Findings Of Fact By Stipulation filed September 11, 1986, the parties agreed to findings of fact 1-11. Donna Sawyer filed a preliminary application to participate in the state lottery for liquor license on January 20, 1984, on Department of Business Regulation form No. 747L. On September 18, 1984, Donna Sawyer was notified by Respondent that she had been selected in the lottery held on September 12, 1984, to be eligible to apply for a state quota liquor license. That on or about November 2, 1984, Donna Sawyer, acting through her wholly owned corporation, Sarasota County Liquors, Inc., filed a sworn "application for Alcoholic Beverage License" (Department of Business Regulation Form No. 700L), with the Division of Alcoholic Beverages and Tobacco. That application included a description of a location which was to be the licensed premises. A Personal Questionaire, Department of Business Regulation Form 710L, was also included by Petitioner with said application. The license application was denied by Respondent on March 8, 1985. The grounds for the denial as stated in the denial letter were Petitioner's failure to provide: (1) proof of right of occupancy to the premises Petitioner was seeking to license; (2) verification of financial investment; (3) business name, and (4) sketch of the premises affixed to the application. On April 10, 1985, Sandra Allen, Esquire, acting on behalf of Petitioner, requested an administrative hearing in order to contest the March 8, 1985, denial of the subject license. Joseph Forbes, Esquire, of Gainesville, Florida, was then retained by Petitioner to resolve the denial of the requested license, which was then pending before the Director of the Division of Alcoholic Beverages and Tobacco, as an informal administrative proceeding, pursuant to Section 120.57(2), Florida Statutes. In this capacity, Forbes, among other things filed a Motion for Continuance and Stipulation in this case attached to a June 6, 1985 cover letter. Forbes thereafter reached an agreement in the informal proceeding with Thomas Klein, Esquire, then counsel of record for Respondent, evidenced by letter dated October 1, 1985, which in its relevant portions indicated: This is to continue our telephone conversation of October 1, 1985, in which the following was discussed and agreed upon: Sarasota Liquors - your client will have 45 days from the date of this letter to cure the defects set forth in the March 8, 1985 letter of denial. Please direct your client to respond to the Tallahassee office. In order to rectify the original deficiencies causing the license denial, Petitioner re-filed an Application for Alcoholic Beverage License, Department of Business Regulation Form 700L, including exhibits, with Respondent, on or about November 13, 1985. Petitioner's re-filed license application was denied by Respondent on February 19, 1986, for two reasons: (1) "Application incomplete as applicant does not have right of occupancy to the premises for which she is seeking to license," and (2) "Division is unable to fully investigate applicant's financial documentation." On or about November 4, 1985, while searching for a location to submit as the licensed premises, in the re-filed application of November 13, 1985, Donna Sawyer and Ocie Allen met with Alton Allen at 258 S. Tamiami Trail, Sarasota, Florida, who was an agent for Walter Spector, owner of several retail store spaces at that address. Ocie Allen, acting on behalf of his corporation, Ft. Myers A & T Corporation, entered into a lease for a store at 258 S. Tamiami Trail, Sarasota, Florida. On or about November 4, 1985, Ocie Allen, acting on behalf of his corporation Ft. Myers A & T Corporation, purportedly subleased the premises at 258 S. Tamiami Trail, Sarasota, Florida to Petitioner. That Petitioner had submitted a letter dated November 4, 1984, signed by Jim Irey, as President of Florida Home Equity of Lee County, Inc., which is attached to the November 13, 1985 application, which stated that certain financial support would be available to the subject alcoholic beverage sales contemplated by Petitioner. That as a result of the investigation following the November 13, 1985 application, Respondent was "unable to fully investigate applicant's financial documentation," since Respondent's agents were unable to locate Jim Irey or his company at the address indicated on the November 4, 1984 letter. Based upon the evidence presented, the following additional findings of fact are made: Donna Sawyer's preliminary application to participate in the state lottery for a quota liquor license included instructions to the applicant that it was the first part of a two part application and that the second part would require proof of occupancy for the premises to be licensed. The second part of the application was that license application filed with the Division of Alcoholic Beverages and Tobacco on November 2, 1984, and again on November 13, 1985. As part of the notification that she was eligible to apply for a state quota liquor license, Donna Sawyer was advised that she had 45 days to file a full and complete application and that if she failed to do so, this failure would be deemed as a waiver of her right to file for a new quota liquor license. The letter also advised her that the Division had 180 days from the date of the drawing to act upon her application. The Petitioner's first quota liquor license application was denied on March 8, 1985. March 8, 1985, was within 180 days of the applicable lottery drawing held on September 12, 1984. The agreement of the parties to resolve the March 8, 1985, denial of the subject license evidences an tacit agreement by the parties to waive any applicable time limits existing at that time in order to allow the Petitioner to resubmit a corrected application within 45 days as allowed by the Thomas Klein letter of October 1, 1985. The Division investigated the Petitioner's second application and determined that the applicant did not have a right of occupancy to the premises sought to be licensed, 258 Tamiami Trail, Sarasota, Florida, because Petitioner only had a purported sublease for the subject premises from Ft. Myers A & T Corporation. Ft. Myers A & T Corporation had obtained a lease for the property on November 4, 1985, from Walter Spector, deceased at the time of the administrative hearing. Said lease between Walter Spector, lessor, and Ft. Myers A & T Corporation, lessee, provided that subleases must be approved by the lessor and be in writing. The Petitioner did not produce evidence of written authorization by Walter Spector to allow Ocie Allen or Ft. Myers A & T Corporation, Inc., to sublease the subject premises to the Petitioner or to any other person. The only evidence of such authorization was the hearsay statement by Ocie Allen that Walter Spector had orally given such authorization. Furthermore, Mr. Alton Allen, then agent