The Issue Whether Respondent sold alcoholic beverages in violation of a municipal ordinance concerning the hours of sale of such beverages and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with regulating the sale of alcoholic beverages and tobacco in Florida. Respondent, Ferrell A. Melton and Nora J. Melton, d/b/a Prince Grocery (Respondent), is the holder of Alcoholic Beverage License No. 30-00004, Series 2APS. This license authorizes the Respondent to sell alcoholic beverages on the premises of Prince Grocery, located at 705 West Columbus Drive, Tampa, Florida (licensed premises). Prince Grocery is a neighborhood store. The City of Tampa Code, Article I, Section 3-3, prohibits places within its city limits and licensed by the State of Florida to sell alcoholic beverages after 3:00 a.m. and before 1:00 p.m. on Sunday. On September 21, 1997, Officer Anthony Pullara of the Tampa Police Department was dispatched to Respondent's licensed premises at approximately 3:00 a.m. Officer Pullara was dispatched to investigate complaints that Respondent was selling alcoholic beverages after hours. When Officer Pullara began the investigation of Respondent, he did not immediately go on the licensed premises, but rather positioned himself directly across the street from and facing the licensed premises. This location placed Officer Pullara about 200 feet from the licensed premises and gave him a clear view of the outside of the store and the parking lot. To aid his vision from this distance and to get a view of what was occurring inside the licensed premises, Officer Pullara used binoculars. On Sunday, September 21, 1997, between 3:00 a.m. and 3:55 a.m., Officer Pullara observed several persons enter the licensed premises. In each instance, the person would go to the front door of the premises and then knock on the door. Respondent, Nora Melton, who was inside the premises, would unlock the door and allow the person to come inside. After a short time inside, the patron would leave the premises carrying a brown paper bag that appeared to contain something. Officer Pullara could not see the contents of the bags. However, from the size and shape of the bags, the bags appeared to contain objects about the size of either bottles of beer or a quart of beer. Although Officer Pullara never verified the contents of any of the bags, he suspected that the bags contained beer. At approximately 3:55 a.m. on Sunday, September 21, 1997, George Munoz went to the front door of the licensed premises and appeared to knock on the door. Thereafter, George Munoz entered the premises. From Officer Pullara's vantage point, he observed Respondent and Munoz in the licensed premises appearing to engage in a friendly conversation. Officer Pullara also observed Respondent gather some bags from the front register area and then escort Munoz to the rear of the store. For the brief time Respondent and Munoz were in the rear of the store, they were out of Officer Pullara's view. When they returned to the front area of the licensed premises to the area where the cash register was located, Officer Pullara observed Munoz give something to Respondent. It then appeared to Officer Pullara that Respondent escorted Munoz to the front door and unlocked it so that he could leave. Munoz then exited the licensed premises carrying a brown paper bag. From Officer Pullara's observation's, the transaction with Munoz appeared to be similar to the transactions that Officer Pullara had observed between Respondent and other individuals who had come to the licensed premises between 3:00 a.m. and 3:55 a.m. on this same day. As Munoz was leaving the licensed premises, Respondent came to the front door and she and Munoz continued to engage in a conversation. Due to his position, Officer could not hear what the Respondent and Munoz were saying to each other, but it appeared to him to be a friendly conversation. After Munoz left the licensed premises, he went toward the car from which he had earlier exited. However, prior to getting into the vehicle Munoz pulled down the brown bag and a plastic bag contained therein, revealing two quarts bottles bearing the name "Schlitz Malt Liquor." In describing this event, Officer Pullara testified that "[Munoz] held them up in the air in front of his face, as if showing the other occupant of the vehicle that he had in fact purchased the beer." Officer Pullara then drove his police car into the parking lot of the licensed premises and observed Munoz get into his vehicle with the two quarts of Schlitz Malt Liquor. After Munoz pulled out of the parking lot, Officer Pullara stopped him. Officer Pullara then confiscated the two quarts of malt liquor. After he confiscated the malt liquor from Munoz, Officer Pullara returned to the licensed premises and arrested Respondent Nora Melton for after-hour sale of alcoholic beverages. Respondent was charged with the after-hour sale of alcoholic beverages and resisting an officer. Munoz did not testify at trial and Respondent Nora Melton was subsequently acquitted of the charge related to after-hour sale of alcoholic beverages. As a result of the events of September 21, 1997, Respondent was convicted of resisting arrest although adjudication was withheld on this charge. There is no dispute that, on September 21, 1997, Munoz got two quarts of Schlitz Malt Liquor from the licensed premises. However, Respondent's version of how Munoz came in possession of the malt liquor is at odds with that of Officer Pullara. According to Respondent, a female customer who had been in the licensed premises earlier telephoned Respondent and indicated that Respondent had forgotten to give the customer the cigarettes which she had purchased. Respondent knew this customer. However, when the customer called, Respondent did not recall whether she had given the customer the cigarettes. Nonetheless, Respondent gave the customer the benefit of the doubt and told her that if she came "right now . . . I'll give them to you." After the telephone conversation, the customer arrived at the licensed