The Issue Whether or not on or about October 31, 1975, the Respondents, Bossie Mae and Willie Mae Browdy, licensed under the beverage laws as a package store, and/or their agent, servant or employee, to wit: Bossie Mae Browdy did allow or permit the consumption of alcoholic beverages on their licensed premises, contrary to Rule 7A-3.05, Florida Administrative Code. Whether or not on or about November 1, 1975, the Respondents, Bossie Mae and Willie Mae Browdy, licensed under the beverage laws as Browdy's Mini Market with a 2-APS license to wit: Bossie Mae Browdy did allow gambling (card) on the licensed premises, contrary to Section 849.08, Florida Statutes and in violation of Section 561.29, Florida Statutes.
Findings Of Fact At present, and on October 31, 1975 and November 1, 1975, the Respondents, Bossie Mae and Willie Mae Browdy are and were the holders of a beverage license with the State of Florida, Division of Beverage number 69-299, 2-APS. On October 31, 1975, Eugene Fogel, a Division of Beverage enforcement officer entered the premises licensed by the State of Florida, Division of Beverage, which was operated by the Respondents at Avenue B on Chuluota Road, Oviedo, Florida. While in the store he observed an unknown black female consuming a beverage which was marked Millers High-Life. This consumption was taking place in the presence of the Respondent, Bossie Mae Browdy, and in the course of the consumption a conversation was taking place between the unknown black female and Bossie Mae Browdy. The bottle which Officer Fogel observed was marked with identifying information which the officer based upon his experience, felt indicated that it contained an alcoholic beverage. On November 1, 1975, officer Fogel returned to the licensed premises of the Respondents and entered into a card game in a porch like area which is immediately at the front of the store and connected to the store. This card game was between Fogel and several black males who were participating in a card game when he approached. The game took place over 45 minutes and money was exchanged at 25 cents a game for the winner, for a total amount of approximately $2.00. During the course of the game, Bossie Mae Browdy came to the door and looked out at the card game being played.
Recommendation It is recommended that the Respondents, Bossie Mae and Willie Mae Browdy, be fined in the amount of $100 for the offense as established through this administrative complaint. DONE and ENTERED this 24th day of November, 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 Curtis, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Carl Thompson, Esquire 25 South Magnolia Avenue Orlando, Florida 32801
Findings Of Fact At all times relevant to this proceeding, Respondent held alcoholic beverage license No. 26-1715. The licensed premises is located at 621 Davis Street, Jacksonville, Florida. Petitioner's undercover investigator and confidential informant (CI) entered the licensed premises on March 9, 1982. Thereafter, the CI purchased cannabis from a patron of the licensed facility (Count 3) Petitioner's investigator returned to the licensed premises with the CI on March 10, 1982, on which date both the CI and the investigator purchased cannabis from a patron. On this occasion the patron was identified as a seller by the bartender when she was asked who would sell cannabis. These transactions were carried out openly (Count 4) Petitioner's investigator was again in the licensed premises on March 11, 1982, and observed the open sale and use of cannabis. He identified the substance sold and smoked by its appearance and smell (Count 5) . In those instances where Petitioner's investigator and CI made purchases, the substances were tested by the Florida Department of Law Enforcement Crime Lab, and confirmed to be cannabis. See Petitioner's Exhibit One. On March 24, 1982, Petitioner's investigator visited the licensed premises where he again observed the open sale and use of cannabis by patrons as well as by an employee (barmaid) of Respondent. The investigator also purchased cannabis from patron during this visit (Count 8). On March 25, 1982, Petitioner's investigator was on the licensed premises and observed the open sale and use of cannabis. He made purchases of this substance from a patron around 2:00 pm. and again about 11:30 p.m. (Count 9). Petitioner's investigator was in the licensed premises on March 26, 1982. He again purchased cannabis from a patron (Count 10). Respondent was not observed on the premises during any of the above periods. It was not, therefore, demonstrated that he had actual knowledge of the illegal activity.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's alcoholic beverage license for a period of 45 days. DONE and ENTERED this 7th day of December, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1982.
