The Issue This case concerns the issue of whether Respondents' beverage license should be suspended or revoked or otherwise disciplined for sale of alcoholic beverages to a minor. At the formal hearing, the Petitioner called as witnesses Ervin A. Hooper, Patricia Perkins, Christine Ellis, Paul C. Davis, and John Sokol. Petitioner offered and had admitted into evidence one exhibit. Respondent Richard N. Jiosne testified on behalf of Respondents and Respondents also called John Hanks as a witness. Respondents offered and had admitted two exhibits. Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with the findings and conclusions in this order, they were rejected as being not supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact At all times relevant to these proceedings, the Respondents Richard N. and Ann N. Jiosne were the holders of beverage license No. 39-186, Series 2APS. The license is issued to a drive-through beverage establishment located in Brandon, Florida, and known as the Beverage Castle. The licensed premise is a drive-through facility which sells beer, along with other grocery items and sundries. The Beverage Castle is operated by Mr. and Mrs. Jiosne, along with their son and an employee named John Hanks. Late in the afternoon or early evening of July 22, 1983, Patricia Perkins and Christine Ellis drove into the Beverage Castle for the purpose of buying beer. They drove in and stopped and a young boy that appeared to be between 12 and 14 years old came to the car and asked what they wanted. The driver, Patricia Perkins, told him that they wanted a six pack of Michelob beer and he immediately went to a cooler and removed a six pack of Michelob beer and handed it to an older gentleman. The older gentleman then handed the beer to Patricia Perkins and collected her money for the beer. At no time was Patricia Perkins asked for identification. She had not purchased beer at this establishment previously. The young boy was Ritchie Jiosne, the son of Mr. and Mrs. Jiosne, the owners. The older gentleman was John Hanks, the evening manager of the Beverage Castle. On July 22, 1983, Patricia Perkins was 16 years old and her date of birth is December 30, 1966. The passenger in the automobile, Christine Ellis, at the time of the purchase was 17 years old and her date of birth is December 28, 1965. Prior to Patricia Perkins and Christine Ellis entering the Beverage Castle, a deputy of the Hillsborough County Sheriff's Department had had the licensed premises under surveillance. He had observed several cars drive through with individuals who appeared to be young purchasing beer without being required to show identification. The officer also observed the purchase made by Patricia Perkins and Christine Ellis and observed no identification being shown by Patricia Perkins to either of the individuals working at the Beverage Castle that evening. The owners have a policy against selling alcoholic beverages to minors. There is a sign posted next to the register which states: LOOK WE ABSOLUTELY DO NOT, WILL NOT, AND REFUSE TO SERVE ANYONE!, WHO IS ASKED AND DOES NOT HAVE PROPER I.D. HAVE YOUR CARD READY. The employees have been instructed to not serve alcoholic beverages to minors and to check identification. The Beverage Castle has a reputation within the high school students of Brandon, Florida, as a place where minors can buy beer. A prior violation was brought against the Respondents' license within the past year for sale of alcoholic beverages to a minor. That case resulted in recommended dismissal by the Hearing Officer and the Director of the Division of alcoholic Beverages and Tobacco adopted that recommendation and dismissed the case.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered finding the Respondents guilty of the charge as set forth above and imposing a civil penalty of $150.00. DONE and ORDERED this 8th day of June 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 8th day of June 1984. COPIES FURNISHED: Louisa Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. Patrick McElroy, Esquire Suite 200 - Rutland Bank Building 1499 Gulf to Bay Boulevard Clearwater, Florida 33515 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent holds alcoholic beverage license no. 39-651, Series 4-COP, which applies to its business known as Library Lounge, located at 10924 Nebraska Avenue, Tampa, Florida. Respondent was so licensed at all times relevant to this proceeding. Tampa Police Department Detective Robert Ulriksen was in the licensed premises in an undercover capacity during November and December, 1980. On November 30, he purchased three grams of cocaine from the dancer-employee Lila Colvert. The purchase was made openly and involved at least one other person who gave Colvert the packet which was later identified as cocaine. Ulriksen paid Colvert $25 for the packet. Tests performed by the Florida Department of Law Enforcement Crime Laboratory (FDLE) estab1ished that the substance purchased by Ulriksen was, in fact, cocaine. Ulriksen purchased three purported Quaalude tablets from the dancer- employee Barbara Ann Smith for ten dollars during a visit to the licensed premises on December 2, 1980. Tests performed by FDLE established that the tablets were Quaaludes (methaqualone) Ulriksen again visited the licensed premises on December 5, 1980. On this occasion he purchased three tablets from the dancer-employee Lila Colvert, which she represented as Quaaludes. FDLE tests established that these tablets were Quaaludes. On December 7, 1980, Ulriksen was again in the licensed premises. On that occasion he purchased four tablets, that were later determined to be quaaludes by FDLE. He purchased these tablets for $12 from the dancer-employee Barbara Ann Smith. Ulriksen visited the licensed premises on December 9, 1980, and purchased four tablets which were later determined by FDLE to be Quaaludes. Ulriksen purchased these tablets from the dancer-employee Brenda Sue Parr for $15. On December 12, 1980, Ulriksen was in the licensed premises and discussed a purchase of quaaludes with the dancer-employee Tammy Yates. She took Ulriksen to the dancers' dressing room where she removed five Quaaludes from her purse. Ulriksen paid her $15 for these tablets, which were determined to be Quaaludes by FDLE. The dressing room transaction was observed by the manager, Gaskins, who told Ulriksen to leave. The testimony of FDLE personnel and Tampa Police Department employees who secured the substances purchased by Ulriksen established that this evidence was properly controlled throughout the investigation. There was no indication whatsoever of tampering or other improper handling of the substances. In mitigation of these charges, Respondent established that it has cooperated with the Tampa Police Department in the investigation of its employees and third persons who were involved in the drug trafficking. Subsequent to the arrest of these employees, Respondent adopted preemployment screening procedures and currently has no female entertainers employed in the licensed premises.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of all charges contained in the Notice to Show Cause/Administrative Complaint and suspend Respondent's alcoholic beverage license no. 39-651 for a period of thirty days. DONE and ENTERED this 19th day of July, 1982 at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1982.
