The Issue Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, with the intent to sell, a controlled substance; cocaine, and whether said cocaine was sold to one E. Santiago, for the price of $100 in U.S. currency, and whether said sale was consummated at the aforementioned beverage license premises, on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine contrary to Section 893.13, F.S. thereby violating Section 561.29, F.S. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc. d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $100 U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage licensed premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $2,200, U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises, on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. A count seven was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing. A count eight was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing. Whether or not on or about November 20, 1976, a bottle of non-tax paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered on the licensed premises, and whether or not said bottle bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid, contrary to Section 562.16, F.S., thereby violating Section 561.29, F.S. Whether or not on or about September 1, 1976, and continuing until on or about November 24, 1976, the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did maintain a public nuisance, to wit; maintain a place where controlled substances were illegally sold, kept or used, contrary to Section 823.10, F.S., thereby violating Section 561.29, F.S. Whether or not investigation revealed that on or about November 20, 1976, the Respondent, its agent, servant, or employee, did remove, deposit, or conceal a beverage, to wit, one (1) 2,000 cc bottle of Ron Medeliin Rum, with the intent to defraud the state of tax, contrary to Section 562.32, F.S. and Section 562.30, F.S., thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to this complaint the Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, was the holder of a license no. 23-1901, held with the State of Florida, Division of Beverage, and that license was for the premises located at 1601 Collins Avenue Miami Beach, Florida. The management of the licensed premises makes arrangements to hire entertainment in the form of musicians. This arrangement is made through agreement with the band leader. One of these agreements was made with a band leader who had as his band member Leouigildo Hernandez. On September 28, 1976, Officer E. Santiago, of the Miami Beach, Florida, Police Department entered the licensed premises and while in the licensed premises entered into discussion with Hernandez. Hernandez left the bar proper and came back with an amount of a substance known as cocaine. Santiago paid Hernandez $100 for the quantity of cocaine and the sale was consummated in the licensed premises. On October 30, 1976, Officer Santiago returned to the licensed premises. Santiago had been in the licensed premises many times prior to that occasion. Among the persons he had seen in the bar was Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales. Morales was the girlfriend of Anthony Bilbao, one of the principals in the ownership of the licensed premises. Morales had also served Santiago drinks in the bar on more than 50 occasions. On the evening in question, October 30, 1976, discussion was entered into between Santiago and Morales about the purchase of a substance known as cocaine. Morales produced a quantity of the cocaine and reached across the bar that she was standing behind and handed the quantity of the substance cocaine to Santiago, who was in the area where customers were served at the bar. Santiago paid her $100 for the cocaine. In the late hours of November 4 and early hours of November 5, 1976, Santiago again entered the licensed premises, his purpose for going to the licensed premises was to purchase a large quantity of cocaine from Morales. This arrangement had been entered into based upon the sample of cocaine that had been provided him on October 30, 1976. Morales left the licensed premises and returned 3 to 5 minutes later with a quantity of cocaine, for which Santiago paid her $2,200. On one of the above occasions of a purchase of cocaine from Morales, while in the licensed premises, Morales had conferred with Anthony Bilbao. In the course of that conference, Bilbao told Morales to be careful to whom she sold because "you don't know him", meaning Santiago. In the course of an investigation in the license premises on November 28, 1976, a bottle of non-tax-paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered in the licensed premises, which bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid. The size of the bottle was 2,000 cc.
Recommendation Based upon the violations as established in the hearing on the notice to show cause, it is recommended that the license no. 23-1901 held by Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, be revoked. DONE AND ENTERED this 24th day of February, 1977, in Tallahassee ,Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Michael B. Solomon, Esquire Division of Beverage Theodore M. Trushin, Law Office The Johns Building 420 Lincoln Road, Number 600 725 Bronough Street Miami Beach, Florida 33139 Tallahassee, Florida 32304 Nathaniel Barone, Esquire 777 N.E. 79th Street Miami, Florida 33138
The Issue Whether Respondents violated the terms of probation of the Consent Agreement, effective January 12, 1990. Whether Respondents committed the violations alleged in the notices to Show Cause.
Findings Of Fact As to Case No. 90-2711: At all times pertinent to this case, Respondents were doing business at 3200 South Orlando Drive, Sanford, Seminole County, Florida as Cesare's Palace, under alcoholic beverage license number 69-00467, series 4-COP-S. On April 19, 1989 a formal hearing was conducted in Sanford, Florida, and presided over by Hearing Officer Mary Clark of the Division of Administrative Hearings, in which the parties were the same. On August 4, 1989, a Final Order was issued in which the Division Director adopted in toto Hearing Officer Clark's findings of fact, all but one of her conclusions of law, and adopted her recommendation for a finding of guilty. The Division Director changed the recommended penalty to a twenty day suspension and a $1,000.00 civil penalty. The twenty day suspension was to commence, and the $1,000 civil penalty was to be paid on August 23, 1989. Respondents timely appealed Petitioner's Final Order on August 14, 1989. On August 22, 1989, Petitioner stayed the imposition of the penalty pending appellate review. Respondents and Petitioner executed a Consent Agreement in settlement of the case. Accordingly, Respondents withdrew their appeal, and timely paid the $1,000.00 civil penalty. Petitioner suspended imposition of the 20 day license suspension for 12 months commencing on January 12, 1990. The Agreement and the Addendum thereto were signed by both Respondents and their attorney. Respondents agreed to abide by certain terms of probation, as set forth in the Consent Agreement, and acknowledged that violation of one or more of the terms of probation would result in the imposition of the 20 day license suspension. The terms of probation called for Respondents to affirm in writing not later than 30 days after the effective date of the Consent Agreement, to the Division of Alcoholic Beverages and Tobacco, that certain specified tasks had been accomplished. The Consent Agreement became effective on January 12, 1990 when it was accepted by the Director, Division of Alcoholic Beverages and Tobacco. On or about February 11 (a Sunday) or February 12, 1990, Law Enforcement Investigator David Ramey went to the licensed premises to ascertain whether Respondents had accomplished the tasks which were to be affirmed in writing to the Division as being accomplished. The task of posting signs indicating that identification was required had been accomplished. The task to provide "written policies and procedures for employees to ensure that they are familiar with Florida drivers licenses, Florida identification cards, and passports; that they are sensitive to the importance of ensuring that alcoholic beverages are not sold to the underaged; that they are capable of, given a birth date, computing age; and that they understand that service of alcoholic beverages must be refused to those whose age and/or identification appear questionable to the employee" was not accomplished. The task of training and instructing all employees on the written policies and procedures relative to identification was not accomplished. The task of carefully monitoring employees to ensure that they are following company policy was not accomplished. No written affirmation reporting accomplishment of the above tasks was forwarded to the Division either within or without the thirty day period. The Consent Agreement included as a term of probation that Respondents become certified responsible vendors by March 1, 1990. Respondents' Application for Certification as a Responsible Vendor is dated March 5, 1990; the application was not forwarded to the Bureau of Vendor Training until April 7, 1990. Respondents had not become certified responsible vendors by March 1, 1990. William Walter Proctor was born on October 1, 1970 and has been