premises to retrieve the cigarettes. Respondent went to the front door and unlocked it to let the customer in, but did not relock the front door once the customer was inside. After Respondent gave the customer the cigarettes, the customer decided to purchase lottery tickets, which were located on the front counter area of the licensed premises. During the course of these transactions, Respondent and the customer engaged in a casual conversation in the front counter area of the licensed premises. While Respondent and the customer were engaged in conversation, Munoz, who appeared to be drunk, entered the premises through the unlocked front door and then reached around the customer for a bag. Respondent had known Munoz for several years and warned the customer that Munoz was a "dangerous person." As Munoz proceeded to the back of the store where the beer was located, Respondent told him that he could not purchase any beer because it was after 3:00 a.m. Munoz told Respondent, "Wait and see what I do." Munoz continued to the back of the store, moved a barricade that was in front of the beer, and removed two quarts of malt liquor. When Munoz returned to the front of the licensed premises, Respondent ordered him to give her the beer because he was not going to "[take] it outside." Respondent came from behind the counter where she had been standing, got between the customer and Munoz, and tried to grab the beer from Munoz. Munoz refused to give Respondent the beer and began "turning around and swinging the beer at [Respondent]." While Respondent was attempting to take the beer from Munoz, she thought of using a bat to break the beer bottles but decided against doing that for fear that he would hurt her. Respondent's concern for her own safety was based on her knowledge or belief that on an earlier occasion Munoz had broken his girlfriend's arm and "knocked her eye out." Respondent told Munoz that if he left the premises with the beer, she would "charge" him with shoplifting. Despite Respondent's threats and attempts to grab the malt liquor from Munoz, he left the licensed premises with the two quarts of malt liquor. While in the parking lot, Munoz removed or lowered the bag and displayed the two quarts of Schlitz Malt Liquor, by waving it in front of his face. At the time of the investigation which is the subject of these proceedings, Respondent had known Munoz for many years. Although Munoz had been a customer of the licensed premises, Respondent has had problems with him. About six years ago, Munoz gave Respondent a "bad check" which he never paid. Respondent believes that her problems with Munoz are due to his anger toward her because she always asks him about paying the check. On Monday morning, at about 11:00 a.m., September 22, 1997, Respondent went to the police department to file an incident report regarding Munoz taking the malt liquor from the licensed premises. Immediately after filing that incident report, Respondent went to the Internal Affairs Office and filed a complaint against Officer Pullara. The basis of Respondent's complaint against Officer Pullara was that he had mistreated her when he arrested her on September 21, 1997. Petitioner filed the subject Administrative Action against Respondent based on a complaint and report from the Tampa Police Department regarding an alleged violation of a City of Tampa Code provision relating to the hours that alcoholic beverages may be sold. At all times relevant to this proceeding, Respondent Nora Melton stayed at the licensed premises. She began staying there because of the increased number of burglaries occurring on the licensed premises. Respondent usually locked the front door to the premises at about 10:00 p.m., but the business did not close at this time. If someone who Respondent knew came to the front door of the licensed premises after 10:00 p.m., she would open it and let that person come inside to make a purchase. Since the September 21, 1997, incident, however, the shutters to the licensed premises are put down no later than 2:30 a.m. and no customers are allowed into the premises. The testimony of Respondent was credible and was unrebutted by Petitioner. Petitioner acknowledged that George Munoz has a long criminal record dating back to July 10, 1979, with his last arrest listed as July 23, 1997, about two months before the subject incident. The records reviewed at hearing by Agent Thompson reflected only arrests and not the disposition of the arrests. According to the records, Munoz has been arrested for: unlawful use of a weapon; theft; at least three incidents involving the purchase of cocaine; delivery and control of cocaine; disorderly conduct; petty theft; criminal mischief; burglary of a structure; burglary of a dwelling; at least two incidents involving probation violations; escape; domestic assault; domestic battery; at least two incidents of trespass; battery; and trespass of a structure. The record also revealed that a warrant had been recently issued against Munoz for domestic violence, aggravated battery, and driving under the influence. In an Administrative Action signed on June 2, 1998, Respondent was charged with violating a city ordinance relating to the hours that alcoholic beverages may be sold. The matter was disposed of by an informal hearing and Respondent was fined $250.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a Final Order (1) finding that Respondent did not violate Section 561.29(1)(a), Florida Statutes, by selling alcoholic beverages after hours in violation the Tampa City Code; and (2) dismissing the charge in the Administrative Action. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998. COPIES FURNISHED: Thomas D. Winokur Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Nora J. Melton, pro se 705 West Columbus Drive Tampa, Florida 33602 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Miguel Oxamendi, Esquire Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether SKRS Management, LLC’s, Application for New Alcoholic Beverage License, as amended, should be approved.
