered Respondent’s establishment, he was carded and presented a false drivers license that made it appear that he was over the age of 21. He was marked as though he was over the legal drinking age and was able to buy and consume drinks at the bar, which he did. Lee Habern had several sips of a friend’s drink that was “snuck” to him. Prevention Of Underage Drinking It is well recognized that underage persons will seek to obtain alcoholic beverages at bars. This action by underage youths results in a “cat and mouse” game whereby the bar will change its tactics in trying to prevent underage drinking and the underage drinkers will change their methods of trying to obtain drinks. Respondent tries to combat underage drinking by creating a culture of compliance. This starts with the initial hiring of employees by Respondent. Respondent’s policy is that no underage drinking will be tolerated. This policy is stated in the Employee’s Handbook. Every employee is given a copy of the handbook upon becoming employed and is required to sign an acknowledgement that he or she received it. The policy is reiterated in informal training at every staff meeting. Every new employee at Respondent’s establishment is required to go through formal training with regard to liquor laws, the effect of alcohol on the human body, dealing with customers who have had too much to drink, and related topics. These courses are known as “PAR”, “TIPS”, and “Safe Staff” and are offered by the Florida Restaurant Association and Anheiser-Busch. Respondent has also offered training provided by agents of Petitioner. These formal training programs are offered continuously to employees, and at least one of the programs is offered three times each year. The initial formal training is accomplished within 30 days of the employee being hired. Records are maintained by Respondent as to who receives what training, and when it is provided. Respondent has a policy that everyone who is served alcohol is to have his or her age checked. When the bar is not busy, this is accomplished by having the waitress check the patron’s I.D. When the bar is busier, a doorman is posted at the entrance to check the patron’s I.D. If the patron is over age 21, he or she is given a wristband; if under age 21, an indelible mark is placed on the back of the hand. Since Respondent has experienced persons copying their “over 21” designation, it is changed on a nightly basis. Fake identification cards, if detected, are confiscated. On busier nights, Respondent might confiscate 20 to 30 of such fake identifications. On the night in question, the doorman confiscated five altered cards. Respondent also has a floor manager on duty at all times that the bar is open. The floor manager will circulate throughout the establishment to make sure that all of the policies and procedures, including the prevention of underage drinking, are being carried out. On the night in question, the floor manager, Bo Crusoe, is documented to have worked and in the nominal course of events would have checked the upstairs area of the premises several times. On busy nights, Respondent will hire one or more off- duty City of Tallahassee police officers to serve as security at the bar. The officers work in their police uniforms. These officers serve first and foremost as high visibility deterrents to unlawful activity. Their mere presence serves to minimize underage drinking. Respondent regularly has off-duty law enforcement on the premises. Respondent also has a security consultant, Officer John Beemon, who is a Tallahassee Police officer. He evaluates the need for additional security and communicates those needs to the owners. When he becomes aware of a new wrinkle in underage persons obtaining alcohol, he works with Respondent to prevent the practice. He assists the doormen in identifying fraudulent I.D.s. Respondent has always implemented whatever recommendations Beemon makes to them. Generally, the security measures used by Respondent have proven effective. From time to time, Petitioner will try a “sting operation” at Respondent’s establishment by sending a minor into Respondent’s bar to see if they are able to purchase alcohol. On every such “sting operation” Petitioner’s decoy was identified and stopped at the front door and was not allowed to purchase alcoholic beverages. Carrie Bruce is Petitioner’s special agent for the Tallahassee area. She is familiar with most Tallahassee alcoholic establishments and her testimony establishes that Respondent’s establishment is not considered a “problem bar” by Petitioner and is considered to be better than other area bars in preventing underage drinking. To the best of the owner’s knowledge and Beemon’s knowledge, no one has ever knowingly served a drink to a minor at Respondent’s establishment. Further, Respondent has never previously been charged with serving alcohol to minors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