for Mr. Spector for leasing this property testified he had no knowledge that Mr. Spector was ever informed of a sublease. Therefore it is found that the sublease violated a material provision of the underlying lease from Walter Spector to Ft. Myers A & T Corporation. Mr. Ocie Allen, agent for the Petitioner and Donna Sawyer, testified and it is found that there was no intention for the Petitioner to operate an alcoholic beverage license at the 258 Tamiami Trail location. Petitioner's November 13, 1985, license application was also denied on February 19, 1986, for: Application incomplete as . . . the Division is unable to fully investigate applicant's financial documentation. This denial was due to the Division's agents being unable to verify the availability of financial funding from Florida Home Equity of Lee County, Inc. The Petitioner had submitted a November 9, 1984 letter from that corporation in its November 13, 1985 license application offering certain funding. Upon checking phone directories and making attempted telephone calls to the source named in that letter, the Division was not able to find the named business as source of funding. The Division further investigated Florida Home Equity of Lee County, Inc. as an alleged source of funding by sending an agent, Robert B. Baggett, to the address supplied by the applicant in a November 9, 1984 letter from Florida Home Equity of Lee County, Inc., only to find that no such business was located there and no neighbors knew of a new location. Sandra Allen, Esquire, testified that the source of the funding at the time of the second application was a new company run by the same person who was behind Florida Home Equity of Lee County, Inc., which was named as the source in the November 9, 1984 letter. However, this new company's name and address and verification of continued financial support to the Petitioner could not reasonably be determined by the Division and no evidence was presented that the Division had ever been provided with said new company's name or location prior to the denial of the second license application. Contradictory testimony was presented by Lt. Ewing and Sgt. Mills as to the existence of a policy requiring a "14 day" deficiency notice letter to applicants. It is clear that that policy was not recognized in the office supervised by Sgt. Mills. It was also not established that Lt. Ewing had the authority to set or enunciate policy for the Division.
The Issue The issue presented is whether Respondent Willie Lee Lewis d/b/a LS Lounge is guilty of the allegations contained in the notice of Administrative Action filed against him, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact Respondent Willie Lee Lewis d/b/a LS Lounge is the holder of alcoholic beverage license No. 53-01765, series 2-COP, authorizing him to operate as a vendor of alcoholic beverages. On May 31, 1996, Respondent filed with the Department his Application for Alcoholic Beverage License and Cigarette Permit and its accompanying Personal Questionnaire form. The Personal Questionnaire form contains a question asking if the applicant has ever been arrested or charged with any violation of the law other than minor traffic violations, and, if so, whether the applicant was convicted. Respondent answered "yes" to the first part of the question and "no" to the second part and added a notation that "adjudication was withheld." At the bottom of that series of questions, the form requests full particulars for any "yes" answer and lists the type of information requested, only a portion of which is legible on the copy of the form admitted in evidence. On this portion of the application, Respondent wrote "Martin County Sherifs [sic] Department." On April 14, 1992, Respondent was charged by Information in the Martin County Circuit Court, Case No. 92-352 CFA, with one count of unlawfully selling, delivering, or possessing with the intent to sell or deliver a controlled substance, cocaine. The second count alleged that Respondent unlawfully used or possessed with the intent to use drug paraphernalia, i.e., a razor blade. Respondent pled nolo contendere to count one, possession of cocaine. On December 9, 1992, the Court entered its Order Withholding Adjudication of Guilt and Placing Defendant on Drug Probation, placing Respondent on probation for a period of two years. When Respondent was completing his application for a beverage license, he went to the Department's offices in Martin County on several occasions. Department employees assisted him in completing his application. Respondent was concerned as to whether he was eligible for licensure due to the arrest which resulted in adjudication being withheld. He discussed that concern with the Department's employees in its Martin County office. The lady he spoke with did not know if Respondent could obtain a beverage license if adjudication had been withheld. She telephoned the Department's Tallahassee office regarding that question and then advised Respondent that he was not precluded from licensure. Respondent submitted certified copies of the Information and of the Order Withholding Adjudication of Guilt. The Department issued a beverage license to Respondent in May 1996, and Respondent set up his business. He entered into a lease for the business premises at a cost of $1,000 a month and spent $5,000 to $6,000 renovating the premises. He leased a big- screen T. V. at a cost of $200 a month. He purchased D. J. equipment for $8,000. He purchased inventory, hired employees, and began advertising. It costs Respondent approximately $1,800 a week to operate the business. He has a one-year contract for radio advertising and renewed the lease for his business premises for another year in May of 1997. It is the policy of the Department to determine on a case-by-case basis whether a person who has a criminal history should be given a license. The Department does issue licenses to persons who have been charged with a crime, have pled nolo contendere to those charges, and have had adjudication withheld and been placed on probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent not guilty of the allegations against him and dismissing the notice of Administrative Action. DONE AND ENTERED this 12th day of September, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1997. COPIES FURNISHED: Leslie Anderson-Adams, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Iola Mosley, Esquire Whitfield & Mosley, P.A. Post Office Box 34 West Palm Beach, Florida 33402 Lt. Bob M. Young 800 Virginia Avenue, Suite 7 Fort Pierce, Florida 34982 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Richard Boyd, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether respondent's alcoholic beverage license should be disciplined for allegedly serving alcoholic beverages to a person under the age of 19 contrary to Section 562.11(1), Florida Statutes.