Findings Of Fact The Two Parcels Petitioner is a management company that owns and operates Siesta Key Beachside Resort & Spa (Resort). The Resort is comprised of a total of five buildings, with four of the buildings located at 215 Calle Miramar, Sarasota, Florida (parcel 1), and a single building located at 5311 Ocean Boulevard, Sarasota, Florida (parcel 2). The two parcels are separated by Calle Miramar, which is a public right of way used as a street. At no point do the boundary lines of the two parcels adjoin, abut, or in any way touch one another. The buildings on parcel 1 have a total of 38 rooms/units available for rent. The single building on parcel 2 has a total of 15 rooms/units available for rent. For license classification purposes, section 509.242 provides, in part, that “[a] public lodging establishment shall be classified as a hotel, motel, nontransient apartment, transient apartment, bed and breakfast inn, timeshare project, or vacation rental.” It is undisputed that both parcels contain buildings that are public lodging establishments. Section 509.013 provides, in part, as follows: (4)(a) “Public lodging establishment” includes a transient public lodging establishment as defined in subparagraph 1. and a nontransient public lodging establishment as defined in subparagraph 2. “Transient public lodging establishment” means any unit, group of units, dwelling, building, or group of buildings within a single complex of buildings which is rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests. “Nontransient public lodging establishment” means any unit, group of units, dwelling, building, or group of buildings within a single complex of buildings which is rented to guests for periods of at least 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests for periods of at least 30 days or 1 calendar month. * * * (7) “Single complex of buildings” means all buildings or structures that are owned, managed, controlled, or operated under one business name and are situated on the same tract or plot of land that is not separated by a public street or highway. Consistent with sections 509.013 and 509.242, and given that parcels 1 and 2 are “separated by a public street,” the Department of Business and Professional Regulation, Division of Hotels and Restaurants, issued a motel license for each parcel. Application for New Alcoholic Beverage License On May 31, 2017, Petitioner filed it Application with the Division. Petitioner’s Application identifies “511 OCEAN BLVD AND 213 CALLE MIRAMAR” as the addresses for the premises to be licensed. Section 561.18 provides, in part, that “[a]fter the application has been filed with the local district office supervisor, the district supervisor shall cause the application to be fully investigated, both as to qualifications of the applicants and a manager or person to be in charge and the premises and location sought to be licensed.” Pursuant to its statutory obligation to investigate “the premises and location sought to be licensed,” on or about June 6, 2017, the Division conducted an investigation of the premises to be licensed and determined: The location of this property has 2 addresses, 5311 Ocean Blvd. and 213 Calle Miramar; The locations are NOT CONTIGUOUS and are divided by a roadway (Calle Miramar) that is a public street that allows motor vehicle traffic to travel to other businesses and residents on the roadway; The roadway is not a private road that runs between the 2 locations; and One location in itself does not meet the requirements for the total number of rooms. The Division notified Petitioner that the premises did not meet the requirements for an alcoholic beverage license. On or about February 5, 2018, Petitioner amended its Application and requested therein that Respondent only consider 5311 Ocean Boulevard as the premises sought to be covered by the license. An on-site investigation was again conducted by the Division and it was determined that the “[l]ocation is the same configuration as the last inspection” and that the Application should be denied because the premise (parcel 2) does not meet the minimum room requirement needed for licensure. Section 561.20 of the Beverage Law2/ generally provides that a special license to sell intoxicating liquors may be issued to “[a]ny bona fide hotel, motel, or motor court . . . of not fewer than 100 guest rooms in any county having a population of 50,000 residents or greater . . . [and that] [t]his special license shall allow the sale and consumption of alcoholic beverages only on the licensed premises of the hotel or motel.” A special law governs Sarasota County, which lowers to 50 the minimum number of guest rooms required to be eligible for a license to sell intoxicating beverages. Section 561.01(11) provides, in part, as follows: “Licensed premises” means not only rooms where alcoholic beverages are stored or sold by the licensee, but also all other rooms in the building which are so closely connected therewith as to admit of free passage from drink parlor to other rooms over which the licensee has some dominion or control and shall also include all of the area embraced within the sketch, appearing on or attached to the application for the license involved and designated as such on said sketch, in addition to that included or designated by general law. The area embraced within the sketch may include a sidewalk or other outside area which is contiguous to the licensed premises.[3/] The evidence establishes that Petitioner holds two distinct motel licenses for two distinct parcels. The motel located at 5311 Ocean Boulevard has only 15 guest rooms, and accordingly, this facility does not meet the 50- room minimum requirement for licensure under the Beverage Law.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order denying SKRS Management, LLC’s, Application for New Alcoholic Beverage License. DONE AND ENTERED this day of , , in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this day of , .