Findings Of Fact At all times relevant hereto, respondent, Blue Sun, Inc. d/b/a Phillip's Corner Cruise-Thru, was a licensed beer vendor having been issued Series 2-APS license number 39-01076 by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent uses its license at a business known as University Texaco located at 2245 East Fletcher Avenue, Tampa, Florida. The store is located close to the University of South Florida campus. Its manager is Nancy Krueger, who appeared on behalf of the licensee. On the evening of December 4, 1987 a Division investigator, Keith B. Hamilton, conducted an investigation of respondent's licensed premises to determine if respondent was selling beer to minors. The investigation was prompted by an unidentified complaint that beer was being sold to minors. It was the Division's practice that when such complaints were received, it sent a minor onto the premises for the purpose of purchasing alcoholic beverages. In this case, a sixteen year old minor, Scott Meredith, drove his personal car to the store and, while Hamilton stayed across the street and observed the transaction, ordered a twelve ounce can of Budweiser beer. The store clerk, John A. Damm, did not check Scott's identification or verify his age and sold him the beer. Afterwards, Hamilton met with Damm, obtained his identification and issued a criminal citation for Damn to appear in court for selling beer to a minor. Around 10:45 p.m. on July 8, 1988 Hamilton and a Division investigative aide, James Leschner, who was then 17 years of age, visited respondent's licensed premises for the purpose of determining if Leschner could purchase beer. While Hamilton stayed across the street and observed the transaction, Leschner drove to the front of the store in his own car and ordered a six-pack of Budweiser beer. The clerk, Brian Szcinski, did not check Leschner's identification or verify his age and sold him the beer. Szcinski was issued a citation requiring him to appear in court. After the incident occurred, Szcinski advised the manager what had happened. On September 10, 1988 Hamilton and Leschner returned to respondent's licensed premises. Again, while Hamilton observed from across the street, Leschner drove his own car to the front parking area and ordered a can of Budweiser beer. The order was initially placed with an unidentified male clerk but Krueger accepted the money and handed the beer to Leschner. The minor's identification was not checked. After the sale took place, Hamilton issued Krueger a criminal citation requiring her to appear in court. Also, a notice to show cause was later issued against the licensee seeking to impose a fine and suspend its license. Krueger blamed the three incidents on a high turnover of employees and the failure of a few employees to conform to store policy. According to Krueger, despite posting signs, advising employees of the rule on sales to minors, and instituting a policy of checking the identification of every person who looked under thirty years of age, these three sales inadvertently occurred. She asked for leniency given the number of years the business has been operating and the isolated instances of misconduct. She also complained that after the December 4, 1987 sale occurred, the Division did not personally advise her or the owner of the incident but merely served a citation on the clerk. According to agency records, respondent entered into consent agreements with the Division in 1983 and 1985 for the same type of violation. The agency does not have a rule containing suggested penalty guidelines for violations by licensees. However, its investigator recommended the imposition of a 60-day suspension of respondent's license and a $3,000 civil penalty as being appropriate under the circumstances.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 562.11(1)(a), Florida Statutes (1987) on three occasions. It is further recommended that respondent's APS license number 39-01076 be suspended for sixty days and it pay a $3,000 civil penalty. DONE and ENTERED this 27th day of April, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 27th day of April, 1989.