Findings Of Fact Respondent holds alcoholic beverage license No. 64-00061, Series 6-COP. Under this license, it operates a liquor store and lounge, where it serves alcoholic beverages, at ABC Liquors #65 ("lounge #65" or "licensed premises"), 2527 Reid Street, Palatka, Florida. (Testimony of Ewing, Holloway, Ottens.) I. At approximately 7:00 p.m. on October 23, 1981, Clay Lamar Strickland, 16 years old, entered respondent's lounge in the company of several friends--one was 20, the others were 19 years old. During the two hours which followed, he ordered and was served by two barmaids, a beer and eight or nine mixed alcoholic drinks. Neither barmaid requested identification. (Testimony of Strickland.) At approximately 9:30 p.m., he left the lounge for twenty minutes, then returned and ordered additional mixed drinks. Again, the barmaids did not check his identification. (Testimony of Strickland.) When he left the lounge at the end of the evening, he was involved in a car accident and charged with driving while intoxicated and wanton reckless driving. After a test was administered, he was informed that the alcohol content of his blood was 0.12 percent. (Testimony of Strickland.) The two barmaids who served Mr. Strickland, Mary Tyler and Brenda Adams, did not intentionally serve alcohol to a minor. They believed he was 19 or older. At that time, he played football for Palatka High School; he was approximately 5'll" tall and weighed 170 pounds. Because of his size and mature-looking face, he could easily have been mistaken for an adult. (Testimony of Adams, Tyler, Strickland.) October 23, 1981, was not r. Strickland's first visit to the lounge. Once before, he had succeeded in purchasing one beer; on other occasions, his identification had been checked and service was refused. He was well aware that he was underage and could not legally purchase alcohol. (Testimony of Strickland.) II. Respondent operates 148 similar liquor stores and lounges throughout Florida. It has announced and repeatedly emphasized to its employees a policy prohibiting sales of alcohol to minors. Its regulations inform new employees of the law against sales of alcohol to persons under 19, and require that bartenders check I.D.s of anyone who "doesn't look 23" or older. Periodic bulletins which must be signed and returned by employees, and posted notes of supervisors' meetings have reiterated respondent's company-wide policy against the sale of alcohol to minors. Further, the manager and night manager of store #65 frequently reminded their employees of the policy against sales to minors and the requirement to check I.D.s when in doubt about a customer's age. Ms. Tyler and Ms. Adams, the barmaids who served Mr. Strickland, were aware of this policy. (Testimony of Holloway, Tyler, Adams; R-1, R-2, R.-3.) On the whole, respondent has been successful in preventing sales of alcohol to minors in its stores and lounges. In the last ten years, it has been cited only ten times for violations relating to the unlawful sale of alcohol to minors. But a disproportionate number of those violations occurred at the Palatka #65 lounge. On two previous occasions, in 1979 and 1981, respondent admitted to unlawful sales of alcohol to minors at the #65 lounge and paid civil penalties. (Testimony of Holloway; P-1, P-6.) Yet, after each of these violations, including the incident involving Mr. Strickland in October, 1981, respondent's remedial action was simply to reinstruct employees at #65 of its policy not to serve alcoholic beverages to minors and to prevent such incidents from occurring. This action was not substantially different from the routine reminders it periodically issued to its employees in the past. (Testimony of Holloway, Ottens, Lindholtz.) At lounge #65, signs were not posted calling attention to its policy that sales to minors were prohibited. Neither did it post an employee at the main entrance to check I.D.s and keep minors out of the premises. (Testimony of Holloway, Ottens, Lindholtz.) III. The foregoing findings support a factual inference that respondent was not reasonably diligent in taking steps to prevent further repetition of sales to minors at its #65 lounge. Having been placed on notice that such incidents were occurring in disproportionate number at #65 lounge, it had a duty to investigate, to determine why such a phenomenon had occurred, and to take further precautionary measures. Instead, it was satisfied to simply remind the employees of store #65 of longstanding company policy.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license for lounge #65 be suspended for thirty days from entry of the final order in this proceeding. DONE and RECOMMENDED this 1st day of October, 1982, in Tallahassee, Leon County, 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 1st day of October, 1982.