The Issue The issue in this case is whether Petitioner's application for a special restaurant license (4COP-SRX) can be deemed incomplete for failure to obtain zoning approval from the local government.
Findings Of Fact Petitioner is a restaurant duly-licensed by the State of Florida to serve food and certain alcoholic beverages. It currently holds a 2COP restaurant license, which allows it to sell beer and wine along with its food products. Petitioner has held the 2COP license since opening in calendar year 2002. Petitioner derives 51 percent of its revenue from the sale of food and nonalcoholic beverages. It is in an area of Orange County which is zoned for commercial property and has the appropriate land use code for a restaurant chain. Petitioner's facility is presently located within 500 feet of a local school. The school was built a year or two after Petitioner began operation of its restaurant. In order for Petitioner to obtain an upgraded license so that it can serve other alcoholic beverages (i.e., liquor) it must submit an application to Respondent. Petitioner duly- submitted such an application on February 5, 2007. The application sought to upgrade Petitioner's license to a 4COP-SRX license. The 4COP license would allow for sale of all alcoholic beverages. Section 5 of the Application addresses zoning for the restaurant. Section 5 includes the following: Are there outside areas which are contiguous to the premises which are to be part of the premises sought to be licensed? [Petitioner answered, Yes.] If this application is for issuance of an alcoholic beverage license where zoning approval is required, the zoning authority must complete "A" and "B". If zoning is not required, the applicant must complete section "B". The location complies with zoning requirements for the sale of alcoholic beverages or wholesale tobacco products pursuant to this application for a Series 4COP SRX license. Signed Title Date Is the location within limits of an "Incorporated City or Town"? Yes No If yes, enter the name of the city or town: Petitioner filled in the address portion of Section 5, but did not have a zoning authority complete Section A, nor did Petitioner complete Section B. Respondent deemed the Application incomplete due to Petitioner's failure to complete Section 5. On July 25, 2007, a Final Warning Notice was sent to Petitioner, allowing Petitioner ten additional days to submit zoning approval for the Application. When no zoning approval was returned within the prescribed period, Respondent issued its Intent to Deny License. Petitioner did make an inquiry to the local zoning authority concerning its application to increase the level of its license. However, by letter dated February 22, 2007, the Orange County Zoning Division notified Petitioner as follows: We have received your request for an increase in series to the alcoholic beverage license at Hooters Lake Underhill, 11425 Underhill Road, Orlando. On February 22, 2007 we conducted a distance check to see if the proposed location satisfied the separation requirements contained in the Orange County Code. The results of our inspection reveal that the proposed location is 407 ft. from Legacy Middle School at 11398 Lake Underhill Road. Since this location cannot satisfy the 1000 ft. separation requirement from the nearest school, this office cannot issue zoning approval for the increase in series.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, denying the application filed by Petitioner. DONE AND ENTERED this 5th day of May, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2008.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: At all times material to the instant case, Respondent has held alcoholic beverage license number 16-07413, authorizing him to sell alcoholic beverages on the premises of Pic A Pac (hereinafter also referred to as the "Store"). Respondent was the owner of Pic A Pac until February of 1994, when he sold the Store. Pic A Pac is a "drive-through" convenience store located at 3390 West Davie Boulevard in Fort Lauderdale, Florida. It has two "drive through" windows at which motorists are able to purchase items without leaving their vehicles. On the evening of June 12, 1992, John Raymond drove up to one of these windows in his red, four-door, 1987 Ford Escort and asked Respondent, who was manning the window, for two bottles of Jack Daniels Lynchburg Lemonade, a "wine cooler" product that is marketed as an alcoholic beverage. Raymond was born on September 25, 1974, and thus was only 17 years of age on June 12, 1994. Notwithstanding that he had shoulder length hair and was wearing a nose ring and an earring, Raymond's appearance that evening was not such that an ordinarily prudent person would have believed him to be 21 years of age or older. 