Findings Of Fact Bay Street, Inc., trading as Howard's G" String, is located at 102 E. Bay Street, Jacksonville, Florida. This facility has been licensed by Petitioner at all times relevant to these proceedings, (Beverage License No. 269l9, Series 4-COP) Case No. 81-1825 contains ten counts, five of which were voluntarily dismissed by Petitioner. The remaining counts involve alleged lewd and lascivious acts and an alleged offer to commit prostitution. These charges were based on an undercover investigation by the Jacksonville Sheriff's Office in May, June, August and September, 1980. The testimony of Officer Beacham established that on May 8, 1980, the dancer Karen Wood rubbed a male patron's groin with her buttocks and the dancer Rosetta Smith allowed a male patron to rub her groin area. This conduct took place while the dancers were performing for individual customers. In both cases, their breasts were bare and in close proximity to the patrons' faces. The testimony of Officer Bennett established that on June 26, 1980, the dancer Catherine E. Maryon permitted a male patron to fondle her groin area and to fondle her nude breasts. This conduct continued over a period of about five minutes while Maryon was performing for the patron. The testimony of Officer Hall established that on August 30, 1980, the dancer Darlene Veldon Hughes allowed a male patron to massage her genital area and the insides of her legs while she was performing for him. She wore a bikini brief, but was otherwise nude during this procedure. The testimony of Officer Perret established that on September 2, 1980, the dancer Trudy A. Blincoe offered to engage in sexual intercourse with him for $100. This was established by the nature of their discussion and her statement that she would give "no oral sex, just straight sex." Petitioner conducted a separate investigation of Respondent in February, 1981, through its beverage officers who visited the licensed premises in undercover capacities. This investigation culminated in the 29 charges contained in Case No. 81-1824. The testimony of Beverage Officer Johnson established that the dancer Belinda asked him to buy her a drink on February 11, 1981. The drink was delivered by the bartender-waitress, Kathy, who received the money for the drink. Kathy also approached Johnson and the dancer Laura on that date, and asked if Laura wanted another drink. Laura then asked Johnson for a drink, which he purchased from Kathy. Johnson's testimony further established that the dancer Ursala Kadlecik asked him to purchase a drink for her on February 27, 1981. The testimony of Beverage Officer Arguelles established that on February 18, 1981, the dancer Barbie asked him to buy drinks for her on two occasions. Arguelles purchased the drinks as requested. The testimony of Beverage Officer Lachman established that on February 11, 1981, the dancers Susan and Elizabeth each asked him to buy drinks for them, and on February 14 and 27, 1981, Susan again asked Lachman to buy drinks for her. On February 18, 1981, the dancers Karen, Angie and April each asked Lachman to buy drinks for them. He purchased the drinks as requested on each of these occasions. The testimony of Beverage Officer Balaguer established that on February 12, 1981, the dancer Belinda asked him to buy her a drink and on February 18, 1981, the dancer Laura asked him to buy her a drink. He purchased the drinks as requested. The testimony of Beverage Officer Sams established that on February 25, 1981, the dancer Belinda asked him to buy her a drink. She repeated the request and Sams purchased the drink. The testimony of Beverage Officer Johnson established that on February 12, 1981, the dancer Marty approached him and performed her dance at his table. During this procedure, she rubbed his hand against her groin and also held it against her nude breast. The testimony of Beverage Officer Lachman established that the dancer Susan performed dances at his table on February 25 and 27, 1981. On each occasion she rubbed her nude breasts against his face. The testimony of Beverage Officer Johnson established that on February 5, 1981, the dancer Susan suggested a "date" to him. She stated that the price was $75 for the night and $25 as a penalty for her to leave the bar. She also stated that they would go to a motel and she would do "anything he wanted." Johnson's testimony further established that on February 11, 1981, the dancer Lisa suggested that she and Johnson go to a "party" at a motel. She stated that the price for this would be $30 for the bar plus either $50 for one- half hour, $100 for an hour or $200 for the whole-night. She also said Johnson could do "anything" so long as he did not "get rough." The testimony of Beverage Officer Arguelles established that on February 28, 1981, the dancer Lucy Brightwell offered to "go out" with him. She stated that the charge for this service was $100, which included $25 to leave the bar. She told Arguelles that he could do anything he wanted except "the back door." She also motioned to her vaginal area and stated, "straight fuck." The testimony of Beverage Officer Lachman established that on February 27, 1981, he discussed leaving the bar with the dancer Ramona Strickland. The discussion involved three dancers leaving with the three undercover beverage officers (Lachman, Sams and Rowe) . Strickland stated that the price would include $25 for each dancer to leave the bar and a total charge of $248. Lachman later paid the bartender-waitress, Kathy, $88 for the three dancers to leave the bar. The testimony of Beverage Officer Sams established that he discussed going to a hotel room with the dancer Belinda on February 27, 1981. She stated that the charge for this would be $25 to leave the bar and $50 per one-half hour for each dancer. The testimony of Beverage Officer Rowe established that on February 25, 1981, he