serving as an underaged operative with the Division of Alcoholic Beverages and Tobacco since late January or early February 1990. When serving as an underaged operative, Mr. Proctor is to bring his drivers license, and to possess only the money given to him by the investigators. If asked for identification, Mr. Proctor is instructed to provide his drivers license which accurately reflects his date of birth. If asked his age, Mr. Proctor is instructed to answer truthfully. On March 6, 1990, Proctor was serving as an underaged operative with the Division of Alcoholic Beverages and Tobacco. He was working with Investigators Dave Ramey and Mark Douglas. During the evening Proctor entered the licensed premises, Cesare's Palace, located at 3200 South Orlando Boulevard, Sanford, Florida. Investigator Douglas also entered the premises. Proctor went to the bar and took a seat. The bartender took Proctor's order for a Michelob light beer, and asked to see Proctor's identification. Proctor gave the bartender his drivers license. The bartender took the license to the end of the bar, held it under a light, and then returned the license to Proctor and handed him the beer he had ordered. Proctor observed the bartender open the Michelob Light beer, and place the beer in front of Proctor. Proctor took possession of the beer, and the bartender took possession of the $1.85 provided by Proctor in payment for the beer. Proctor immediately turned the Michelob Light beer over to Investigator Douglas. Proctor identified Petitioner's Exhibit 3 as the drivers license he provided the bartender at Cesare's Palace on March 6, 1990. Mark Douglas is a law enforcement investigator for the Division of Alcoholic Beverages and Tobacco. He, along with Investigator Ramey were working with the underaged operative William Walter Proctor on March 6, 1990. Investigator Douglas entered the licensed premises, Cesare's Palace around 9:15 p.m. on the 6th of March. Some ten minutes later, underaged operative Proctor entered the premises. Investigator Douglas observed Mr. Adams open a bottle of Michelob Light beer and place it in front of Mr. Proctor. Investigator Douglas deals with alcoholic beverages every day of his working life. He is familiar with Michelob beer, and has seen bottles of Michelob Light before. The bottle of Michelob Light he received from Mr. Proctor on the 6th of March looked like the other such bottles he had seen. Additionally, Investigator Douglas took a sample of the beer prior to destroying the remaining contents of the bottle. Investigator Douglas has been trained in identifications; drivers licenses in particular. He knows that the yellow background against which Proctor's picture is depicted on Petitioner's Exhibit 3 means that the individual to whom the license was issued was under 21 at the time of the issuance. Investigator Douglas identified Respondent Polidoro as having been seated at the end of the bar when the sale to Proctor occurred. When Mr. Adams was looking at Mr. Proctor's drivers license, Respondent Polidoro leaned forward and looked down the bar. Respondent Polidoro has very bad vision; he is both nearsighted and farsighted. His glasses were not on at the time of the events involving Adams and Proctor. Respondent Polidoro has known Adams for two years and has complete confidence in him. On March 6, 1990, Respondent Polidoro was not aware that his bartender, Adams wore reading glasses. Adams made the mistake of forgetting his glasses. He left them in his room. Thus he was without his reading glasses while tending bar at the licensed premises on March 6, 1990. Respondent Polidoro is of the opinion that he has twice been entrapped by Petitioner into selling an alcoholic beverage to a minor, and that Petitioner, on 15 other occasions has failed to entrap Respondents. As to Case No. 90-5983: Marino Benevides went to work for Respondents as the housekeeping manager of the Cavalier Motor Inn, located at 3200 South Orlando Drive, in April, 1988. On or about May 1, 1989, Benevides leased from Respondents the lounge that is part of the Cavalier Motor Inn complex. The rent was $7500 a month, and was paid to Respondent Polidoro. Although the lease agreement was reduced to writing, it was never signed. Benevides hired and paid the employees of the lounge. Benevides hired and paid for the entertainment in the lounge. Benevides paid the utility bill for the lounge. Had there been net profits generated by the lounge, the net profits would have been received by Benevides. Benevides' obligation to Respondents was to pay them a fixed sum of $7500 a month. Payment of distributors for alcoholic beverages was made by the Respondents who were then reimbursed by Benevides. Benevides could not pay the distributors directly because the liquor license was not under his name. Respondent Milazzo was aware that leasing the lounge was a violation. The Respondents had the authority to "kick out" Benevides and that is what they did on January 27, 1990. "No violations of Section 562.11(1)(a), Florida Statutes during the probationary period" is a term of probation in the Consent Order.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondents be found guilty of the following offenses: Respondents violated the terms of probation contained in the Consent Agreement, dated January 12, 1990, as follows: Respondents did not affirm to the Division, prior to February 12, 1990, that written policies and procedures for employees to ensure compliance with the Florida Beverage Laws had been established; that all employees had been properly trained in the identification of underaged persons; and did not carefully monitor all employees to ensure that they were following company policy. 1990. Respondents did not become certified responsible vendors by March 1, On March 6, 1990, during the probationary period, a bartender employed by Respondents, on the licensed premises, sold an alcoholic beverage to a person under 21 years of age. On March 6, 1990, a bartender employed by Respondents sold an alcoholic beverage on the licensed premises to a person under 21 years of age, in violation of Sections 562.11 and 561.29, Florida Statutes, and Respondents were negligent in failing to exercise due diligence in supervising its employees and maintaining surveillance over the premises. Respondents failed to maintain control of the licensed premises by leasing the premises to an independent contractor contrary to Rule 7A-3.017, Florida Administrative Code. It is further RECOMMENDED that: Respondents' probation be revoked and that the alcoholic beverage license held by Anthony J. Milazzo and Cesare A. Polidoro, License No. 69-00467, Series 4-COP-S be suspended for 20 days. Based on the sale of an alcoholic beverage to a person under age 21 and for failure to maintain control of the licensed premises, Respondents' alcoholic beverage license, No. 69-00467, Series 4-COP-S, be suspended for 90 days, to run concurrently with the suspension for violation of probation, pay a fine of $1,000 and submit proof of compliance with the terms of the Consent Agreement prior to reinstatement of the license. DONE AND ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact Accepted in substance: paragraph 1 through (blank on original document-ac) Respondent did not file proposed findings of fact. COPIES FURNISHED: John B. Fretwell Deputy General Counsel Dept. of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Richard A. Colegrove, Jr., Esquire 101 W. First St., Suite C Sanford, FL 32771 Leonard Ivey, Director Dept. of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronough St. Tallahassee, FL 32399-1000 Joseph Sole Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000
Findings Of Fact The Respondent, Cornelia T Brown, doing business as the Oasis Restaurant Bar and Lounge, is the holder of beverage license No. 45-356, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located on Douglas Road, Groveland, Florida. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has its responsibility the licensure and regulation of beverage license holders in the State of Florida. On June 12, 1980, pursuant to a search warrant, Lake County Sheriff and Groveland Police officials accompanied by Petitioner's Beverage Officer, conducted a search of the licensed premises. Respondent was present throughout the investigation. Among the items seized as suspected controlled substances were seven plastic baggies and eight small manila envelopes containing a total of 52.1 grams of cannabis. Currency in the amount of $2,273,67 was also seized. The cannabis and currency were contained in a purse belonging to Respondent. The purse was discovered in the kitchen of the licensed premises, an area not open to bar/restaurant patrons or other members of the public.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2 and 4. It is further RECOMMENDED that County 3, which duplicates County 2, and Count 5, be DISMISSED. It is further RECOMMENDED that Respondent's License No. 45-356 be REVOKED. DONE AND ENTERED this 30th day of September 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER 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 30th day of September 1981. COPIES FURNISHED: Cornelia T. Brown Route 1, Box 350-7 Groveland, Florida 32736 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
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.