Findings Of Fact 1718, Inc. held alcoholic beverage license number 58- 1581, Series 2-Cop; for the premises of the Fox Hunter, 1718 South Orange Avenue, Orlando, Florida, at all times relevant to these proceedings. The license was issued on June 18, 1981. Although the testimony of Captain Jack B. Wallace that John and Fay Knight (Knights) were the owners of the real property located at 1718 South Orange, Orlando, Florida, went unrebutted, the record does not reveal the date when John and Fay Knight became the owners of the real property located at 1718 South Orange Street, Orlando, Florida. The Knights were absentee landlords and leased the premises to 1718, Inc. d/b/a/ Fox Hunter (Fox Hunter) through a real estate agency in Orlando, Florida. On June 3, 1985 Petitioners mailed a letter to the Knights informing them that the alcoholic beverage license of Fox Hunter had been suspended on an emergency basis due to 13 alleged sales of narcotics on the premises by employees of Fox Hunter; that Respondent had requested a hearing on the charges; that Petitioner would seek license revocation with prejudice as provided in Section 561.58, Florida Statutes (1983); that the Petitioner would present evidence at the hearing in support of license revocation with prejudice; and that the Knights would be advised of the date, time and location of the hearing at a later date. The record does not reveal that Petitioner ever advised the Knights as to the date, time and location of the hearing, however, counsel for Respondent announced at the time of the hearing that he would be representing the Knights. Additionally, the record does not reveal that a copy of the original or Amended Notice To Show Cause was ever furnished to the Knights. Nor does the record reveal that the Knights had any knowledge of any previous violations at the premises. On April 29, 1985, Orlando Police Officer Kerry Farney (Farney) went to the premises of Fox Hunter and spoke to dancer Joyce Travis concerning the purchase of cocaine. Joyce agreed to sell Farney a half gram for $50.00. Farney gave Joyce $55.00, including $5.00 for a dance which she performed, and Joyce returned to Farney a dollar bill wrapped around two- plastic packages of cocaine. Officer Farney returned to the Fox Hunter on April 30, 1985, and spoke with dancer Lisa Nolen a/k/a Dusty concerning the purchase of a quarter gram of cocaine. Dusty agreed to sell the cocaine and obtained $25.00 from Farney. She later returned to Farney and handed him a plastic package containing cocaine. Officer Farney again returned to the Fox Hunter on May 2, 1985 and was later met there on this same day by Investigator Rodney Russ (Russ). The Officers arranged to purchase cocaine from the dancer Dusty. Farney gave Dusty $30.00, $5.00 for a dance and $25.00 for a quarter gram of cocaine. Russ gave Dusty $50.00 for one half gram of cocaine. After going into the dancers' locker room, Dusty returned to the officers and handed to Farney a dollar bill wrapped around two plastic packages of cocaine and asked Farney to pass it to Russ. Farney passed the cocaine wrapped in the money to Russ which Russ opened and inspected the two plastic-packages of cocaine contained therein. Later that same night Dusty delivered the cocaine to Farney which he had paid for earlier. Russ returned to the Fox Hunter on May 3, 1985 and entered into conversation with dancer Laura, who asked if he was looking for a quarter gram of cocaine. Russ stated that he wanted a half gram and Laura responded that she would see what she could do. After speaking with an unknown male patron, Laura returned to Russ and stated that all he had left was three- tenths of a gram for $30.00. Russ stated that he would take the three tenths of a gram and gave Laura $30.00. Laura again approached the unknown patron and then returned to Russ after being assured by Russ that he was not a cop or with law enforcement, placed a bill in his pocket. Russ removed and opened the bill and inspected the plastic package of cocaine. Russ returned to the Fox Hunter on May 7, 1985 and entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. Joyce stated that she would be able to get it later. Joyce subsequently asked Russ how much he wanted to buy and Russ responded that he wanted a half gram. Russ gave Joyce a $100.00 bill and she went into the women's dressing room. Joyce later returned to Russ and gave him $25.00 change wrapped around two clear plastic packages of cocaine. Russ returned to the Fox Hunter on May 8, 1985, and was solicited by dancer Joyce for the purchase of two beers. Russ returned to the premises of the Fox Hunter on May 9, 1985, and entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. Joyce left Russ to talk to an unidentified black male and returned to inform Russ that she could get the half gram of cocaine from the black male after he split it up and that Russ would have delivery soon. The male went into the restroom and when he emerged from the restroom, Joyce approached him and then went into the women's restroom. After exiting the restroom, Joyce performed a dance for Russ, during which she told him to take a dollar bill out of her garter. Russ took the dollar bill and opened it up to inspect two tinfoil packages of cocaine. Russ returned to the licensed premises on May 10, 