discussed "going out" with the dancers Laura and Belinda. He asked Laura if he would "get his money s worth," and she said that he would and that she was "good in bed." Rowe continued the discussion on February 27, 1981, when he asked Laura if the "deal was still on." She stated that it was and asked him if he had made room arrangements. Laura also stated that she did not want "to fuck" in the same room with others. Rowe also discussed the transaction with the bartender-waitress, Kathy, who told him to meet the dancers at the side door and to have them back in 30 minutes. Although no records were produced to establish that the dancers identified herein were employed by Respondent, the fact of employment was evident from the control exercised over them by the bartender-waitress, their costumes, their periodic dances on stage and their movements from one customer to another while performing individual dances and collecting fees for this service. Testimony in this regard was given by all Petitioner's witnesses and was not rebutted by Respondent. It was not shown that the identification of some dancers by their first names or nicknames only created any ambiguity in the charges or prejudice to Respondent.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner find Respondent guilty as charged in Counts l through 7, 9 through 17, 19, 21 through 24 and 26 through 29, Case No. 81-1824, and Count 9, Case No. 81-1825. It is further RECOMMENDED that Petitioner dismiss all other charges against Respondent. It is further RECOMMENDED that Petitioner suspend Respondent's alcoholic beverage license no. 26-919 for a period of 45 days. DONE and ENTERED this 26th day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1982.
The Issue Whether Respondent sold alcoholic beverages to a person under the age of 21 in apparent violation of Subsection 562.11(1)(a), Florida Statutes.
Findings Of Fact Based on my observation of the witnesses, their demeanor while testifying and the entire record compiled herein, the following relevant factual findings are made. During times material, Respondent, Rasem Mohammad Awadallah, held license number 63-02202, series 2-APS authorizing the sale of alcoholic beverages at Sam's Big Apple (Sam's) which is situated at 110 Manor Drive, Bartow, Polk County, Florida. Respondent is the owner of Sam's. On February 13, 1992, law enforcement officers from the Bartow Police Department conducted an investigation of businesses, including Respondent's, that were allegedly making sales of alcoholic beverages to persons under the age of 21. The investigation was prompted by several citizen complaints alleging that Respondent and other businesses were selling alcoholic beverages to underaged persons at their licensed premises. On February 13, 1992, Lieutenant James Byrd and Patrolman Michael S. Marcum went to Sam's to investigate the complaints of alcoholic beverage sales to minors. Patrolman Marcum's date of birth is October 24, 1972. As such, he was 19 years of age on February 13, 1992. Lieutenant Byrd instructed Patrolman Marcum to enter Sam's and attempt to purchase alcoholic beverages. He was instructed that if at any time identification was requested of him, he would produce his driver's license which displayed his correct date of birth. Patrolman Marcum was further instructed that if he was asked his age by Respondent or clerks at Sam's, he would truthfully answer. Patrolman Marcum entered Sam's on February 13, 1992, retrieved a six- pack of "Milwaukee's Best Beer" from the cooler and approached the sales counter. Patrolman Marcum purchased the beer from Respondent who made the sale without asking whether he was at least 21 years of age or for identification which would show his age. The sealed cans of beer that Patrolman Marcum purchased from Respondent were clearly marked as alcoholic beverages. Upon exiting the premises, Patrolman Marcum and Lieutenant Byrd rendezvoused with Detective Mike Hamil approximately fifteen minutes thereafter. Patrolman Marcum was provided a physical description of the person from whom he had purchased the beer and that person was later identified as Respondent. At the hearing herein, Patrolman Marcum identified Respondent as the person who sold him the six-pack of beer on February 13, 1992 at Sam's. Respondent was arrested approximately one month after the February 13, 1992 date of sale. He was later tried and convicted of selling an alcoholic beverage to a person under the age of 21. The delay in arresting Respondent was based on the delay in obtaining an arrest warrant for Respondent's arrest and based on ongoing investigations by the Bartow Police Department. Detective Hamil feared that an arrest of Respondent early in the course of the investigation would alert other area vendors that the Bartow police were engaged in an investigation which would possibly dissuade any other licensed vendors predisposed to such violations. Respondent denies having sold alcoholic beverages to any minors on February 13, 1992 to include Patrolman Marcum. However, Respondent admits that he was at Sam's on that date for approximately one hour. It is more likely than not, that Respondent sold alcoholic beverages to a minor, Patrolman Marcum, on February 13, 1992 as alleged in the notice to show cause filed herein. Respondent has not been the subject of prior disciplinary action by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a Final Order finding that Respondent violated Section 562.11(1)(a), Florida Statutes and that he be ordered to pay a civil penalty of $500.00 to the Division within thirty days of the entry of the Department's Final Order and that Respondent's license number 63-02202, series 2-APS, be suspended for a period of ten days. 1/ DONE AND ENTERED this 14th day of June, 1993, in Tallahassee, 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 14th day of June, 1993.