The Issue Whether or not on or about the 14th day of May, 1976, Mary Lener Arnold, a licensed vendor, did have in her possession, permit or allow someone else to have unlawfully in their possession on Mary Lener Arnold's licensed premises, alcoholic beverages, to wit: 9 half-pints of Smirnoff Vodka, not authorized by law to be sold under her license, contrary to 562.02, F.S.
Findings Of Fact The Respondent, Mary Lener Arnold, t/a Buggs' Drive Inn, held on May 14, 1976 and now holds beverage license no. 50-2 series 1-COP with the State of Florida, Division of Beverage. This licensed premises is located on Main Street, Greenville, Florida. On May 14, 1976, a confidential informant with the Division of Beverage went to the licensed premise of the Respondent in Greenville, Florida and purchased a bottle of alcoholic beverage not permitted under a 1-COP license. This confidential informant was working for officer B.C. Maxwell of the State of Florida, Division of Beverage. Officer Maxwell along with other officers with the Division of Beverage and officers of the Madison County, Sheriff's office returned to the licensed premises on May 14, 1976 and in looking through the licensed premises found a black bag containing 9 half-pints of Smirnoff Vodka on the licensed premises. This Smirnoff Vodka was not permissible on the licensed premises under a 1-COP license. On the licensed premises at the time of the inspection was one Patsy Jackson Williams who indicated that she was in charge of the premises. The confidential informant who had purchased the bottle of alcoholic beverage indicated that his purchase had been made from the same Patsy Jackson Williams. The black bag with its contents of 9 half-pints of Smirnoff Vodka is Petitioner's Exhibit #2 admitted into evidence. The alcoholic beverage purchased by the confidential informant is Petitioner's Exhibit #4 admitted into evidence.
Recommendation It is recommended that the Respondent, Mary Lener Arnold have her beverage license suspended for a period of 30 days based upon the charge proven in the hearing. DONE and ENTERED this 22nd day of December, 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: Larry D. Winson, Esquire Staff Attorney Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Mary Lener Arnold t/a Buggs' Drive Inn Main Street Greenville, Florida
Findings Of Fact Although there was a detailed evidentiary presentation at the hearing, there was no real disagreement between the parties on the essential facts: Petitioner's husband is disqualified to hold a beverage license on account of a previous felony conviction. He has invested a substantial sum in Ye Olde English Pub, including the real estate that houses the business. Petitioner failed to disclose her husband's interest on forms submitted to respondent in connection with her application to transfer a beverage license to her from the bar's former owner.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for license transfer. DONE and ENTERED this 22nd day of October, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joe Allen, Esquire 417 Eaton Street Key West, Florida 33040 Dennis E. LaRosa, Esquire 725 South Bronough Street Tallahassee, Florida 32303
The Issue This case involves the issue of whether the Respondent's beverage license should be suspended, revoked or otherwise disciplined for multiple sales of controlled substances by employees and patrons on the licensed premises. At the formal hearing, the Division of Alcoholic Beverages and Tobacco called as witnesses, Rodney A. Russ, William J. Spears, and James B. McPherson. The Respondents called as witnesses, Deborah Craven, Tina Meredith, Roxanne Hayes, Walter Humphries, Chris Poulos, Mark Willingham, Leonard Coffee, and Respondent, Fred C. Dillman, II. Petitioner offered no exhibits and Respondent offered and had admitted one exhibit. Counsel for the Petitioner and counsel for the Respondent submitted memoranda of law. Neither party submitted proposed findings of fact and conclusions of law.
Findings Of Fact At all times material to the allegations and charges in this proceeding, the Respondents F. C. Dillman, B. J. Dillman, and F. C. Dillman, Jr., were the holders of a valid beverage license number 47-196, Series 4-COP. This license is held by Respondents as a partnership and is issued to the licensed premises known as Fred's Back Door Lounge, located at 2009 West Tennessee Street, Tallahassee, Florida. On Saturday, November 12, 1983, Beverage Officer Rodney A. Russ entered the licensed premises, Fred's Back Door Lounge, in an undercover capacity. Officer Russ had been requested by his superiors to conduct an investigation of possible drug activity at the lounge. The lounge is divided into a front area and back area by partial walls and there are bars serving drinks located in both areas. The lounge has a front entrance and a back entrance. The back entrance opens out onto a deck or porch area. Upon entering the licensed premises, Officer Russ, and a friend who accompanied him, ordered drinks from a bartender named Brenda. Officer Russ and his friend conversed with Brenda and during the course of the conversation, Officer Russ asked her if she knew someone she trusted that he could get two joints from. Joint is a slang or street term for a marijuana cigarette. Brenda responded that she didn't trust anyone. She then left the area where Officer Russ was seated. Officer Russ observed Brenda approach another bartender named Kathy. Kathy handed a rolled up napkin to Brenda and Brenda then walked back over to Officer Russ and handed the napkin to him. The napkin contained 0.975 grams of marijuana, a controlled substance under Chapter 893, Florida Statutes. On this particular evening, the lounge was approximately 3/4 full and had about 75 patrons. The employees on duty included three bartenders, two doormen, and a gentleman in the package store. The conversation with Brenda about drugs occurred in a low town of voice and could not be overheard by other patrons. Brenda attempted to conceal the transfer of the marijuana and there was no effort on Officer Russ's part to make the transfer obvious to anyone else. Brenda was not paid any money for the marijuana. On November 16, 1983, Officer Russ again went to the licensed premises and on this occasion, he was accompanied by Beverage Officer, Gloria Smith. They entered the lounge at approximately 9:30 p.m. and sat at the bar when Brenda was working mixing drinks. They talked with Brenda, and Officer Russ asked her if she could get a couple of joints for him and Smith. Brenda said she would see what she could do. During this conversation, there were patrons standing 2 or 3 feet behind Officers Russ and Smith. There were no seats on either side of them at the bar. Later that evening, Brenda delivered two joints of marijuana to Officer Russ. The joints were again rolled up in a napkin which Officer Russ did not open. Officer Ruff offered to pay Brenda for the marijuana and she refused to accept payment. This evening, the lounge was almost full and had approximately 100 patrons. There were three bartenders and two doormen on duty in the lounge. The napkins received from Brenda contained two rolled marijuana cigarettes containing 1.5 grams of Marijuana. No other employee participated in the drug transfer and the conversation about drugs was in a soft, low tone of voice. Officer Russ next returned to the licensed premises on November 18, 1983. He went to the lounge along an arrived at approximately 6:40 p.m. There were about 50 patrons in the lounge and Officer Russ took a seat at the back bar where Brenda was working. Of the approximately 50 patrons in the lounge about half of the patrons were in the back area. While seated at the bar, Officer Russ met Larry Mallon. During the conversation, Officer Russ told Mallon that he was looking for some marijuana. Mallon told him he had some and took a clear plastic baggie out of his right coat pocket and handed it to Russ. The marijuana was handed to Officer Russ just below the padded area of the bar. The transfer could have been seen by other persons in the lounge but was not visible to someone behind the bar. The plastic baggie contained 1.1 grams of marijuana. Russ did not pay Mallon for the marijuana. While seated at the bar, Russ also purchased 1 gram of cocaine from Mellon for $75. Mellon took the packet of cocaine from his right coat pocket