1985, and again entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. When Joyce agreed, Russ handed her $75.00. Joyce subsequently returned to Russ and handed him a plastic package of cocaine which Russ placed into the cellophane wrapper of his cigarette pack. Joyce stated that the person from whom she had obtained the cocaine only had a quarter gram but would be getting a delivery soon, at which time Joyce would give Russ his other quarter gram. Russ did not obtain the additional quarter gram prior to leaving the premises on this occasion. Russ returned to the Fox Hunter later the night of May 10, 1985 and spoke with Joyce about obtaining his remaining quarter gram of cocaine and she advised him that delivery had not been made. Russ then talked with dancer Laura about obtaining some cocaine. Laura first said that it would be after 2:00 a.m. when the bar closed but when Russ told her he could not wait that long she obtained a short quarter gram from an unidentified white male. Laura then left to go into the women's restroom. When she returned to Russ, Laura placed a plastic package of cocaine in his pocket stating that she had tried the substance and it was good. Russ removed the package from his pocket and inspected it. As Russ was leaving, Joyce approached him near the entrance and handed him a plastic package containing his remaining quarter gram of cocaine. Russ returned to the premises of the Fox Hunter on May 15, 1985, and was solicited by the dancer Dusty to purchase her a bottle of champagne for $5.75, which he did. Russ again went to the Fox Hunter on May 16, 1985 and entered into conversation with the dancer Laura concerning the purchase of a half gram of cocaine. Laura stated that she would be able to get him some. Laura approached and spoke to an unknown patron and the dancer Michelle, after which she went into the women's dressing room. She shortly returned to Russ and placed two plastic packages of cocaine into his pocket. On May 17, 1985, the Respondent served an Emergency Order of Suspension and Search Warrant on the Fox Hunter. Located during the search was a dollar bill wrapped around a package of cocaine, a plastic package of cocaine, a package of marijuana and several marijuana cigarettes. The sale or delivery of the cocaine on April 29, 30, 1985 and May 2, 3, 7, 9, 10, 16, 1985 to investigator Farney and Russ took place in and around the dance area of the premises. On April 20, 1982 the Respondent served a letter of warning to Fox Hunter alleging that on August 4, 1981, an employee had solicited the sale of an alcoholic beverage in violation of Section 562.131, Florida Statutes and further alleging that on October 30, 1981, an employee had delivered a controlled substance to a police officer on the premises. No proof was offered as to the disposition of those matters, or indeed, whether the incidents ever actually took place. In July, 1984, the manager of Fox Hunter --Lawrence Siegel -- apprehended one of its employees and a patron engaged in a drug transaction: he detained them and called the Orlando Police Department, and the two were taken into custody. The Petitioner's response to this action was to issue a citation against the Fox Hunter for the alleged sale, even though it was Lawrence Siegel who uncovered the transaction and apprehended the perpetrators. Mr. Siegel contacted Lt. Farmer of the Orlando Police Department and requested assistance in placing an undercover officer in the lounge as an employee. Mr. Siegel wanted to interdict narcotics and assist in the apprehension of the persons who might be dealing with them. However, the request was turned down because, as Lt. Farmer explained, the police department did not have the necessary resources to assist in this manner. The record is not clear as to the period of time Lawrence Siegel maintained contact with the police, but he did contact them about the problem, identifying suspected dealers and providing names and descriptions of vehicles. However, Jason Robaudo replaced Lawrence Siegel as night manager during this period of time. James Robaudo was present in the licensed premises during most of, if not all of, the time during which the unlawful activities accursed. Although the record is not entirely clear on the details, there were other alcoholic beverage establishments in the same general area that had been charged with the sale of controlled substances on the premises where a heavy fine plus a short license suspension had been imposed rather than a license revocation or a license revocation with prejudice.
Recommendation For all of the foregoing reasons it is RECOMMENDED that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 58-1581, Series 2-COP, issued to 1718, Inc., d/b/a Fox Hunter. Respectfully submitted and entered this 3rd day of September, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 3rd day of September, 1985. COPIES FURNISHED: Louisa E. Hargrett, Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Richard L. Wilson, Esq. 1212 East Ridgewood Street Orlando, Florida 32803 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr. Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether petitioner's application for transfer of an alcoholic beverage license should be granted, or denied on the ground that the license has been revoked.