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, La Dominica Restaurant, Inc., held beverage license number 23-21657, series 2COP, authorizing the sale of alcoholic beverages (beer and wine only) for consumption on the premises known as La Dominica Restaurant, located at 11710 Northwest South River Drive, Medley, Dade County, Florida (hereinafter "the licensed premises"). On November 19, 1997, Joel Chades, a police officer with the Town of Medley, and Mr. Guasch, a code enforcement officer with the Town of Medley, operating undercover, visited the licensed premises in connection with their investigation of complaints that Respondent was selling alcoholic beverages not permitted by their license. Officers Chades and Guasch entered the premises at or about 5:56 p.m., and seated themselves at one of the small tables provided for customers. When approached by a waitress, Officer Chades ordered a beer and a coke, with rum on the side. The waitress proceeded behind the counter, and was observed to pour a liquid from a plastic container into a styrofoam cup. She proceeded to the cooler for a beer and coke, and returned to the table where she delivered the drink order. The styrofoam cup was shown to contain rum, an alcoholic beverage not authorized to be sold on the licensed premises. On December 4, 1997, Officers Chades and Guasch returned to the licensed premises to continue their investigation and, when approached by a waitress, ordered two Corona beers and a rum and coke. The waitress proceeded to the back of the counter, and was observed to begin to pour what was, presumably, rum into a cup; however, at about that time a patron entered the premises, apparently recognized Officer Chades as a police officer, and, after he spoke with the owner (Juana Angeles) at the counter, the waitress stopped pouring and returned to the table to inquire whether they wished to order food. The officers declined and, despite their request, they were not served the rum and coke. Officer Chades observed a lot of activity behind the counter as employees began moving various objects. Consequently, realizing he had been identified, Officer Chades called for his back-up and shortly thereafter Sergeant Merle Boyer of the Medley Police Department and Special Agent John Cobban of the Division of Alcoholic Beverages and Tobacco entered the licensed premises. Upon inspection, one 1.75 liter bottle of Smirnoff Vodka, an alcoholic beverage not authorized to be sold on the licensed premises, was seized from the kitchen area. Immediately outside the back door several other bottles were found, including Johnnie Walker Scotch and Jose Cuervo Tequila, which contained alcoholic beverages not authorized for sale on the licensed premises.
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 charges set forth in the Administrative Action and imposing a civil penalty in the total sum of $1,500 for such violations, subject to Respondent's option to substitute a period of suspension in lieu of all or a portion of the civil penalty. DONE AND ENTERED this 17th day of July, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1998.
The Issue Whether Respondent violated Section 562.12(1), Florida Statutes, by selling alcoholic beverages in a manner not permitted by its license and, if so, the penalties that should be imposed.
Findings Of Fact The Respondent, Sunny South Lodge, No. 671, holds license number 60-000784, series 11-C, authorizing it to sell alcoholic beverages on the premises of Sunny South Lodge No. 671, located at 23 Southwest 9th Avenue, Delray Beach County, Florida (the licensed premises). At the time of the formal hearing, Sammie L. Joseph was the President and Exalted Ruler of Sunny South Lodge No. 671. Based on a complaint from the Delray Beach Police Department, Petitioner initiated an investigation on November 8, 1996, to determine whether Respondent was selling alcoholic beverages in a manner not permitted by its license. On December 20, 1996, Johnnie Wilson, a Special Agent employed by Petitioner, went to the licensed premises to investigate alcoholic beverage sales to nonmembers. Agent Wilson entered the premises and paid a $3.00 entrance fee. When he paid this fee, someone stamped his hand with a mark that was not legible. The stamp was to identify patrons who had paid the cover charge. Agent Wilson was not a member of the club or a guest of any member of the club. At no time did Agent Wilson represent himself as being a member of the club or as being the guest of a member. Agent Wilson purchased from a bartender inside the premises two alcoholic beverage drinks, each containing Tanqueray gin. Agent Wilson paid $4.00 for each drink. No one, including the bartenders inside the premises, asked Agent Wilson whether he was a member of the club or the guest of a member. On January 10, 1997, Special Agent Wilson returned to the licensed premises as part of his investigation. Agent Wilson entered the premises, paid a $2.00 entrance fee, and signed a fictitious name in a spiral notebook. Agent Wilson was not a member of the club or a guest of any member of the club. At no time did Agent Wilson represent himself