The Issue The issues to be resolved in this proceeding concern whether the Respondent's beverage licensure should be subjected to sanctions for allegedly selling alcoholic beverages to a minor and what if any penalties should be imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating licensure, and practice under that licensure, of alcoholic beverage-selling entities in the State of Florida, including administration of the laws and rules related to the selling of alcoholic beverages by restaurant businesses. The Respondent is an entity licensed and domiciled in the State of Florida and authorized to sell alcoholic beverages under license number 55-00306, Series 2-COP. The Respondent is subject to the Division's regulatory jurisdiction. The subject license allows the Respondent to make sales "by the drink" for consumption on the premises at the restaurant business located at 1766 S. Eighth Street, Fernandina Beach, Florida. On October 22, 2002, Ms. Deidre Kaye Miller, then 18 years of age, was employed as an I.A. by the Petitioner Agency for the purpose of attempting to purchase beer at the Respondent's restaurant. She was paid a total of $35.00 for her services as an undercover operative that day by the Division. She was given instructions by Agent Edwards and Agent Maxwell to attempt to purchase an alcoholic beverage from the Respondent. Ms. Miller was told that if asked for identification she was to show her valid Florida Driver's License, if asked her age to tell her correct age and not to engage in any extensive conversation with anyone. On October 22, 2002, Ms. Miller entered the restaurant and walked to the left of the entrance where the bar was located. A waitress asked what she wanted and she told her she wanted a Corona (Beer). After Ms. Miller ordered the beer from the waitress the owner and Respondent Mr. Wong came over and asked for her identification. She provided her driver's license as an I.D. to Mr. Wong. As he was checking her driver's license the waitress, Tabitha Cornett, opened the Corona and set it on the counter so that it would be ready when Mr. Wong approved giving Ms. Miller the beer. The point on the bar where the beer was placed was approximately 16 feet away from where Mr. Wong and Ms. Miller were having the conversation about her I.D. Mr. Wong viewed Ms. Miller's Driver License I.D. for 30 or 45 seconds. The driver's license had her correct name and date of birth, which was in 1984, and a statement printed on the license which said "Under 21 until 09-02-05." Mr. Wong allowed the beer to be served to Ms. Miller. Ms. Miller took the beer and placed it on a table near the bar. She then indicated to the waitress that she was going to call friends to meet her and walked outside the restaurant, leaving the beer on the table. In restaurant sales situations, IAs are instructed to depart the premises once they have been served alcohol. Generally payment will not be tendered because, in restaurant situations, the law and licensure calls for consumption on the premises and it is customary to consume the alcohol and pay for at the end of one's stay at the restaurant. In the instant situation neither Ms. Miller nor anyone else ever paid for the beer in question. Mr. Wong acknowledged in a due diligence statement taken at 5:30 p.m., on the day in question October 22, 2002 (in evidence as Petitioner's Exhibit four) that he checked the I.D. but he wasn't wearing his glasses and he thought it said that Ms. Miller was born in 1964. He asked her, "You were born in 64?" He said in his statement that Ms. Miller did not reply to him and then he states (in his due diligence statement) that he told her that she was too young for that I.D. and again she said nothing. He again asked her if this was her I.D. and she said nothing. He handed it back to her. He then said in the statement: "I did not want to insult someone so I allowed it served." In other words he questioned whether she was old enough based upon the I.D. he saw; believing it to say 1964 because he did not have his glasses on, but also believing that she appeared too young for that I.D. Ms. Miller left the premises and Agent Edwards and Agent Maxwell entered the premises and informed Mr. Wong that he had just allowed service of alcohol to a minor. Thereafter Mr. Wong was placed under arrest handcuffed, and taken to the Nassau County Jail. Mr. Wong had never had any beverage-related offense on his record prior to that time. No investigation or prosecution concerning his business had ever occurred up to that point. A criminal prosecution was instituted against him concerning this same incident and facts, which resulted in a jury verdict of acquittal. The totality of the evidence shows that although Mr. Wong did not actually serve Ms. Miller, he did allow a beer to be served to her. She was under 21 years of age. Mr. Wong testified that even though one person checks identification, any employee can open a beer and place it on the counter or service bar. Ms. Cornett did so in this case, placing the beer at the far end of the service bar from where Mr. Wong and Ms. Miller were conversing concerning her I.D. This allows the beer to be ready once the person checking the I.D. authorizes the sale. In the situation at hand, Ms. Cornett opened the beer, placed in on the bar and Mr. Wong then went through the door away from the bar into the main part of the restaurant. Ms. Miller, the I.A., then took the beer from the bar and placed it on the table and told Ms. Cornett that she was going outside to meet her friends or to call her friends. After that occurrence the other agents named above came in, explained the situation to Mr. Wong, and arrested him during the course of which discussion he made the above-referenced statement. Mr. Wong never touched the beer in question and Ms. Cornett never actually physically handed it to Ms. Miller, but both Mr. Wong and Ms. Cornett allowed Ms. Miller to take the beer from the bar and place it on her table, thus taking the beer into her own custody and control at least temporarily, even though no money was exchanged in return for the beer.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, finding that the Respondent violated Section 562.11(1)(a), Florida Statutes, and that he be required to pay a $250.00 fine to the Division. DONE AND ENTERED this 31st day of July, 2003, in Tallahassee, Leon County, Florida. S COPIES FURNISHED: Christina Pardieck, Assistant General Counsel P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 31st day of July, 2003. Division of Alcoholic Beverage and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Gary Barker, Esquire Post Office Box 1177 Callahan, Florida 32011 Hardy L. Roberts, III, General Counsel Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Peter Williams, Director Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues for determination in this proceeding are: Whether Respondent sold alcoholic beverages on two occasions when the service of full course meals had been discontinued; Whether Respondent offered or allowed the operation of a football pool on the licensed premises; and If so, what disciplinary action is appropriate.