Findings Of Fact On January 25, 1977, Armando Calo, through counsel, filed a Notice of Lien with DABT stating that he was a bona fide mortgagee on an alcoholic beverage license (4-COP, lic. no. 23-1901) held by the Intimo Lounge, Inc., 1601 Collins Avenue, Miami Beach, Florida. Citing Section 561.65, Florida Statutes, he enclosed a copy of his chattel mortgage and a check payable to DABT in the amount of $5.00. (P-1) By return letter dated February 4, 1977, C. L. Ivey, Jr., DABT's Licensing Supervisor, acknowledged receipt of Mr. Calo's Notice of Lien and stated that it would be made part of the Intimo Lounge, Inc. license file. At that time, administrative license revocation proceedings were pending against Intimo Lounge, Inc. So Mr. Ivey sent a copy of his February 4, 1977 acknowledgment letter to DABT's Miami Office, and included this notation: P.S. John: You need to immediately notify Attorney Solomon's [Calo's attorney's] office if and when an order to revoke is issued. He will then go to court to seek a judicial transfer. (P-2) On March 22, 1977, Charles A. Nuzum, DABT's Director, executed an order revoking Intimo Lounge, Inc.`s alcoholic beverage license. (R-1) Eight days later, on March 30, 1977, Armando Calo sued Intimo Lounge, Inc., seeking to foreclose his chattel mortgage on its alcoholic beverage license. By letter of the same date, counsel for Mr. Calo, citing Section 561.65, Florida Statutes, notified DABT of the filing of the foreclosure action; he also asserted that Mr. Calo had no knowledge of or participation in the causes for which the Intimo Lounge, Inc. beverage license was revoked. Copies of subsequent pleadings filed in the action were sent to DABT's legal department. DABT thus knew the suit was filed and was aware of its continued progress. (Testimony of Barone; P-3, P-4, P-11) The Circuit Court of Dade County ultimately entered a final judgment of foreclosure in Mr. Calo's favor. On August 17, 1979, pursuant to such judgment, the Clerk of the Court sold the Intimo Lounge, Inc. beverage license, at public sale, to intervenor Rene Valdes, 1710 N.W. 7th Street, Suite 7201, Miami, Florida for $25,000. Notice of the sale was published in the Miami Review, a newspaper circulated in Dade County. On August 28, 1979, the Clerk issued a Certificate of Title pursuant to Chapter 45, Florida Statutes. This Certificate certified that Intimo Lounge, Inc.`s alcoholic beverage license (4-COP, license no. 23-1901) had been sold to Rene Valdes on August 17, 1979, and that "no objections to the sale have been filed within the time allowed for filing objections." (Testimony of Valdes; P-5, P-6) Although DABT was aware of the protracted mortgage foreclosure litigation involving the Intimo Lounge, Inc. beverage license --which it had earlier revoked -- it never protested or sought to block the foreclosure action. It was not a party to the action; neither did it attempt to become one. (Testimony of Barone, Valdes) In September, 1979, a month after the judicial foreclosure sale, Nathaniel Barone, counsel for Intimo Lounge, Inc., wrote R. B. Burroughs, Jr., Secretary of the Department of Business Regulation, asking what steps were necessary to keep the Intimo Lounge, Inc. beverage license viable. An internal memorandum suggests that DABT was, at first, unprepared to answer that question and preferred, instead, to delay answering until an application for the license was filed. But, on October 4, 1979, Harold F. X. Purnell, the Department's General Counsel replied on behalf of Secretary Burroughs: It is the Division's position that the . . . license has been and presently is revoked pursuant to the actions pre- viously taken by [DABT]. Further, that in the absence of an order of appropriate jurisdiction entered in a proceeding to which the Division is a party we are powerless to transfer such license. (Testimony of Barone; P-7, P-10) Meanwhile, Rene Valdes, notified DABT of his purchase of the Intimo Lounge, Inc. beverage license and asked that it be held in escrow while he found a suitable purchaser and location. When DABT refused, Mr. Valdes petitioned the court, which had rendered the foreclosure judgment, to require DABT to process and transfer the license. The court denied his petition, at least in part, because DABT was not a party to the proceeding. After the court hearing, Mr. Valdes, together with his attorney, Charles Kelly, and DABT's counsel, Mr. Purnell, met outside the chambers and discussed their next step. Mr. Kelly discussed seeking a mandamus ordering DABT to issue the license. Mr. Purnell suggested, instead, that Mr. Valdes find a location and purchaser for the license, then submit an application to DABT -- something which Mr. Valdes had not yet done. Although Mr. Purnell did not assure them that the application would be approved, both Mr. Valdes and Mr. Barone gained an impression that it would be. 2/ Mr. Valdes, following Mr. Purnell's suggestion, found a location and buyer, then applied for a transfer of the license. DABT's denial resulted in this proceeding. (Testimony of Barone, Valdes) Under Section 561.65(1), Florida Statutes (1977), a lender licensed by the state holding a lien on an alcoholic beverage license had the right to enforcement of his lien against the license within 12 days after any order of revocation, provided it was revoked for causes which the lienholder had no knowledge and did not participate. If the lienholder purchased the license at foreclosure sale, he could operate under it or transfer it to a qualified person. Until August 17, 1980, it was DABT's long-standing practice and policy to make no distinction between licensed and unlicensed lenders (lien-holders). It allowed both licensed and