as being a member of the club or as being the guest of a member. Agent Wilson purchased from a bartender inside the premises two alcoholic beverage drinks, each containing Tanqueray gin. Agent Wilson paid $4.00 for each drink. No one, including the bartenders inside the premises, asked Agent Wilson whether he was a member of the club or the guest of a member. Respondent holds an alcoholic beverage club license issued pursuant to Section 565.02(4), Florida Statutes, which authorizes the club to sell alcoholic beverages only to members and nonresident guests. Respondent has had three prior administrative actions filed against its alcoholic beverage license for violation of Section 562.12(1), Florida Statutes, in 1994, 1995, and 1996. All three prior administrative actions were settled through the payment of a civil penalty. The Division has standard penalty guidelines for violations of the alcoholic beverage law which are set forth in Rule 61A-2.022, Florida Administrative Code. The Division's standard penalty for a fourth occurrence violation of Section 562.12(1), Florida Statutes, is revocation of licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's alcoholic beverage license number 60-00784, series 11-C, be revoked. DONE AND ENTERED this 23rd day of October, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1997
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 The central issue in this case is whether the Respondent is guilty of the violations alleged in the Emergency Order of Suspension; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to this matter, the Respondent, Robert L. Seamans, held alcoholic beverage license no. 23-00987, series 4-COP, for the licensed premises located at 11425 S.W. 40th Street, Miami, Dade County, Florida, known as the Lucky Lady. Respondent, age 64, has held alcoholic beverage licenses in the states of New York or Florida since 1963. Respondent has never been charged or reprimanded for a beverage law violation until these proceedings. At all times material to this case, the Respondent employed a barmaid at the Lucky Lady who was known as "Stella." Also present at the Lucky Lady during relevant time periods was a drifter known to the bar patrons as "Tom". In exchange for food and/or the use of the bar kitchen, Tom assisted the barmaids by carrying out trash, stocking the beer cooler, or filling the ice bins. Although Tom was not an employee at the Lucky Lady, he, like many of the regular patrons, had unrestricted use of the Lucky Lady's kitchen area. Sometime prior to April, 1990, a bar located near the Lucky Lady was closed by the Department following an investigation and a determination that controlled substances were being either sold or possessed on the licensed premises. Respondent was aware of the action taken to close the local bar and was further aware that undesirable persons from that bar might attempt to patronize the Lucky Lady. Respondent had considered joining the Department's Responsible Vendors Program but did not. Respondent's policy was to exclude any customer suspected of improper conduct whether related to drugs or other inappropriate activities. To effect that policy Respondent maintained a "barred" list which listed those individuals either by name or description who were not welcome at the Lucky Lady. Employees were instructed to request any person on the barred list to leave the facility. In the event such person refused, the police were to be summoned. On numerous occasions not described below, patrons of the Lucky Lady have observed Respondent escorting persons from the bar who were suspected of, or were known to have exhibited, improper conduct. Respondent relied on his wife, Tanya, to assist him to monitor the interior areas of the Lucky Lady. It was Mrs. Seamans' custom to remain in the licensed premises throughout the evening hours and to watch for any improper conduct. If she observed anything suspicious, she would either report the activity to her husband or to an employee for further investigation and/or action. Unfortunately, Mrs. Seamans sustained a broken hip on April 29, 1990, and was unable to supervise the licensed premises after that date. The Respondent did not obtain a replacement to perform Mrs. Seaman's monitoring function. During May, 1990, Vincent Weiner, a law enforcement investigator employed by the Department, conducted an undercover narcotics investigation of the Lucky Lady. To effect his purpose, Mr. Weiner assumed the name "Vinnie Capio" and began to patronize the licensed premises. On May 5, 1990, Mr. Weiner and a confidential informant went to the Lucky Lady and asked Stella if cocaine were available. Stella directed the two men to the restroom. Once there, they proceeded to complete