Findings Of Fact Arthur A. Peloso, doing business as Peloso's Spaghetti House, currently operates, and at all relevant periods was operating, under alcoholic beverage license number 59-129 SRX, Series 7-COP, a "special restaurant license." The premises are located at 1709 West Vine Street, Kissimmee, Florida. The premises consist of the main part of the restaurant, accessible by a door fronting the street; a lounge in the rear, accessible from the main restaurant and by a side door; and a kitchen, accessible to employees from both the lounge area and the main restaurant. The bar counter is located on the far end of the lounge, opposite the side entrance and adjacent to the kitchen. On September 22, 1986, at approximately 5:00 p.m., Beverage Agent Ronald P. Sullivan, visited the premises at the direction of his supervisor. The marquee in front read: "Restaurant Closed-Vacation. Lounge Open, 4-2." Sullivan entered through the side entrance and went back to the bar, where he was served a beer by the bartender, "Pat." Pat was serving drinks, mixing drinks and ringing up sales on the cash register. Sullivan asked what he could get to eat and Pat's response was, "popcorn." There was some conversation regarding the owner being on vacation and wanting to make some changes in the facility and that the kitchen was closed down. At the hearing, Sullivan identified Patrick Plunkett, also present, as the bartender. The same Beverage Agent returned to the licensed premises around 6:00 p.m. on September 25, 1986. Again, Pat was behind the bar and served him a beer. Again, Sullivan asked what he could get to eat and the response was, "popcorn." Pat also said he had a football pool that "Dale" who worked in a car lot helped him get going. Pat said it was Dale's idea and he pointed Dale out in the lounge. Pat pulled a sheet (Exhibit #3) from other sheets behind some whiskey bottles and showed Sullivan how to play. Sullivan filled it out and gave Pat $10.00. Sullivan returned on October 7, 1986. A woman identified as "Tina" was working behind the bar. Pat was not there. Sullivan asked Tina who won the football pool, and she replied that some guy at the car dealership won $350.00. Tina also told Sullivan that the restaurant had reopened after a three- week vacation, and a cook was on duty. On the occasions of his visits, Sullivan did not notice menus or meal set-ups on the tables in the lounge. He had to pass the tables to get to the bar, where he sat. He never tried to order food, as on the first two visits he had been told all they had was popcorn. On the third visit, he accepted the fact that the kitchen was open. He saw evidence of the football pool only on one occasion, the 25th of September; he did not see Arthur Peloso, or Peloso's son, the manager, on any occasion. In the three visits, Sullivan saw a total of six or seven people drinking in the lounge, but not eating. In his testimony, Patrick Plunkett admitted that he told Sullivan that only popcorn was available. The bartenders and waitresses are trained to cook and serve food and have been told to provide food to patrons when requested during business hours. Pat admitted that he did not serve food to Sullivan as the cook did not show up and he (Pat) was "too lazy to serve it." Pat also admitted that he assisted patrons in playing the football pool, but that he was doing it as a favor for a friend from the Pontiac dealership. This was a short-term arrangement and Pat did not receive a commission or any monetary gain from his participation. To Pat's knowledge, neither Peloso nor his son, the manager, were aware that food was not being served in the lounge during their vacation, nor were they aware that the football pool was being conducted. In his opinion, the Pelosos would have taken immediate corrective measures. This was confirmed by Arthur S. Peloso, Peloso's son, who serves as manager of the business. Their business is primarily food and they could not remain in business without the food. Their intent was that the lounge should serve as additional seating for the restaurant. He conceded that the restaurant was briefly closed, but insisted that the kitchen was never closed and the waitresses and bartender should have served food as they had been instructed. Captain Jack B. Wallace from the Division of Alcoholic Beverages and Tobacco described the policy of the agency with regard to investigations, enforcement and civil penalties for violations. The non-rule policy is to assess a $500.00 civil fine for a first-time offense. He said that the two counts relating to the sale of alcoholic beverages without food should be treated as a single violation. No testimony or other evidence of prior violations by Respondent was presented, and the two witnesses for Petitioner knew of none.