2/ Moreover, Raymond neither said nor did anything to give Respondent reason to believe that he was not under 21 years of age. He did not show Respondent, nor did Respondent ask him to produce, any identification. Nonetheless, Respondent sold to Raymond the two bottles of Jack Daniels Lynchburg Lemonade that Raymond had requested. He did not give Raymond a receipt. After Raymond paid him, Respondent put these alcoholic beverages in a brown paper bag and handed the bag to Raymond. 3/ He did not give Raymond a receipt. Raymond took the bag and placed it on the disengaged emergency brake between the driver's and front passenger seat. The latter was occupied by Respondent's companion, Jason Campbell, who like Raymond, appeared to be well under 21 years of age. Raymond then drove off. 4/ The transaction between Respondent and Raymond was observed, through binoculars, by Albert Heinermann, a special agent with the Department, who, along with two other Department special agents, was on surveillance in the area. Heinermann was in a vehicle parked approximately 40 to 50 yards from the Store. When Heinermann saw Raymond drive off, he followed after him in his vehicle and pulled him over less than a block from the Store. A search of the vehicle revealed the paper bag containing the two bottles of Jack Daniels Lynchburg Lemonade that Raymond had purchased from Respondent. The bottles were unopened. Heinermann confiscated the alcoholic beverages and arrested Raymond and Campbell. One of the other special agents working with Heinermann that evening, Mike Fraher, went to the Store and arrested Respondent. Criminal charges were filed against Respondent. After the conclusion of the criminal case, the two bottles of Jack Daniels Lynchburg Lemonade that Raymond had purchased from Respondent and that Heinermann had confiscated were destroyed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order dismissing the charge in the Notice to Show Cause that Respondent unlawfully possessed fireworks on his licensed premises, finding Respondent guilty of the charge in the Notice to Show Cause that he unlawfully sold alcoholic beverages on his licensed premises to a person under 21 years of age, and penalizing Respondent for such unlawful conduct by suspending his alcoholic beverage license for a period of seven days and fining him $1,000.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1994.
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.
Findings Of Fact Findings regarding general matters The Respondent, Ernest Scott, d/b/a Sonny's Stardust Lounge and Restaurant, is the holder of a special alcoholic beverage license for premises located at 5181 N.W. 9th Avenue, Fort Lauderdale, Broward County, Florida. His current license number is 16-00368SRX. The type of license held by the Respondent is a special license authorized by Chapter 61-579, Laws of Florida. The Respondent purchased the licensed premises as a going business in 1983. At that time the business had a similar license, which license was transferred to the Respondent when the Respondent purchased the business. Findings regarding sales to minors On December 15, 1989, Respondent's employee, Lillian C. Pender, unlawfully sold an alcoholic beverage to a person under the age of twenty-one years. The beverage sold was a 12-ounce can of Budweiser beer. The minor to whom the sale was made was Jerry Wieczorek, age 16, date of birth April 11, 1973. 2/ On January 12, 1990, the Respondent, Ernest Scott, unlawfully sold an alcoholic beverage to a person under the age of twenty-one years. The beverage sold was a 12-ounce can of Budweiser beer. The minor to whom the sale was made was Seth Ross, age 18, date of birth August 22, 1971. At the time of the alcoholic beverage sale on January 12, 1990, Seth Ross was engaged as an under age "Investigative Aide." His primary function in that capacity was to attempt, under the watchful eyes of the Division's Investigators, to purchase alcoholic beverages from various premises licensed to sell alcoholic beverages. When his efforts were successful, the Division Investigators would arrest the person who sold the alcoholic beverage to the Investigative Aide and would issue a notice to the licensee. All Investigative Aides, including Seth Ross, were instructed not to make any false statements about their age, not to use any false identification documents, and to answer truthfully any