and handed it to Russ. Russ then placed $80 on the bar and Mallon picked it up and handed him $5 in change. The cocaine transaction took place just as Officer Russ was about to leave the licensed premises. There was an employee present behind the bar approximately three (3) feet from Russ and Mallon when the drugs were transferred but Russ could not say whether the employee was looking at them or not. On this particular evening, Russ had no discussions about drugs with employees of the licensed premises. He left the licensed premises at approximately 9:00 p.m. Officer Russ had never met Larry Mallon. Officer Russ, along with Officer Smith, was next in the licensed premises on November 30, 1983. They entered the lounge at approximately 8:40 p.m. and took the same two seats at the same area of the bar where they had sat on the previous visit. Brenda was working behind the bar and Russ asked her if she had any amphetamines or uppers. She said she believed she-did have some and would look and see. Later, Brenda gave Officer Russ 2 tablets which she said were speed, but testing revealed they were not a controlled substance. He also asked Brenda if she could get some marijuana for Officer Smith. Brenda told Officer Russ that someone in the bar was selling marijuana for $100 an ounce and would break it down to quarter ounce for $30. Kathy, another bartender was present during the conversation about drugs and Brenda informed her that Officer Russ and Officer Smith were looking for some pot (marijuana) Later that evening, Officer Smith met a patron named Butch. Butch joined Officers Russ and Smith at the bar after Smith asked him across the bar about possibly obtaining marijuana. Butch told them he could get them a quarter ounce of marijuana for $30. Be said he would have to leave for about ten minutes but would return. He left and returned a short time later and stated to Officer Russ that he had the marijuana but wanted to make the transfer outside the car. Butch, Officer Russ and Officer Smith went out to the parking lot where Butch sold them 2 grams of marijuana for $30. Officers Smith and Russ returned to the lounge Russ asked Brenda if Butch could be trusted and if his marijuana was any good. She said Butch was o.k. During this conversation, a patron named Jim Bob was present. This particular evening, the lounge was crowded and loud music was playing. There were seven employees on duty in the lounge that night. While in the lounge, Officer Russ observed Brenda with a handful of red tablets and also observed a motorcycle gang type individual smoking what smelled like marijuana on the deck outside the back entrance of the lounge. Officer Russ next visited the licensed premises on December 3, 1983. Russ went to the lounge alone and sat at the bar where Brenda and Kathy were working. He began conversing with Brenda and Kathy and asked Kathy if she knew anyone he could get a quarter of an ounce of marijuana from. Kathy said she would look around and twice during the evening came back to Officer Russ and told him she was still looking. During the evening, Officer Russ also spoke to Butch and asked him if he was holding any drugs. Butch said he was not but that he should check the back porch, that there was someone usually smoking marijuana back there. Officer Russ did not obtain any drugs in the licensed premises this particular evening. Accompanied by Officer Smith, Officer Russ again returned to the licensed premises on December 7, 1983. They arrived at approximately 7:30 p.m. When they arrived, Fred Dillman, Jr., was seated at the front bar talking to Brenda. Officer Russ walked up to the bar and spoke to Brenda, who in turn introduced him to Fred Dillman. Later, after Russ went to the back bar, Brenda came back to the bar and began working behind the bar. Brenda told Russ she wanted to talk to him about her cousins in Bristol. She said her cousins had some good reefer (marijuana) and that she was going over to Bristol for the weekend. She asked if Russ wanted some of the reefer. Brenda initiated this conversation about drugs. While Russ was talking with Brenda, Larry Mellon was standing nearby. After Russ talked with Brenda, Larry Mellon began talking with him about the coke he had given him. Russ told Mellon he wanted to buy some reefer and Smith kept saying she wanted to buy coke. Russ told Mellon he wanted to buy $60 worth of reefer. Mellon then left the lounge with another man and moments later Mellon returned and handed a bag of marijuana to Russ. Russ had given the $60 to Mellon at the bar. The transfer of the money was very open and at the time the transfer took place, Brenda was behind the bar nearby. The baggie which Russ received from Mellon contained 9.9 grams of marijuana. Russ did not talk with any employee other than Brenda about drugs on this particular evening. At no time during the evening did Russ observe Dillman come into the back area of the lounge where Brenda was working. On Friday, December 9, 1983 Officer Russ returned to the licensed premises. He arrived at approximately 8:00 p.m. and went to the back area of the bar where Brenda was working. Officer Russ talked with Brenda about the marijuana she was going to get in Bristol and eventually he asked her if she had any speed. Brenda then took two capsules out of her purse and handed them to Officer Russ. When she retrieved the two capsules from her purse, she placed her purse on the bar and took out medicine vials. She looked in the vials until she found what she was looking for. She handed the two capsules across the bar to Officer Russ. Officer Russ had already received his drink and when he gave her the money, the only thing he received across the bar were the two capsules. The two capsules were phentermine, a controlled substance under Chapter 893, Florida Statutes. Officer Russ gave Brenda $10 for the two capsules and she reluctantly accepted the money. When she took the money, Brenda said she would get the prescription refilled and share them with Officer Russ. On this particular evening, there were approximately 35 to 40 patrons in the lounge and 4 or 5 employees on duty. On December 14, 1983, Officers Russ and Smith went to the licensed premises. Brenda was working that evening and Officers Russ and Smith took seats at the bar where she was working. They talked with Brenda and Officer Russ asked her if she could get them something. Brenda then went over to a male patron seated at the bar across from Officers Russ and Smith and talked with him briefly. She reached into the man's right shirt pocket and took out a small amount of marijuana wrapped in a clear plastic material like Saran wrap. Brenda then walked over and handed the packet to Officer Russ. The packet contained .9 grams of marijuana. That same evening, Officer Russ talked with one of the doormen named Hank (aka Hank the Tank) . The conversation took place at the back wall next to the juke box. Russ asked Hank if he knew where he could get some cocaine. Hank said he would check for him. Later that evening, Hank came back to Russ and said that everyone was out but that they would be getting some the next day. There were approximately 75 patrons in the lounge this night and there were approximately 7 employees on duty. On December 16, 1983, Officer Russ returned to the licensed premises. He was accompanied by Barbara Brown, a Callaway police officer. They entered the lounge at approximately 8:25 p.m. and took seats at the beck bar where Brenda was working. There were approximately 50 to 70 patrons in the lounge and 6 employees on duty. While seated at the bar, Officer Russ talked with Brenda, who at one point placed her purse on the bar and searched through several medicine vials just as she had done on a prior occasion. She then handed Officer Russ a yellow capsule similar $0 the ones he had received before. Russ did not pay Brenda any money for the capsule. The capsule was phentermine, a controlled substance under Chapter 893, Florida Statutes. This evening, Officer Russ also spoke with a doorman or bouncer on duty named Kevin. He asked Kevin if he could get him some marijuana. Kevin said Tallahassee was dry and that he had not had a joint in 3 days. Kevin, at the time of the formal hearing, was no longer employed by the Respondent. On his next visit to the licensed premises, Officer Russ was accompanied by Officer Smith. This visit occurred on December 