the transaction with Tom based upon the price which had been negotiated with Stella ($25.00). On this occasion, in exchange for the $25.00, Mr. Weiner received a clear baggie containing a substance which was later analyzed and found to be cocaine. On May 8, 1990, Mr. Weiner returned to the Lucky Lady and again inquired if cocaine were available for purchase. On this date, Stella went to the kitchen and returned with a packet which was exchanged with Mr. Weiner across the bar counter for $25.00. This packet was later analyzed to be cocaine. At all times when Mr. Weiner was seated at the bar counter, other patrons were also present at the counter during the course of the transactions. Mr. Weiner attempted to make a second purchase of cocaine on May 8, 1990. Similar to the prior transaction of that date, Stella went to the kitchen but returned with a written message for Mr. Weiner which she handed to him (instead of another packet). Tide message stated, "he's OUT he got rid of all of them already." Stella did not identify the "he" noted in the message. On May 15, 1990, Mr. Weiner purchased two packets of cocaine at the Lucky Lady. During the first transaction, Stella advised Mr. Weiner to enter the kitchen where he met Tom. Tom then took a packet from an envelope on the kitchen shelf and exchanged it for $25.00. Later in the evening, Mr. Weiner gave $25.00 to Stella while Tom removed another packet from the envelope and handed it to the investigator. This second exchange also took place in the Lucky Lady kitchen. Both of the packets purchased on this date were later analyzed and found to be cocaine. On May 18, 1990, the investigator returned to the Lucky Lady and purchased two packets from Stella and Tom. Again, the exchange took place within the kitchen and the amount for these transactions totalled $50.00. The substance obtained on this date was later analyzed and found to be cocaine. On May 22, 1990, Mr. Weiner was seated at the bar when Stella asked him if he would be needing anything that evening. The investigator placed $25.00 on the bar while Stella went to her purse (located behind the bar counter) and retrieved a packet which she then exchanged for the money. This transaction took place in front of the other patrons seated at the bar. Later in the evening, in the same manner as described above, Mr. Weiner purchased a second packet from Stella. Both of the packets obtained on this date were later analyzed and found to be cocaine. On May 29, 1990, Stella was again behind the bar at the Lucky Lady. On this date, Mr. Weiner negotiated for one packet (which she obtained from her purse located within the bar area) in exchange for $25.00. This packet was later analyzed and found to be cocaine. The Respondent was present within the premises at the Lucky Lady during at least one of the transactions described above. There is no evidence that Respondent was personally involved in the exchanges nor that he was aware of the sales. The Respondent does not dispute that the substance purchased by Mr. Weiner on each of the occasions described above was cocaine. During the course of the investigation Mr. Weiner observed video poker games located within the licensed premises. The games were coin operated and required the player to choose a hand for five card draw poker. By discarding any or all of his original hand, the player attempts to, by the chance of the game, receive a winning hand. The game awards points for Winning hands and subtracts points for losing hands. If a player accrues more points than he paid for, he finishes ahead of the machine. On May 22, 1990, Mr. Weiner finished playing the video poker game with a total of 36 points. That total was 16 more than he had originally purchased. Mr. Weiner consulted Stella regarding the results and she wrote his name and the point total on a piece of paper which she then placed near the cash register. On May 23, 1990, Mr. Weiner returned to the Lucky Lady and requested his "mail." He intended to obtain his winnings related to the video game he had played the day before. He received $9.00 which he believed was the amount he was due for accruing the 36 points. No other explanation as to why Mr. Weiner would receive $9.00 from the bar (except in connection with video game results) was suggested by either party. On May 31, 1990, an Emergency Order of Suspension was executed by the Director of the Division of Alcoholic Beverages and Tobacco. That order was served on the Respondent on June 1, 1990, and the licensed premises have been closed since that time. On June 1, 1990, an inspection of the Lucky Lady premises was conducted by agents of the Department. The Respondent had keys to the video poker games described in Paragraphs 16 and 17.