questions regarding their age that might be asked by the person from whom they were attempting to buy alcoholic beverages. Shortly after 8:00 p.m. on the evening of January 12, 1990, Seth Roth entered the licensed premises and walked up to the bar. The Respondent, Ernest Scott, was on duty behind the bar. Ross asked the Respondent for a Budweiser and in response the Respondent asked Ross for identification. Ross handed the Respondent a valid Florida driver license that contained Ross' correct date of birth, namely August 22, 1971. The Respondent looked at the driver license and then said to Ross, "This makes you twenty." Ross replied, "No, it makes me eighteen." The Respondent said something to the effect that that was "good enough," and sold a Budweiser beer to Ross. Ross paid for the beer and then walked over to where two Division Investigators were sitting and delivered the beer to them. 3/ Findings regarding seating accommodations The furniture inventory at the time of Respondent's purchase of the licensed premises included the following: 49 four seat tables, 5 two seat tables, and 206 chairs. Except as specifically noted in the findings which follow, that original inventory of furniture has been continuously located on the licensed premises. Since the purchase of the licensed premises the Respondent has added some furniture to the licensed premises, including at least 5 small chairs and one large table. On December 18, 1989, Investigator R. W. Dees went to the licensed premises, contacted the Respondent, and conducted an inspection of the licensed premises. On the basis of the inspection, Investigator Dees concluded that the licensed premises were not being maintained in compliance with Chapter 61-579, Laws of Florida, and he issued a notice to that effect to the Respondent. 4/ The notice constituted a warning to the Respondent, as well as specific instructions regarding what the Respondent was required to do to be in compliance with the requirements of Chapter 61-579, Laws of Florida. At the time of the inspection on December 18, 1989, the Division's policy with regard to first offenses regarding the accommodations required by special acts like Chapter 61-578, Laws of Florida, was to issue a warning and to allow the licensee ten days within which to take the necessary corrective action. On the basis of the record in this case it cannot be said with certainty how many patrons could be served full course meals with the accommodations on the licensed premises at the time of the inspection on December 18, 1989. 5/ However, by the next day the Respondent had taken steps to remedy any deficiencies in that regard, and on December 19, 1989, there were sufficient tables and chairs on the licensed premises to serve at least two hundred patrons at tables. On January 12, 1990, Investigators Krauss and Dees conducted another inspection of the Respondent's licensed premises. At the time of the inspection on January 12, 1990, there were a sufficient number of tables and chairs on the licensed premises for service of at least two hundred patrons. 6/
Recommendation For all of the foregoing reasons, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order in this case to the following effect: Concluding that there has been no violation of Chapter 61-579, Laws of Florida, and dismissing the charges set forth in the second and fourth paragraphs of the Notice To Show Cause; Concluding that the Respondent did violate Section 562.11, Florida Statutes, by reason of the sale, by the Respondent's employee, of an alcoholic beverage to a minor, as charged in the first paragraph of the Notice To Show Cause; Concluding that the Respondent did violate Section 562.11, Florida Statutes, by reason of the sale, by the Respondent, of an alcoholic beverage to a minor, as charged in the third paragraph of the Notice To Show Cause; and Imposing a penalty consisting of a fine in the amount of five hundred dollars ($500.00) for the violation described in subparagraph (b) of this recommendation and an additional fine in the amount of five hundred dollars ($500.00) for the violation described in subparagraph (c) of this recommendation. RECOMMENDED at Tallahassee, Leon County, Florida, this 24th day of September, 1990. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1990.
The Issue Whether Timothy John O'Dea, on behalf of Respondent, Skyline Caterers Corporation, d/b/a Cracker Barrel, willingly and knowingly falsely swore to having no criminal charges filed against him within the past 15 years on his Alcoholic Beverage and Tobacco license application on September 1, 1999.