21, 1983. There were between 50 and 75 patrons in the lounge and 5 employees on duty. Officer Russ spoke with one of the barmaids on duty about Kevin. Russ also asked her if she knew where he could get a joint. She said she did not, and suggested he talk to Cindy the bartender at the front bar. Brenda was not working this particular evening end Cindy was working at the front and back bar. Cindy was working at the back bar at that time and Russ spoke with her about the availability of drugs. Cindy told Officer Russ that she had a friend who would be returning with some Hawaiian marijuana. Larry Mellon overheard the conversation and told Cindy and Russ that the guy she was referring to wasn't coming back but was going to Chi-Chi's and then-home. Russ then began talking with Larry Mellon and Jim Bob Kitchen joined them. During the conversation, Jim Bob handed a marijuana cigarette to Officer Smith who then handed it to Officer Russ. The exchange occurred at approximately 10:00 p.m. The marijuana cigarette looked like a rolled marijuana cigarette and contained .2 grams of marijuana. This same evening, Officer Russ was introduced by Butch (whom he had met previously) to a woman named Melinda. Officer Smith had earlier been introduced to Melinda by Butch and was told that Melinda had some marijuana to sell. Officer Russ discussed buying some marijuana from Melinda, and Russ, Smith, and Melinda then went outside the lounge to the parking lot where Melinda sold 11 grams of marijuana to Officer Russ for $30. Officer Russ had never met Melinda before. On Wednesday, December 28, 1983, Officer Russ returned to the licensed premises. Brenda was working at the back bar and Russ took a seat at that bar. Russ asked Brenda if she had gotten the marijuana in Bristol. She said she had not but that she had gotten some more pills from her doctor in Quincy. She said she had marijuana and pills in her car and that she had taken some really good cocaine earlier in the evening. Russ asked Brenda if she had any of the cocaine left and she said she did. Brenda offered to sell Russ some of the cocaine for $75. This discussion took place at the bar with Larry Mellon and Jim Bob Kitchen present. While he was seated at the bar, Brenda got her purse and went to the doorway located next to the little short bar. She took out some pill bottles and in a few moments returned to Russ and gave him an envelope. As she handed him the envelope, Brenda stated she had put the other stuff in there too. The envelope was handed across the bar in open view. The envelope contained 15 capsules of phentermine and a triangular shaped packet of cocaine. Larry Mellon was standing nearby when the transfer occurred and asked Russ what they were doing. Russ said, "Nothing." Larry then stated that he knew what they were doing and that he had seen money change hands and had seen the envelope. After he received the envelope, Russ again asked Brenda about getting some marijuana. Brenda then left the bar through the front door and returned shortly through the same door with a brown bag in her hand. She handed the bag to Officer Russ who then put the bag in his beck pocket. The bag contained .2 grams of marijuana. On January 4, 1984, Officer Russ went to the licensed premises alone. When he arrived, there were very few patrons in the bar and Brenda was seated at the back bar with her feet up. The other bartender, Kathy, was also present. Officer Russ talked with Brenda and Kathy and jokingly asked Kathy if she would like to run a couple of lines of cocaine on the bar. Be also asked Brenda if she had been to Bristol yet. Brenda responded she had but not far enough to get the marijuana. Cindy came back from the front bar and spoke to Brenda, and Russ asked Cindy if her friend with the Hawaiian stuff had come back. Cindy responded, "No." Brenda brought up the subject of pills and placed her purse on the bar end looked at several medicine vials. She took some pills out of one of the vials and placed them in a napkin and handed the napkin to Russ. Russ told Kathy that Brenda had just given him some speed and did she want some. Brenda responded by saying, "Kathy wants coke." Russ then told Cindy that Brenda had given him some speed end did she want to go outside and have some. There were a total of four employees on duty in the lounge this night. There were no doormen working. There were approximately 20 patrons in the lounge. The ten white capsules which Officer Russ received from Brenda were methyephenidate a Schedule II controlled substance under Florida law. Officer Russ's lest visit to the licensed premises was on January 6, 1984. Russ entered the lounge alone and as he entered, he spoke -with Kathy, Cindy and another bartender named Pam. Russ went to the back bar where Brenda was working. He obtained some pills from Brenda. These pills were handed across the bar to Russ and were not in any type of container. Prior to this transfer, Russ had been talking to a patron named Bucky about drugs and pills. As she handed Russ the pills, Brenda stated that she did not have anything to put them in and that she was going to take one herself. Russ told her to give Bucky one and she did. Russ then gave Brenda $20 and told her that she could get the prescription refilled and share them with him. Russ left the licensed premises about 8:55 p.m. and as he was leaving, he spoke to the two doormen. He first asked them where Hank was and they said, "Osceola Hall." Russ then told them that he had just gotten some speed and that he was going outside to take some. The two doormen just laughed. Neither of them asked him to leave. Mr. Fred Dillman was observed in the licensed premises on only one of the 14 evenings Officer Russ was in the lounge. Sometime in October, Mr. Dillman injured his hand and lost a finger in an accident on his farm. Because of this injury he was in the lounge less than he normally would have been in November and December. Mr. Leonard Coffee is the manager of the licensed premises. He manages Fred's Back Door Lounge and another lounge owned by the Respondents. He has worked as manager for 11 or 12 years and has worked in the liquor business off and on since 1955. He divides his work hours between Fred's Back Door Lounge and the other lounge he manages. Mr. Coffee was never informed by any employee that Brenda was dealing drugs in the lounge. It was not established how much of the manager's time is spent in each lounge. Mr. Coffee testified that he instructed all employees to call the police then report to them if they saw anyone with drugs in the lounge. However, only one of three bartenders who testified recalled having been instructed to report drug problems to the manager. Several employees had been approached about drugs and did not report this information to the manager or the owner. One employee, Walter Humphries, had detected a strange odor in the lounge on prior occasions and hand thrown out people in the area of the odor. On one of his visits, Officer Russ also smelled what he considered to he marijuana smoke inside the lounge. There was no clear policy established or communicated to the employees as to what they were to do if they detected drugs being used or sold on the licensed premises. Mr. Coffee testified that he told the employees to call the police end inform him if there were any drugs detected on the licensed premises. However, the employees were not aware of this policy and did not follow the policy. There were no instructions given to employees regarding the detection of drugs and what they should look for in observing and supervising the licensed premises. There were no regular employee meetings where problems or potential problems in the lounge such as drugs were discussed. At the time each employee is hired, they are interviewed and are asked for prior work references. They are not required to fill out an application and are not asked whether they use drugs. No signs were observed in the lounge prohibiting the use or possession of drugs. Approximately two years ago, Respondent, Fred Dillman, 11, was informed by his attorney that the District Beverage Captain had received information that Brenda was selling drugs at the licensed premises. Mr. Dillman confronted Brenda with this information and she denied any involvement with drugs. Brenda, at that time, had been a good employee without any problems at work for seven years. He