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered by the agency, finding Respondent guilty of violation of Rule 7A-3.015, Florida Administrative Code, not guilty of violation of Section 561.29(1)(a), Florida Statutes, and assessing a civil penalty of $500.00. DONE and RECOMMENDED this 14th day of July, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0844 The following constitute my rulings on the proposed findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraph #1. Adopted in paragraph #3. Adopted in substance in paragraphs #4 and #7. Rejected as unnecessary Adopted in substance in paragraphs #4 and #7. Adopted in paragraph #5. Adopted in part (as to availability of only popcorn) in paragraph #5; otherwise, rejected as unnecessary. Rejected as immaterial. Adopted in substance in paragraph #5. Adopted in paragraph #6. Adopted in paragraph #12. Respondent's Proposed Findings of Fact #1 and #2 The essential facts proposed here are adopted in my findings of fact #3, #9, #10 and #11, however, these facts alone are not dispositive of the issues in the proceeding. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Arthur A. Peloso 1960 Southeast 19th Street Pompano Beach, Florida 33062 Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Findings Of Fact On March 25, 1983, Mr. Luther Thomas, petitioner in this case, who operates an automotive repair shop in Gainesville, Florida, entered the Respondent's local office and secured an Application for Alcoholic Beverage License (DBR Form 700-1) and the related Personal Questionnaire (DBR Form 710L). These forms were filled out, signed under oath by Petitioner and submitted to Respondent for processing on March 28, 1983. At the time the forms were submitted, the questionnaire had on it a question regarding whether the applicant had ever been arrested for or charged with a violation of a felony law or misdemeanor law of the State of Florida, any other state, or the United States, excluding minor traffic laws. This form was marked "No" by Petitioner. Whether he did it at the time of submittal or when it was brought to his attention by a beverage officer who came to his place of business is in question, but when it was done is immaterial. The fact remains that Petitioner stated "No" when in fact, according to his testimony at the hearing, he had been charged several times: once for failure to pay support, and twice for driving while under the influence. Also, in addition, in 1968, he appeared before a judge on an allegation of assault with intent to commit homicide, but was never arrested. He voluntarily reported to the courthouse without being placed under arrest, and the allegation was dismissed. However, since Petitioner could not state with any particularity what actually happened, and since Respondent did not produce any evidence of a charge or arrest, this incident is not considered as being reportable. The DWIs and the failures to pay support were not felonies at the time of commission. Sometime after the submission of the application, Beverage Officer Woodrow came out to Petitioner's place of business to do a sketch of the layout which was needed to process the application. During this visit, Woodrow indicated to Petitioner that they needed to talk about his arrest record. At this point, Petitioner responded to the effect that he "ain't never been arrested." The prior involvement for assault with intent to commit homicide was known to Respondent and considered at the time it issued him a prior beverage license in 1973 or 1974. Mr. Thomas felt that since he had not been arrested then, since the allegation had been dismissed, and since he had previously been issued a license with this information known to Respondent, there was no reason to list it again. This former license lapsed when Mr. Thomas went out of business after a heart attack. It was not disciplined or revoked by Respondent. The questionnaire form which Petitioner filled out contains, in the oath, the reference to Section 559.791, Florida Statutes (1981), which provides that a false statement in the questionnaire or application constitutes grounds for denial of a license. The "pending and undetermined criminal and felony charges" referred to in Respondent's letter of denial, according to Petitioner, related to three separate worthless checks. These charges were reduced to a misdemeanor and resolved by Petitioner making restitution. No jail time or fine was imposed. Mr. Thomas is presently facing misdemeanor charges in Alachua County, Florida, in violation of Section 837.06, Florida Statutes (1981) , based on the same alleged false statement in the questionnaire as are used as basis for denial of his license here.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner, Luther Thomas, doing business as Lake Road Beverages, be issued an alcoholic beverage license as applied for. RECOMMENDED this 14th day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 December, 1983. COPIES FURNISHED: Mr. Luther Thomas 2824 N.E. 12th Street Gainesville, Florida 32601 Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether petitioner's application to change its corporate officers should be denied because the proposed officer allegedly lacks good moral character.