Findings Of Fact Petitioner, the Department of Business and Professional Regulations, Division of Alcoholic Beverages and Tobacco, is the Agency charged with the responsibility of administrating and enforcing the beverage laws of the State. Chapters 559-568 Florida Statutes. At all times material to this proceeding, Respondent, Skyline Caters Corporation, d/b/a Cracker Barrel, Timothy John O'Dea, President, operated a licensed restaurant-catering business located at 7984 North Tamiami Trail, Sarasota, Florida 34243. At all times material to this proceeding, Respondent applied for and was holding Beverage License Number 51-00228, Series 2APS, package sales only of beer and wine (and other alcoholic beverages under 6 percent alcohol by volume) and 51-02385 tobacco. On or about September 1, 1999, Timothy John O'Dea, on behalf of Respondent, completed a License/Permit application, Form ABT 4000-001L. On page four of the application, under oath or affirmation, Mr. O'Dea answered "NO" to the question have you had any criminal charges filed against you within the past 15 years. Special Agent Suzanne Castro, testimony proved that the criminal charges portion of the Alcoholic Beverage License Application, that asks whether Respondent has any criminal charges filed against him, is used in determining applicant's initial eligibility for the requested license. According to Special Agent Castro, reliance upon the sworn information provided by Respondent was the basis upon which the Agency issued to Timothy John O'Dea the herein- referred to license. In completing the approval process, DABT's routine and subsequent investigation revealed that Timothy John O'Dea had been arrested and charged with thief of services by the Passaic, New Jersey, Police Department on January 18, 1995. The Bergen, New Jersey, Police Department, on August 3, 1995, arrested Respondent a second time on the charge of thief of services. The dispositions of the arrests are unknown. Presently, there are two outstanding New Jersey arrest warrants for Timothy John O'Dea. Timothy John O'Dea, willingly and knowingly, falsely swore, under oath or affirmation, of having no criminal charges filed against him within the 15 years prior to September 1, 1999.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, and review of the penalty guidelines in Rule 61A.2-022, Florida Administrative Code, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order revoking license numbered 51-00228, Series 2APS, issued to Timothy John O'Dea. DONE AND ENTERED this 24th day of July 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2001. COPIES FURNISHED: Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Lt. David Merrill Department of Business and Professional Regulation 1748 Independence Boulevard Building E, Suite 4 Sarasota, Florida 34234 Timothy John O'Dea Cracker Barrell 7984 North Tamiami Trail Sarasota, Florida 34243 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Petitioner holds a 1-COP beverage license which authorizes the sale of beer only for consumption on the licensed premises. Personal service of the Notice to Show Cause was made on an employee operating the premises on August 23, 1976. Service of the Notice of Hearing was placed in the door of Country Inn while the Inn was not open for business. The employee of the licensee who received service of the Notice to Show Cause appeared at the hearing. On July 9, 1976 two beverage agents visited the Country Inn around 10:00 P.M. Upon checking around the premises they found: One partial quart of Smirnoff vodka 80 proof; 1 partial one fifth gallon of Smirnoff vodka 80 proof; 1 one fifth gallon of Barcardi light rum; 1 almost full one fifth gallon Pinch scotch whiskey; and 1 partial one fifth gallon of Mogan David blackberry wine. These alcoholic beverages were seized, labeled and produced at the hearing. A description of these beverages as noted above was substituted for the beverages which was admitted as Exhibit 2. The beverages described above had been brought onto the premises by Robert Jordan Jr. for his personal consumption.
Findings Of Fact On February 24, 1984, the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (the Division), issued alcoholic beverage license number 46-1196, Series 4-COP, to the Respondent, Sano Enterprises, Inc., of Ft. Myers, t/a Allen's Night Flight, for use at 6260 South Cleveland Avenue, Ft. Myers, Lee County, Florida. After April 22, 1985, the NCNB National Bank of Florida, Inc. (NCNB) foreclosed on the Respondent's assets, including its beverage license. The Division approved the transfer of the license to NCNB at some time after May 6, 1987. During the evening of August 16, 1985, at approximately 9:30 p.m., Respondent's manager transported in a vehicle registered to O. C. Allen, Jr., four cases of alcoholic beverages (by logical inference, more than 12 bottles) to the Respondent's licensed premises for resale. The vehicle was not permitted by the Division to transport alcoholic beverages for resale. O. C. Allen, Jr., is the husband of Respondent's sole owner, director and officer. He had a power of attorney to act for the Respondent. The Division's penalty guidelines call for a minimum penalty of $250 for the violation charged in charge 19, the civil penalty the Division seeks to impose under charge 19.