did not terminate Brenda but asked Mr. Coffee and another employee, Mr. Poulis, to keep an eye on Brenda. Mr. Poulis works in the liquor store from 6:00 p.m. to 10:00 p.m. and then works in the lounge until closing time at 2:00 a.m. Prior to his accident in October, Mr. Dillman was in the lounge more at night. Mr. Dillman's father and mother do not go-to the lounge at night. The patrons of the lounge are almost entirely college age. Mr. Dillman had received information that patrons were smoking marijuana on the back deck of the lounge and that the bikers were dealing drugs on the deck. Approximately one month ago, he instructed his bartenders to stop serving the bikers. Mr. Dillman was aware that drugs were likely to be present in a primarily college age crowd. Fred's Back Door Lounge has a reputation in the community as an establishment where drugs could be obtained. The Respondents do not approve of or condone use of drugs in the licensed premises or elsewhere. Neither the Respondents nor the manager, Mr. Coffee, were aware that Brenda was selling drugs on the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondents guilty of the violations as set forth above and suspending the Respondent's license for a period of 90 days and impose a civil penalty of $10,000. DONE and ORDERED this 23rd day of January, 1984, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1984. COPIES FURNISHED: Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James P. Judkins, Esquire P.O. Box 10368 Tallahassee, Florida 32302 Marion D. Lamb, Jr., Esquire P.O. Box 1778 Tallahassee, Florida 32302
The Issue Should Respondent's Alcoholic Beverage License Number 63-04089 be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law of the State of Florida. At all times material to this proceeding, Respondent, operated as a sole proprietorship known as Fort Meade Restaurant and Lounge, located at 122 Fourth Street Southwest, Fort Meade, Florida. Respondent held a series SRX4COP Alcoholic Beverage License Number 63-04089, issued by DABT, which authorized Respondent to sell beer, wine, and liquor for consumption on the licensed premises in connection with the restaurant operation of Fort Meade Restaurant and Lounge. Respondent's beverage license did not authorize Respondent to sell any form of alcoholic beverage for consumption off of the licensed premises. By letter dated February 10, 1997, the Fort Meade Police Department requested investigative assistance from DABT concerning an allegation that controlled substances were being sold at Respondent's licensed premises as well as another location unrelated to Respondent. As a result of the request for assistance from the Fort Meade Police Department, DABT instituted an investigation concerning the complaint. In addition to assigning the complaint to a Special Agent, Cleveland McKenzie, DABT requested assistance from the Polk County Sheriff's Department. At approximately 9:45 p.m. on April 18, 1997, Agent McKenzie, accompanied by Detective Bobby Neil, Polk County Sheriff's Office, entered Respondent's licensed premises, located at 122 Fourth Street Southwest, Fort Meade, Florida, in an undercover capacity. While in Respondent's licensed premises on April 18, 1997, Agent McKenzie asked the person tending bar (bartender) for "a beer for the road." In response to Agent McKenzie's request, the bartender placed an unopened 12-ounce bottle of Budweiser beer in a paper bag and handed the bag, with the beer inside, to McKenzie who then paid for the beer and left the licensed premises without attempting to conceal the beer on his person and without being stopped by any person providing services on the licensed premises. Agent McKenzie and Detective Neil left the licensed premises at approximately 11:00 p.m. Both Agent McKenzie and Detective Neil described the bartender as a stout, light-skinned, black male approximately 20 to 25 years of age. Neither Larry Fisher, manager of the licensed premises, nor Reginald Johnson, Respondent's adult son, fit this description. The person tending bar at the licensed premises on April 18, 1997, and April 26, 1997, was neither Larry Fisher nor Reginald Johnson, notwithstanding the testimony of Larry Fisher or Reginald Johnson to the contrary which I find lacks credibility. At approximately 10:30 p.m. on April 26, 1997, Agent McKenzie and Detective Neil entered Respondent's licensed premises located at 122 Fourth Street Southwest, Fort Meade, Florida, in an undercover capacity Before leaving the licensed premises on April 26, 1997, Agent McKenzie asked the bartender (the same individual tending bar while Agent McKenzie was in the licensed premises on April 18, 1997) for "a beer to go." The bartender placed an unopened 12-ounce bottle of Budweiser beer in a paper bag and handed the bag to Agent McKenzie. The bartender refused the offer of payment for the beer from Agent McKenzie's indicating that the beer was "on him." Agent McKenzie and Detective Neil left the licensed premises at approximately 11:55 p.m. on April 26, 1997. Upon leaving the licensed premises, Agent McKenzie carried the unopened bottle of beer in the paper bag without any attempt to conceal the beer on his person. Likewise, upon leaving the licensed premises, Detective Neil carried a half-full opened bottle of beer which he had purchased earlier from the bartender without any attempt to conceal the bottle on his person. In order to leave the licensed premises on April 26, 1997, Agent McKenzie and Detective Neil had to go pass two individuals who were providing services to Respondent's licensed premises. Neither of these individual, nor any other person providing services to Respondent's licensed premises on April 26, 1997, prevented Agent McKenzie or Detective Neil from leaving the licensed premises with the beer. There was no evidence presented By DABT to show that while Agent McKenzie and Detective Neil were in Respondent's licensed premises on April 18, 1997, and April 26, 1997, that the bartender sold or gave any other customer an alcoholic beverage packaged to go or that any other customer left the licensed premises with an alcoholic beverage. Respondent was not present in his licensed premises during the time that Agent McKenzie and Detective Neil were there on April 18, 1997, and April 26, 1997. There is insufficient evidence to show that the bartender's action on April 18, 1997, and April 26, 1997, was the result of Respondent's negligence, intentional wrongdoing, lack of diligence, lack of training for the employees, or lack of notice to customers that any alcoholic beverage purchased had to be consumed on the licensed premises. After the visits to the licensed premises on April 18, 1997, and April 26, 1997, Agent McKenzie concluded that there was no basis to the alleged complaint that controlled substances were being sold on the licensed premises. The designation "SRX" identifies a beverage license issued to business which is to be operated as restaurant. As a result of its investigation of Respondent's licensed premises on April 18, 1997, and April 26, 1997, DABT, as is its normal practice, examined the Respondent's licensed premises for continuing requirements applicable to special licenses such as a "SRX" license. Respondent is an experienced business person with 15 years experience in operating licensee premises. Respondent knew at the time of obtaining the license at issue in May 1995 that he had an obligation to maintain records sufficient to demonstrate that Respondent met the 51 percent requirement in each bi-monthly period. Respondent's Profit and Loss Statement for the months of January 1997, February 1997, March 1997, and April 1997, listed the total amount of revenue derived from the sale of food and non-alcoholic beverages and alcoholic beverages. However, this figure for alcoholic beverages was not supported by any daily records of sales. Respondent maintained no records as to the daily sales of alcoholic beverages on the licensed premises. Although Respondent presented guest checks for the daily sales of food and non-alcoholic beverages, the total of these checks for each month in question did not support the Respondent's Profit and Loss Statement for each corresponding month. Based on the Respondent's Profit and Loss Statement and other records furnished by Respondent for the months of January, February, March, and April 1997, the percentage of total gross revenue (sales of food, non-alcoholic beverages, and alcoholic beverages) derived from the sale of food and non-alcoholic beverages for the months of January 1997, February 1997, March 1997, and April 1997 was approximately 45 percent, 46 percent, 46 percent, and 44 percent, respectively.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of the penalty guidelines in Rule 61A-2.022, Florida Administrative Code, it is recommended that the Department enter a final order revoking Respondent's Alcoholic Beverage License, Number SRX4COP 63-04089 DONE AND ENTERED this 2nd day of June 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages And Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32299-0792 Madeline McGuckin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Kenneth Glover, Esquire 505 Martin Luther King, Jr. Avenue Lakeland, Florida 33802