unlicensed lienholders to file notice of liens against beverage licenses and honored the subsequent transfer of the license if the lien was enforced within 12 days of revocation. This practice was abruptly changed on the basis of an agency legal opinion. On August 17, 1980, one month before Gui-Dom filed its application, DABT's General Counsel rendered a legal opinion limiting Section 561.65 relief to lenders licensed by the state. After that date, until 1981, when the legislature removed the "licensed lender" language of Section 561.65, DABT applied Section 561.65 literally and only accepted liens filed by licensed lenders. (Testimony of LaRosa; P-13) But in October, 1980, DABT did not deny Gui-Dom's application for transfer of the Intimo Lounge, Inc. license because Armando Calo, the lienholder, lacked a lender's license. Instead, the application was denied because the license had been earlier revoked. As later explained by Barry Schoenfeld, DABT's Chief of Licensing: 2 [DABT] felt at the time that . . . there really was no license, that the license had already been revoked, and that there was no license for the court to sell [to Valdes]. (P-13, p. 25). But Section 561.65 specifically permits liens, under specified conditions, to survive license revocation. When asked to explain DABT's position in light of Section 561.65, Mr. Schoenfeld replied, "I don't know that I can explain it." (P-13, p. 16) Neither could Mr. Schoenfeld adequately explain why, in cases similar to this, DABT has approved license transfers while, here, they have not. (P-13, p. 23) It was not until after the denial of Gui-Dom's application that DABT contended that Section 561.65, Florida Statutes (1977), provides no relief because Armando Calo was not a licensed lender. (P- 9, P-13). Rene Valdes, a beverage license broker, operates a business known as "Beverage License, Inc." He specializes in obtaining and transferring alcoholic beverage licenses for clients and has a working knowledge of the Beverage Law, including DABT rules and practice. When he purchased the Intimo Lounge, Inc. license at the judicial sale, he did not know that it had been revoked by DABT. He did, however, know that there was license revocation litigation between Intimo Lounge, Inc. and DABT. He also knew that DABT had issued an emergency order suspending Intimo Lounge, Inc.'s license; and he knew that there were circuit court foreclosure proceedings involving the license. Yet he failed to ascertain the status of the license -- either by checking the files of DABT or the circuit court. But even if he had discovered that the license had been revoked, under DABT's long-standing practice and interpretation of Section 561.65, it would have made no difference. The license would have "survived" revocation because Armando Calo had timely enforced his lien. And it could have been sold at a judicial sale and transferred to a new qualified purchaser. (Testimony of Valdes, Harris; P-13) DABT has provided no record foundation for its abrupt discontinuance of prior agency practice and policy in August, 1980, a policy which allowed both licensed and unlicensed lien holders to file and timely enforce liens against beverage licenses. This policy enabled a lien to survive license revocation; and the license, which had been revoked earlier could then be transferred by judicial sale. The only explanation given for the change in policy, a change which DABT now relies on as cause for denying Gui-Dom's application, is that the agency changed its legal interpretation of Section 561.65 (1977). (Testimony of LaRosa; P-13)
Recommendation Based on the foregoing, it is RECOMMENDED: That Gui-Dom's application for transfer of alcoholic beverage license no. 23-1901, series 4-COP, be granted. DONE AND RECOMMENDED this 3rd day of February, 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 3rd day of February, 1983.
Findings Of Fact On April 26, 1982, the Petitioner Dania Bank, filed a request with the Respondent Department of Business Regulation, Division of Alcoholic Beverages and Tobacco to record a lien holder's interest against alcoholic beverage license 16-15 issued to the Respondent Chula, Inc., doing business as Chalet Ole and Chula Liquors. The lien was created on July 3, 1981, and filed with the Secretary of State on August 10, 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Division of Alcoholic Beverages and Tobacco denying the Petitioner Dania Bank's request to record a lien against alcoholic beverage license number 16-15. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 31st day of October, 1983. COPIES FURNISHED: Richard E. Whitney, Vice President The Dania Bank 255 East Dania Beach Boulevard Dania, Florida 33004 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether the Petitioners are entitled to a transfer of the quota license they attempted to apply for in their initial application. Whether the Petitioners are entitled to an alcoholic beverage license for a restaurant based upon their second application. Whether the Petitioners are entitled to an alcoholic beverage license based upon their third application in spite of the county's refusal to approve the zoning of the proposed location until a pending declaratory judgment before the circuit court is resolved. Whether the Respondent is estopped to deny any of the applications because of the representations made by a field agent for the agency that to his knowledge, there were no problems at the proposed location.
Findings Of Fact The joint stipulation of facts entered into by the parties on December 21, 1988, are adopted as the findings of fact in this proceeding. A copy of the stipulation is attached and made part of this Recommended Order.