Findings Of Fact The Village Zoo holds alcoholic beverage license no. 16-839, Series 4- COP SR, authorizing it to serve alcoholic beverages at its bar (the "licensed premises") at 900 Sunrise Lane, Fort Lauderdale, Florida. On September 22, 1982, the Village Zoo filed an application with DABT to change corporate officers by adding James C. Dowd as a vice president1. While this application was pending, James C. Dowd was employed as one of the managers at the Village Zoo. One of his duties was to help the bartender serve alcoholic beverages on an as-needed basis. On November 5, 1982, undercover Beverage Officer Tom Wheeler, 24, entered the licensed premises to investigate complaints of alleged sales of alcoholic beverages to underaged persons--persons under the age of 19. He paid a cover charge at the door, his identification was not checked. Inside, he saw 50-75 young patrons crowded in the area of the second floor bar. Two persons were tending bar, one of whom was James C. Dowd. Officer Wheeler saw two young patrons, William Esler, 17, and Kelly Heatherman, 18, approach the bar and ordered drinks from Mr. Dowd, who then served them two alcoholic beverages. (William Esler ordered and was served a Whiskey and Seven- up; Kelly Heatherman ordered and was served a Budweiser beer). Mr. Dowd served them these drinks without asking their age or checking their identification. When these two underaged individuals ordered the drinks, they were standing at the bar and in plain view of Mr. Dowd; they were neither standing behind others nor hidden from view. After Mr. Dowd served these two drinks, he was arrested and charged with the crime of serving alcoholic beverages to persons under the age of 19. When Kelly Heatherman and William Esler, the two underaged persons, entered the premises that evening, they paid a cover charge but their age was not questioned at the entry door. Neither was their identification checked. The Village Zoo has a reputation in the community as a popular gathering place for young people. Both William Esler and Kelly Heatherman had been there before. William Esler had been there twice, prior to the November 5, 1982, incident, and once since. His identification had never been checked, although he did not order a drink on his last visit. Kelly Heatherman had been there every week from approximately September (1982) to November 5, 1982. During most of his visits, he ordered alcoholic beverages. One time, his identification was checked at the door and he was turned away. Since the November 5, 1982, incident, he has returned to the Village Zoo a couple of times. James C. Dowd was aware of Heatherman's continued patronage of the Village Zoo and described Heatherman as a regular customer. Heatherman continued to order and was served alcoholic beverages during his visits to the Village Zoo after November 5, 1982. After November 5, 1982, Heatherman continued to enter the Village Zoo without having his identification checked, despite the fact he was identified to the Village Zoo and James C. Dowd, on November 5, 1982, as being under the legal age (19) to possess or consume alcoholic beverages. Both William Esler and Kelly Heatherman were, as of the date of the administrative hearing on this case, under the age of 19 years. James C. Dowd knew or should have known that Kelly Heatherman's consumption of alcoholic beverages served by the Village Zoo after November 5, 1982, was contrary to the Beverage Law. (This paragraph contains findings of fact which are in addition to those found by the Hearing Officer. Such additional facts are not contrary to those found by the Hearing Officer, rather they amplify the same and are supported by competent, substantial evidence in the form of sworn testimony of Kelly Heatherman, William Esler and James C. Dowd). The Village Zoo had an announced policy prohibiting the sale of alcoholic beverages to underaged persons and prohibiting their entry onto the licensed premises. To enforce this policy, two persons were posted at the entryway to check identification and collect cover charges from patrons. Peter Balcunas, and off-duty Fort Lauderdale policeman, was also hired to provide security and assistance to the door-checkers. He was ordinarily posted near the front door, outside the premises. Under this Village Zoo policy, the two door-checkers had the primary responsibility to check the identification of patrons and prevent underaged persons from entering the premises. All employees, however, had the duty to check the identification of any patron if there was any question or doubt about whether the individual was of drinking age. Both William Esler and Kelly Heatherman fall within this "questionable or doubtful" category. From their demeanor and outward appearance at hearing, it is difficult to determine their true age. Their faces are mature for their age and they could reasonably pass as 18, 19 or 20-year olds. On the evening of November 5, 1982, Kelly Heatherman and William Esler entered the premises, walking past the door-checkers and Officer Balcunas. They then proceeded to the second floor bar and ordered drinks from Mr. Dowd. Their age was not questioned and their identification was not checked. The Village Zoo's announced policy of forbidding sale of alcoholic beverages to minors, including steps taken to enforce it, compares favorably with those of similar businesses in the area serving alcoholic beverages. James C. Dowd, the person allegedly lacking in good moral character, has a reputation in the community as an honest trustworthy, hardworking and law- abiding man. He attends church regularly. His business associates view him as a man who honors his financial obligations and who has good moral character. Mr. Dowd does not recall serving alcoholic beverages to William Esler and Kelly Heatherman on November 5, 1982. There was a crowd of customers near the bar at the time, and he was helping the bartender serve drinks as quickly as possible. Nevertheless, in his haste, he violated the Village Zoo policy. He served alcoholic beverages to two youthful-looking persons whose age was difficult to determine, without inquiring as to their age or checking their identification. There is no evidence that he knowingly and intentionally sold alcoholic beverages to underaged persons. (Two sentences contained in the Recommended Order at this place, were deleted as such constitute conclusions of law, not of fact). Although there was evidence that the two underaged persons had been served alcoholic beverages at the Village Zoo prior to and after November 5, 1982, it was not shown that Mr. Dowd served them or that (as one of the managers) he was culpably responsible.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Village Zoo's application to change corporate officers be granted. DONE and ENTERED this 29th day of June, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in the notice to show cause and that his license number 26-2026 be suspended for a period of fifteen days. DONE and ENTERED this 15th day of July, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 15th day of July, 1983. COPIES FURNISHED: James N. Watson, Jr. Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joseph S. Farley, Jr., Esquire 350 East Adams Street Jacksonville, Florida 32202 Howard M. Rasmussen, Director Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether the Respondents' alcoholic beverage and tobacco license/permit number 74-00388 is subject to the assessment of a civil penalty, or should be suspended or revoked because of the sale of an alcoholic beverage to a person under the age of twenty-one years?