The Issue The issues in these cases are whether Respondent, Club Manhattan Bar and Grill, LLC, d/b/a Club Manhattan Bar and Grill (Respondent), committed the acts alleged in the administrative complaints dated September 13, 2010, and December 1, 2010, and, if so, what disciplinary action, if any, should be taken against Respondent.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating persons holding alcoholic beverage licenses. § 561.02, Fla. Stat. Respondent is licensed under the Florida beverage law by the Department. Respondent holds a 4COP/SRX special restaurant license issued by the Department with Alcoholic Beverage License No. 68-04347. Ms. Stokes is the licensee of record for Respondent. Consequently, Respondent is subject to the Department's regulatory jurisdiction. Respondent's series 4COP/SRX is a special restaurant license that permits it to sell beer, wine, and liquor for consumption on the licensed premises. Additionally, the licensee must satisfy seating and record-keeping requirements and must comply with 51 percent of its gross sales being food and non- alcoholic beverages. See § 561.20(2)(a)4., Fla. Stat. Respondent's restaurant is located in Sarasota County, Florida, and, pursuant to the 4COP/SRX license, must have seating and capability to serve 150 customers at any one time. On August 5, 2010, Special Agent Flynn conducted an inspection of Respondent's business premises. He conducted the inspection based on complaints made to the Department that Respondent was operating as an after-hours bar, rather than a restaurant. At this initial inspection, which occurred at 2:30 p.m. on August 5, 2010, Special Agent Flynn found the restaurant did not have any customers or menus. Further, he noticed that the premises had seating for only 92 people and a large dance floor. Further, he observed that the walls had signs advertising drink specials and late-night parties. Special Agent Flynn met Ms. Stokes, Respondent's manager and holder of the license, and informed her that the beverage license required that Respondent be able to serve 150 customers at one time. Also, Special Agent Flynn requested the required business records concerning the purchase of alcoholic beverage invoices from the distributors for a 60-day proceeding period. Ms. Stokes did not have the requested records on the premises. On August 19, 2010, Special Agent Flynn sent Ms. Stokes a written request, requesting alcoholic purchase invoices for a 60-day period before August 19, 2010. The request allowed Ms. Stokes 14 days to compile the records and to provide the records to the Department. The record here showed by clear and convincing evidence that Respondent did not produce records for the audit period. On September 8, 2010, at approximately 3:00 p.m., Special Agent Flynn returned to Respondent's premises. Again, he found that Respondent did not have the required seating number and ability to serve 150 customers at one time. Special Agent Flynn offered credible testimony that, during the September 8, 2010, inspection, he found Respondent had only 106 available seats. Further, consistent with his inspection on August 5, 2010, Special Agent Flynn observed facts showing that Respondent was a late-night bar, as opposed to a restaurant. The evidence showed that on September 8, 2010, Special Agent Flynn observed that Respondent did not have any customers, menus, and very little food in its small kitchen. Special Agent Flynn, however, did observe that Respondent continued to have its large dance floor, disc jockey booth, advertised drink specials, and posters advertising late-night parties. Clearly, Respondent was being operated as a bar, rather than a restaurant as required by its license. At the September 8, 2010, inspection, Special Agent Flynn again requested Respondent's business records that he had previously requested for the 60-day time period before August 19, 2010. Ms. Stokes provided a few invoices for purchases of food and non-alcoholic beverages. These invoices were dated after the August 19, 2010, date that Special Agent Flynn had requested and did not cover the requested 60 days prior to the August 19, 2010, request. These records included food and beverage purchases by Respondent from retailers, but did not contain any records concerning the points of sale at the restaurant. Ms. Nadeau, an auditor for the Department, offered credible testimony concerning the Department's request for business records from Respondent for the audit period of April 1, 2010, through July 31, 2010. On August 27, 2010, Ms. Nadeau set up an audit request for the period of April 1, 2010, through July 31, 2010, based on information provided by Special Agent Flynn. The Department provided Ms. Stokes with an audit engagement letter that requested business records. Ms. Nadeau testified that on September 10, 2010, she was contacted by Ms. Stokes. Ms. Stokes informed Ms. Nadeau that Ms. Stokes had become the owner of the restaurant in June 2010 and that she did not have the required records. Ms. Nadeau informed Ms. Stokes to provide all the records requested in the audit engagement letter that Ms. Stokes had and to try to obtain the prior records from the previous managing member of Respondent. On September 22, 2010, Ms. Stokes mailed to the Department records she claimed met the audit period. The records consisted of guest checks for July and August 2010, which only showed food purchases and no alcoholic beverage purchases. Further, Ms. Nadeau found that the records were not reliable, because the records contained numerous personal items not related to the restaurant, such as baby wipes, cotton swabs, and boxer shorts. Consequently, the record clearly and convincingly shows that Respondent failed to provide the required business records for the audit period of April 1, 2010, through July 31, 2010. Next, based on Respondent's failure to provide any reliable records, the Department was unable to conduct an audit of the business. Records provided by Respondent indicated that the only sales that occurred on the premises were for food. However, the testimony showed that Respondent's business included the sale of alcohol and marketed the sale of alcoholic beverages for late-night parties. Mr. Torres, the senior auditor for the Department, credibly testified that he conducted an independent review of Ms. Nadeau's initial audit findings. Mr. Torres, who has been employed with the Department for 27 years, reviewed the records provided by Respondent. He credibly testified that Respondent's guest checks were very questionable because they showed all food sales, but no alcohol, which was not consistent with Special Agent Flynn's observations. The evidence further showed that Ms. Stokes became the managing member of Respondent in June 2010. Ms. Stokes provided the Department with a change of corporate officers and named herself as registered agent, rather than apply for a new license. This distinction would later become important because, as explained by Ms. Nadeau, in the Department's eyes, there is a continuation of ownership. Under a continuation of ownership, Ms. Stokes was required to have business records for the time period before she became the managing member of Respondent. Ms. Stokes credibly testified that she did not have any records before June 20, 2010; thus, Respondent was unable to provide records for the audit period. Ms. Stokes candidly admitted that her restaurant had been struggling financially, which is why she had worked to catering special events to draw foot traffic.