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic and Tobacco, enter a final order: (1) dismissing all of the charges in the Notice To Show Cause in this case except charge 19; (2) holding the Respondent, Sano Enterprises, Inc., of Ft. Myers, t/c Allen's Night Flight, guilty of violating charge 19 of the Notice To Show Cause for illegally transporting alcoholic beverages in a vehicle without a permit; and (3) imposing on the Respondent a civil penalty of $250. RECOMMENDED this 2nd day of October, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 2nd day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2555 To comply with Section 120.59(2), Florida Statutes (Supp. 1986), the following explicit rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings Of Fact: Accepted and incorporated. First sentence, accepted and incorporated; the rest rejected as conclusion of law. Rejected as subordinate to facts not found and as unnecessary. Also, see Evidentiary Rulings, above. See 3, above. Also the last sentence is not supported by the record, and the alleged management agreement (unsigned) did not list the names Jose or Shields, according to the evidence. See 3, above. Unnecessary in light of the Findings Of Fact. Accepted. In part incorporated and in part subordinate to facts found. Respondent's Proposed Findings Of Fact. Accepted and incorporated. First sentence accepted and incorporated; second sentence, accepted but subordinate to facts found. 3.-8. Accepted but subordinate to facts found. See 3-8, above, except last sentence is rejected to the extent that there was testimony albeit hearsay. See 3-8, above. Except for last sentence, see 3-8, above; last sentence, subordinate to facts contrary to those found. 12.-13. See 3-8, above. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1927 Sandra Allen, Esquire P. O. Box 10616 Tallahassee, Florida 32302 Daniel Bosanko Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1927 Van B. Poole Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1927 Thomas A. Bell General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1927
Findings Of Fact This case is presented for consideration based on the Notice to Show Cause filed by the Petitioner, Division of Alcoholic Beverages and Tobacco, against Rose L. Lee, who trades as Lee's Grocery. The exact details of the allegation are as found in the issue statement of this Recommended Order, which comments are hereby incorporated into the Findings of Fact. The Petitioner, Division of Alcoholic Beverages and Tobacco, is a division of an agency of State Government, namely, a part of the State of Florida, Department of Business Regulation. One of the functions which the Division of Alcoholic Beverages and Tobacco serves is to regulate those individuals who are licensed to sell alcoholic beverages in the State of Florida. The Respondent, Rose L. Lee, who trades as Lee's Grocery in a location at 2210 Central Avenue, Tampa, Hillsborough County, Florida, is a holder of an alcoholic beverage license issued by the Petitioner. That license number is 39- 0292 and all times pertinent to these proceedings the Respondent held such license. On May 23, 1979, Officer Donald Clifford Levengood went to the licensed premises. Officer Levengood is an employes of the Division of Alcoholic Beverages and Tobacco. The purpose of Officer Levengood's visit was twofold. First, Officer Levengood was there to make a routine inspection of the licensed premises, as is authorized by the statutes which regulate the sale of alcoholic beverages. The second reason that Officer Levengood went to the licensed premises was based upon certain information that he had obtained from an informer, to the effect that cigarettes not bearing the proper Florida tax stamp were sold in the vicinity of the Respondent's licensed premises. The testimony did not reveal that the Respondent had sold that class of cigarettes from her store prior to the officer's inspection. When Officer Levengood arrived at the licensed premises, he spoke with the store manager, one Columbus Lee, the husband of the Respondent. Lee had been running the store as manager for a considerable period of time, to include the month of May, 1979. In keeping with a checklist Officer Levengood began to check items against that list and in that Process found a pack of Pall Mall cigarettes in the licensed premises in a location where the cigarettes were being offered for sale. Levengood noted that this particular pack did not show a Florida tax stamp and after removing this pack from its location he proceeded to remove a number of other packs, all of which were missing the necessary Florida tax stamp. All total, there were fifteen packs in this location which did not evidence the proper Florida tax stamp. Those items were removed from the licensed premises and placed in a bag and those packs and bag were admitted in the course of the hearing as Petitioner's Exhibit No. 1. Further inspection by the officer uncovered eight cartons of Pall Mall cigarettes and those cigarette containers did not carry the necessary Florida tax stamp. Those cartons were consolidated into a bag and became the Petitioner's Exhibit No. 2. Admitted into evidence in the course of the hearing. (By agreement between the parties, the items of evidence were left in the custody and control of the District Office of the Division of Alcoholic Beverages and Tobacco located in Tampa, Florida.) Columbus Lee, when questioned about the origins of those packs of cigarettes that were missing the Florida tax stamps, indicated that a couple of days before the inspection he had purchased ten cartons of Pall Mall cigarettes from persons who were vending these cigarettes from their car at a location across the street from the licensed premises. The number of total packs of cigarettes was ninety-five (95), which is less than fifty (50) cartons. The Respondent, Rose L. Lee, was not in attendance at the licensed premises on May 23, 1979, at the time that the employee of the Petitioner discovered the unstamped cigarettes.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is recommended that the Respondent, Rosie L. Lee, be fined in the amount of Two Hundred Fifty Dollars ($250.00) and in the event that the Respondent fails to pay that fine within thirty (30) days of the date of the final order, that her license to sell alcoholic beverages be suspended for a period of thirty (30) days. DONE and ENTERED this 16th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Daniel Brown, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Rose L. Lee t/a Lee's Grocery 2204 Central Avenue Tampa, Florida 33602