Findings Of Fact At all times relevant to this proceeding, the Respondents have been the holders of alcoholic beverage license/permit number 74-00388, series 2-COP, for the premises located at 4020 B Nova Road, Port Orange, Florida. At all times relevant to this proceeding, the Respondents were doing business as the Cheese and Specialty Corner (hereinafter referred to as the "Corner"). John T. Grothe is a full-time electrical engineer employed by General Electric. Mr. Grothe helped Oki Grothe, his wife, operate the business after working hours at General Electric and on his days off. Mrs. Grothe was primarily responsible for running the Corner. The Respondents had a policy of not selling alcoholic beverages to anyone under the legal drinking age. On September 4, 1987, Mr. Grothe was working at the Corner. Mr. Grothe was behind the counter near the front of the Corner. Detective Patrick Girvan entered the Corner on September 4, 1987. Detective Girvan was a Port Orange, Florida, police detective at the time but was not wearing his uniform. Shortly after Detective Girvan entered the Corner, Officer Heather Waskiewicz entered the Corner. Officer Waskiewicz was also a Port Orange police officer on September 4, 1987. Officer Waskiewicz was not wearing a uniform. Officer Waskiewicz, upon entering the Corner, went to the left of the Corner to a large wall cooler and began looking at the contents of the cooler. The area of the Corner where Mr. Grothe was located was not busy. Only Officer Waskiewicz, Detective Girvan and another Port Orange police officer who had entered the Corner were in the area where Mr. Grothe was working. There were other customers in another area of the Corner where Mrs. Grothe was working. Mr. Grothe asked Officer Waskiewicz if she needed any help. Officer Waskiewicz indicated that she did not. Officer Waskiewicz selected a sealed bottle labeled Florida Wine Cooler from the cooler and took it to the counter where Mr. Grothe was standing. Officer Waskiewicz paid Mr. Grothe for the Florida Wine Cooler and Mr. Grothe put it into a paper bag. On the label of the Florida Wine Cooler it was indicated that the bottle contained 6 percent alcohol. The first ingredient listed on the label of the bottle was orange wine. At no time did Mr. Grothe ask Officer Waskiewicz her age or ask her for proof of her age. Nor did Officer Waskiewicz make any representation to Mr. Grothe concerning her age. Officer Waskiewicz handed the paper bag with the sealed Florida Wine Cooler in it to Detective Girvan, who had witnessed the sale. Detective Girvan then notified Mr. Grothe that he had sold an alcoholic beverage to a person under the legal drinking age. Criminal charges relating to the sale were brought against Mr. Grothe. Officer Waskiewicz was born on January 11, 1968. On September 4, 1987, Officer Waskiewicz was nineteen years of age. Officer Waskiewicz was wearing black, high-heeled pumps and a black belt, a long-sleeve blouse and a skirt at the time of the sale of the wine cooler by Mr. Grothe. She described her dress as "casual" and as "appropriate for a work environment." Her hair was worn down on one side and in a ponytail on the other side. She wore some makeup. Mr. Grothe believed that Officer Waskiewicz at the time of the sale had the bearing, visage and general appearance of a woman over the age of 21 years. Officer Waskiewicz is sufficiently young enough in appearance, however, even at the age of 20 years, that it could not be concluded conclusively that she was 21 years of age or older. Officer Waskiewicz had never bean in the Corner prior to September 4, 1987, and had never purchased or attempted to purchase alcohol at the Corner prior to the purchase of the Florida Wine Cooler on September 4, 1987. The Corner was closed subsequent to September 4, 1987, and is no longer in operation. The Respondents have not been charged with any other violations relating to their beverage license. The Department has a policy of imposing a $1,000.00 administrative fine and a 20-day suspension of license on licensees for the first offense of selling alcoholic beverages to a minor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondents be found guilty of violating Section 562.11(1)(a), Florida Statutes. It is further RECOMMENDED that the Department suspend the Respondents' alcoholic beverage license for a period of twenty (20) days and impose a civil penalty of $500.00 on the Respondents. DONE and ENTERED this 15th day of November, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3080 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 7 and 11-14. The evidence failed to prove that Officer Waskiewicz purchased a "Seagram's Wine Cooler" (it was a Florida Wine Cooler) or that the label on the bottle indicated that the alcohol level was 4 percent (it was 6 percent). 3 11 and 16. 4 6 and 12. Summary of the Respondents' position. See finding of fact 15. See finding of fact 19. The Respondents' Proposed Findings of Fact The Respondents' proposed findings of fact have been accepted in paragraphs 1-5, 9, 11-12, 17 and 19. COPIES FURNISHED: Elizabeth Masters Deputy General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Sylvan A. Wells, Esquire Post Office Box 5307 Daytona Beach, Florida 32018-1307 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301-1927 Van B. Poole, Secretary Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301-1927