Recommendation Based on the foregoing 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 revoking Respondent's alcoholic beverage license and finding that Respondent violated: 1. Section 561.20(2)(a)4., within section 561.29(1)(a), on September 8, 2010, by failing to provide the required service area, seating, and equipment to serve 150 persons full-course meals at tables at one time as required by its license; 2. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), the audit period of April 1, 2010, through July 31, 2010, by not providing the requested business records; and 3. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), on September 8, 2010, by not providing the requested business records. It is further RECOMMENDED that the final order find that the Department did not prove by clear and convincing evidence that Respondent violated section 561.20(2)(a)4., within section 561.29(1)(a). DONE AND ENTERED this 23rd day of September, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 23rd day of September, 2011.
The Issue The issue presented here concerns the entitlement of the Petitioner to be granted a new Series 2-COP beverage license from the Respondent.
Findings Of Fact The Petitioner, Dorothy Risby, filed an application to be issued a new Series 2-COP alcoholic beverage license. The application was filed on January 28, 1980, and if the license were issued, it would allow for the sale of beer and wine to be consumed at the Petitioner's premises known as the V I P Night Club, located at 922 East Brownlee Street, Starke, Florida. After the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco, had received and reviewed the application, it was denied. The basis of the denial was, quoting from the license application denial, "undisclosed interest" and reference was made to Section 561.17, Florida Statutes, as the authority for such denial. Specifically, the Respondent is persuaded that Albert Parrish has an "undisclosed interest" in the prospective licensed premises and that in view of this interest the Petitioner is not entitled to receive the beverage license. Albert Parrish was the former holder of an alcoholic beverage license issued by the Respondent, and the licensed premises to which the license pertained was the same premises as contemplated by the present Petitioner. Parrish did business at that location under the name Red Honey until his license was revoked on December 31, 1979. The current Petitioner has known Albert Parrish for a period of ten to twelve years and in the course of that time, Parrish has helped support the children of the Petitioner who presently live at home with her. This support spoken to is financial support. The Petitioner and Albert Parrish have also lived together in that period of time and as recently as February, 1980. The latter statement concerning the living arrangements between the Petitioner and Parrish was ascertained when Beverage Officer Robert W. Cunningham went to the licensed premises in making a pre-licensure inspection in February, 1980, and encountered Albert Parrish on the proposed licensed premises. Parrish indicated that he was just at the licensed premises sleeping following a break-in that had occurred at that location. At the same time he indicated that he was living at Apartment 51 on Brownlee Street, Starke, Florida, which is the residence address given by the Petitioner in her application for licensure. This also was the same residence address that Albert Parrish had put on his beverage license application when he had applied for the beverage license issued to him in the past. In the course of the meeting referred to above, Parrish stated that the utilities for the licensed premises were being paid for by him and that the phone in the licensed premises was primarily for the benefit of the ABC Junk Yard, a business operated by Parrish, which was located at that time behind the prospective licensed premises. The phone located at the licensed premises also rang at the Apartment 51 when calls were made in. At the time of Cunningham's conversation with Parrish, the rent for the licensed premises was being paid month to month and was paid at times by the Petitioner and at other times by Parrish. The most recent rent of August, 1980, was paid by the Petitioner. At the time of the hearing, the utilities for the licensed premises still remained in the name of Albert Parrish, although payment for those utilities was being made by the Petitioner. The telephone remained in the name of Albert Parrish because in the words of the Petitioner, it cost $200.00 to change over the phone from Parrish's name to the Petitioner's name and the Petitioner could not afford to make that change. In the interim, the Petitioner intends to pay for the telephone until such time as she cannot afford to pay and the service charges and at that time she would expect the telephone to be removed for nonpayment. At the time of the hearing, Albert Parrish was no longer in the junk yard business at the licensed premises and was not living with the Petitioner at the Apartment 51 due to the fact that the welfare officials had instructed the Petitioner that if Parrish lived there, the Petitioner could not receive help for her children. At present, the Petitioner does not know the exact residence address of Parrish nor of his future intentions regarding their relationship in which she had been his "girlfriend" in the past. Parrish still gives her $10.00 or $15.00 when he can afford it and when she asks him for the money. The Petitioner presently sells sandwiches and soft drinks at the licensed premises and has an occupational license from Bradford County, Florida, which allows her to do this. This license is in her sole name. Albert Parrish is not involved in the daily operation of this business. It is the intention of the Petitioner to expand the base of her operations to include the sales of alcoholic beverages. In taking over the licensed premises, she intends to continue to pay the month-to-month rent due at the licensed premises. In pursuit of the expansion of her business, Parrish gave the Petitioner certain tables and chairs in the licensed premises to use for her purposes. Parrish was not paid any amount of money for his good will or inventory and no inventory remained to be used by the current Petitioner. The Petitioner receives other income from the licensed premises in the form of a concessions for a "piccolo and pool tables". The average amount of income from those concessions being $65.00 for the piccolo and $80.00 for the pool table, on a weekly basis, of which one-half of the money is paid to the concessionaire of those items in lieu of rentals. Presently, the apartment rent of the Petitioner is paid primarily from funds received from the business, from money provided by the Petitioner's elder sons, and from welfare payments to the Petitioner.
Recommendation It is RECOMMENDED that the Petitioner, Dorothy Risby's application for a new Series 2-COP alcoholic beverage license be DENIED. DONE AND ENTERED this 4th day of September, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1980. COPIES FURNISHED: Dorothy Risby 922 East Brownlee Street Starke, Florida 32091 William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