Recommendation Based on the foregoing, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order revoking the Respondent's alcoholic beverage license no. 23-00987, series 4-COP, for the premises located at 11425 S.W. 40th Street, Miami, Dade County, Florida. RECOMMENDED this 17th day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3447 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 3 are accepted. To the extent the drug transactions are outlined in findings paragraphs 7 through 13, the Department's paragraphs 4 through 12 are accepted; otherwise rejected as irrelevant. To the extent the video poker games are addressed in findings paragraphs 16 and 17, the Department's paragraphs 13-15 are accepted; otherwise rejected as irrelevant. Paragraphs 16 through 18 are accepted. But see also finding paragraphs 3 and 4. Except as addressed in finding paragraph 2, paragraph 19 is rejected as irrelevant. Paragraph 20 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as irrelevant, comment or argument not constituting a factual finding. Paragraph 5 is rejected as recitation of testimony. The video poker games were games of chance in that the machine, of its own design (not a player's choosing) dictated the hand received by the player. Paragraphs 6 through 9 are accepted. It is accepted that Respondent did not personally engage in the illegal sales recounted in the order; otherwise, paragraph 10 is rejected a irrelevant, argument or comment. Paragraphs 11 and 12 are accepted. COPIES FURNISHED: Henry A. Amoon Continental National Bank Building Suite 408 400 Southwest 107th Avenue Miami, Florida 33174 John B. Fretwell Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Respondent, the holder of a license to sell alcoholic beverages, sold an alcoholic beverage to a minor as alleged in the Administrative Action dated June 17, 1997, and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Mahmoud Mohamed, was doing business as Kwik Stop, which is a convenience store located at 1200 Broadway, Riviera Beach, Florida. Respondent holds license number 60-02476, series 2APS, which authorizes him to sell alcoholic beverages at his business location (the licensed premises). On June 13, 1997, the Division initiated a general investigation to determine whether persons under the age of 21 were being sold alcoholic beverages by licensees of the Division. As part of that general investigation, two special agents employed by the Petitioner and an investigative aide employed by the Petitioner made a random stop at the licensed premises between 8:30 p.m. and 9:00 p.m. One of the special investigative agents was Andrew Panzer, an experienced law enforcement officer. The other special agent was Agent Panzer's partner, who did not testify. The investigative aide was Casey Fand, a seventeen-year-old high school student. The special agents instructed Mr. Fand to enter the licensed premises and to attempt to purchase a beer. Mr. Fand entered the premises first, and shortly thereafter, Mr. Panzer entered the store. The other agent remained outside the premises. Mr. Fand went to the cooler, selected a 12-ounce can of Budweiser beer, and walked to the counter where Respondent was working. Mr. Panzer selected a soft drink and followed Mr. Fand to the counter. Mr. Panzer stood behind Mr. Fand and was in position to observe and hear what transpired between Mr. Fand and the Respondent. There is a dispute in the record as to what happened next. Respondent testified that when Mr. Fand came to the counter with the beer, Respondent asked him for identification. Respondent further testified that Mr. Panzer then took the beer from Mr. Fand. Respondent testified that Mr. Panzer paid for the beer and the soft drink. The testimony of Mr. Fand and Mr. Panzer conflicted with Respondent's testimony. Both Mr. Fand and Mr. Panzer testified that Respondent never asked Mr. Fand for identification and that Mr. Fand paid for the beer and left the store. They both testified that Mr. Panzer thereafter paid for the soft drink and left the store. Mr. Panzer testified that after he conferred outside with his partner and Mr. Fand, he re- entered the premises, advised Respondent of the violation, and issued him a notice to appear. In resolving the conflicts in the evidence, it is determined that the clear and convincing testimony of Mr. Fand and Mr. Panzer is more credible than that of the Respondent. In reaching this conclusion, the undersigned has considered the demeanor of the witnesses, the training and experience of Mr. Panzer, and the fact that neither Mr. Panzer nor Mr. Fand has an apparent motive to fabricate evidence. Based on the more credible testimony, it is found that on June 13, 1997, Respondent sold a beer, which is an alcoholic beverage, to a minor, Mr. Fand, without asking for identification. Respondent's license has not been previously disciplined by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that incorporates the findings of fact and conclusions of law contained herein. It is further recommended that the Final Order impose an administrative fine against Respondent in the amount of $1,000 and suspend his license for a period of seven days. DONE AND ENTERED this 5th day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1997. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mark R. Hanson, Esquire 415 Fifth Street West Palm Beach, Florida 33401 Captain Debbie Beck 400 North Congress Avenue, Suite 150 West Palm Beach, Florida 33401 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