Findings Of Fact From October 1, 1975, up to and including April 14, 1976, the Respondent, Bobbie P. Miles, d/b/a D. J. `s Lounge, held State of Florida Alcoholic Beverage License No. 26-91, Series 2-COP, for operation at a premises of 6644 Arlington Road, Jacksonville, Florida. A copy of this license is found in Composite Exhibit No. 1, admitted into evidence. Sometime in the beginning of April, 1976, Detective Claude Locke with the Jacksonville Sheriff's Office, received information from an informant that a minor female was selling alcoholic beverages in D. J.`s Lounge. This minor female was identified as being 5 foot 7 inches tall with reddish blonde hair. Locke went to D. J.`s Lounge and was served a beer by a woman fitting that description. No other employee in the bar was serving alcoholic beverages while he was there for 45 minutes. Subsequent to his investigation of the bar, Officer Locke contacted the State of Florida, Division of Beverage, about his activities. Officers B. W. Rowe and K. A. Boyd of the Division of Beverage acting on Officer Locke's report went to D. J.`s Lounge on April 14, 1976. The officers took a seat at the bar and a white female who was playing the pinball machine went to the bar and served them alcoholic beverages by serving the beverage and taking the money and returning the change from the purchase. This person who served them had reddish blond hair and was later identified in the course of the hearing as being one Darlene Usury. After Darlene Usury served the beer to the officers she went behind the bar and poured herself a beer and began to drink that beer. Her glass of alcoholic beverage was checked by the officers on the basis of their expertise and found to be an alcoholic beverage, and is offered into evidence as Petitioner's Exhibit 3, admitted. The alcoholic beverage served them was also tasted, based upon their expertise and found to be an alcoholic beverage. There was another woman working at the bar on April 14, 1976. This woman was Donna Moody. Ms. Moody indicated that Usury was not employed in the bar and that she had never checked her identification because the owner of the bar, Bobbie P. Miles, had allowed Darlene Usury to drink on other occasions. Later in the evening of April 14, 1976, the owner and Respondent, Bobbie P. Miles, came to the bar and indicated that he had met Darlene Usury at another establishment which he was operating and had been shown an identification. This identification was a Pennsylvania license issued to Debra Yanni, and this identification showed Darlene R. Usury to be more than 18 years of age on April 14, 1976. The identification card is Petitioner's Exhibit No. 2 admitted into evidence. The identification card does not have a photograph. The identification card was initially shown to Bobbie P. Miles at the Jubille Bar a year or more before April 14, 1976. Darlene R. Usury was in fact 17 years old on April 14, 1976, at the time she served the alcoholic beverages to the beverage officers and consumed an alcoholic beverage. Darlene Usury explained that her action of serving the beer to the beverage officers was an isolated incident and she only did it to help out Donna Moody, the person in charge of the bar on that night. Bobbie P. Miles said that Darlene R. Usury was not employed on that night or on any other night. Although Darlene R. Usury had served the alcoholic beverages to Officers Rowe and Boyd, Donna Moody was also working behind the bar at that time. Officer Locke was unable to identify Darlene R. Usury as the woman who had served him alcoholic beverages on the prior occasion in April, 1976.
Recommendation It is RECOMMENDED that the licensee, Bobbie P. Miles, be fined in the amount of $150.00 for the violation as established by the Administrative Complaint. DONE and ENTERED this 1st day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Division of Beverage 725 Bronough Street The Johns Building Tallahassee, Florida 32304 Bobbie P. Miles pro se 6644 Arlington Road Jacksonville, Florida
The Issue Whether respondent's alcoholic beverage license should be revoked or suspended on grounds that its corporate officer was convicted of a federal crime--Conspiracy to Import Marijuana.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: In 1977, the Division issued an alcoholic beverage license No. 23-276, series 4-COP, to licensee. (Joint Exhibit Nos. 1, 8.) At all times material to this proceeding, Eugene Willner has been an owner and officer of the licensee corporation. On August 27, 1980, Eugene Willner was convicted of violating federal law; the U.S. District Court of the Eastern District of Louisiana found him guilty of Conspiracy to Import Marijuana, a violation of Title 21 U.S.C. 963. (Joint Exhibit Nos. 1, 4, 8.) By application dated March 10, 1981, the licensee sought Division approval to transfer the beverage license in question to a new owner. The Division notified licensee that it intended to deny the application because of the pending administrative charge against the licensee, the charge which is the subject of this proceeding. (Joint Exhibit Nos. 5, 6, 8.)
Recommendation Based on the foregoing, it is RECOMMENDED: That licensee's alcoholic beverage license No. 23-276, series 4-COP, be REVOKED. DONE AND RECOMMENDED this 3rd day of February, 1982, 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 3rd day of February, 1982.
The Issue By Notice to Show Cause filed December 19, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the alcoholic beverage license number 60-0883 issued to James R. Rogers, trading as Ray's Tavern. As grounds therefor it is alleged that Rogers, in order to secure a license to sell alcoholic beverages, made false written statements to the agents of Respondent in violation of 537.06 and 561.29 F.S. One witness was called by Petitioner and four exhibits were admitted into evidence.
Findings Of Fact On December 21, 1977, notice of the hearing scheduled to commence on January 12, 1978 at 1457 N. Military Trail, West Palm Beach, Florida was served on Respondent by a beverage agent of Petitioner. (Exhibit 1) In answer to question 13 on the application for Transfer of Alcoholic Beverage License, which asked "Has a license covering the place described in this application or any other place in which any of' the above named persons were at the time interested ever been revoked by the Director?" Respondent answered "No". (Exhibit 2). By Order of the Director of the Division of Beverages dated September 30, 1955 (Exhibit 3) the alcoholic beverage license issued to James R. Rogers, Curley's Tavern, aka Ray's Tavern was revoked for maintaining gambling paraphernalia and permitting gambling on the licensed premises.