The Issue Whether "[o]n or about January 16, 2009, Respondent [the holder of an SR license] failed to maintain a restaurant . . . contrary to and in violation of [s]ection 561.20(2), Florida Statutes (1953), within [s]ection 561.20(5), Florida Statutes (2008), within [s]ection 561.29(1)(a), Florida Statutes (2008),"2 as alleged in the Fourth Amended Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all material times, the holder of alcoholic beverage license number 23-02630, Series 4COP/SR (Subject License), which is a "Special Restaurant" or "SR" license issued by Petitioner. The location of the licensed premises is 17190 Collins Avenue, Sunny Isles Beach, Florida, where Respondent operates Epicure Gourmet Market and Café (Epicure) in a structure having 34,000 square feet of interior space, 10,000 to 12,000 square feet of which is open to the consuming public. The Rascal House, an eating establishment specializing in comfort food, formerly occupied this location. The Rascal House opened in 1954 and was operated under the Subject License from December 30 of that year until March 30, 2008, when it was shuttered. For the final twelve years of its existence, the Rascal House was owned and operated by Jerry's Famous Deli, Inc., Respondent's parent corporation. Respondent acquired the Rascal House property and the Subject License from Jerry's Famous Deli in 2008. After spending $7.5 million on renovations to the property,3 Respondent reopened the venue as Epicure on October 7, 2008, and has done business under that name at the former Rascal House location since. Petitioner approved the transfer of the Subject License to Respondent on October 27, 2008, following an inspection of the premises of Epicure by one of Petitioner's Special Agents, Bradley Frank, who found that all statutory requirements for "SR" licensure were met. In the summer of 2008, prior to the opening of Epicure, Respondent, through its Chief Financial Officer, Christina Sperling, submitted a Request for Initial Inspection and Food Permit Application with the Florida Department of Agriculture and Consumer Services, Division of Food Safety (DACS), in which it described Epicure as a "[f]ood market with indoor/outdoor seating area; but not a service restaurant." At the time of the filing of the Food Permit Application, Respondent had no intention of using waiters or waitresses to serve Epicure's patrons, although it did intend for these patrons to be able to purchase food and beverage items for consumption on the premises. Before Epicure opened, Respondent was granted a DACS Annual Food Permit, "Supermarket"-type, for the establishment, a permit it continues to hold today. On February 11, 2009, and again on July 28, 2009, Respondent applied to the Department of Business and Professional Regulation, Division of Hotels and Restaurants (H&R) for a "public food service establishment"4 license for Epicure. Both applications were denied by H&R because Epicure was licensed (properly so, in the opinion of H&R) by DACS. The DACS permit is not the only license Respondent has for Epicure. It also has a retail license, a food market license, and a restaurant-outside dining license, all issued by the City of Sunny Isles Beach. Respondent has held these City of Sunny Isles Beach-issued licenses since 2008. On January 16, 2009, the date of the violation alleged in the Fourth Amended Administrative Complaint, Epicure had the necessary equipment and supplies (including those in its 4,000 to 5,000 square foot kitchen where food was prepared) to provide, and it did provide, patrons full course meals (including ready to eat appetizer items, ready to eat salad items, ready to eat entree items, ready to eat vegetable items, ready to eat dessert items, ready to eat fruit items, hot and cold beverages (non-alcoholic and alcoholic), and bread) for on- premises consumption at indoor and outdoor tables5 (Eating Tables) having a total seating capacity in excess of 200 and occupying more than 4,000 square feet of space.6 There were no waiters or waitresses, at that time, to take orders from, and to serve food and beverages to, patrons sitting at the Eating Tables.7 The patrons themselves brought to their Eating Tables the food and beverages they consumed there--food and beverages they obtained from manned counters (in the hot food, raw meat/fresh seafood,8 deli, bakery, and bar areas); from the fresh produce area; and from the cases, shelves, and tables where packaged food and drink items were displayed for sale. Epicure employees were stationed in the areas where the Eating Tables were located to assist patrons who wanted tableware, a glass of ice water, a packaged item (such as soup) to be opened or warmed, or their table to be cleaned. Not all of the items sold at Epicure on January 16, 2009, were consumed on the premises. True to its name, Epicure had not only a bona fide "café" operation, it also operated as a "market" where patrons shopped for "gourmet" food and other items for off-premises consumption and use. Among the food and beverage items for sale were raw meat and fresh seafood; dairy products; ready to eat deli meats and cheeses, including those packaged by the manufacturer; packaged grains; packaged stocks, including vegetable, beef, seafood, and chicken stock; condiments, including jams, jellies, and caviar; sauces; spices; eggs; chips, popcorn, and nuts; packaged crackers and cookies; ingredients (other than meat and seafood) for salads, dips, and dressings; cooked and other prepared foods ready to eat; baked bread and other bakery items; candy; fruit and other fresh produce; bottles of wine, liquor, and beer, as well as non- alcoholic beverages, including water; and packaged tea. Among the non-food items for sale were flowers; glassware; candles; napkins, paper and plastic plates and cups, and eating and serving utensils; paper towels; toilet paper; toilet bowel cleaner; wine and liquor opening devices and equipment; publications relating to alcoholic beverage products; cookbooks; and personal care and over-the-counter health care items. Shopping carts were available for patrons to use in the establishment to transport items selected for purchase. These items were paid for at the same cash registers (at the front of the establishment) where food and beverages consumed on the premises were paid for. There was considerable overlap between Epicure's "café" and "market" operations in terms of space used and items sold. Both the "café" and the "market" were fundamental and substantial components of Epicure's business, and they worked together synergistically. The record evidence does not clearly and convincingly reveal that Epicure's "café" operation was merely incidental or subordinate to its "market" operation, or that its "café" was in any way operated as a subterfuge.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, issue a final order dismissing the Fourth Amended Administrative Complaint in its entirety. DONE AND ENTERED this 24th day of October, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2011.
The Issue The issue presented is whether Respondent failed to maintain separate records of purchases and gross sales of all alcoholic and non-alcoholic beverages and food in violation of Section 561.20, Florida Statutes, and Florida Administrative Code Rule 61A-3.0141, and if so, what penalty, if any, is appropriate. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect of the date of this Recommended Order).
Findings Of Fact Respondent holds license number 69-02639, series 4COP SRX. An SRX license authorizes Respondent to sell alcoholic beverages on the premises of Jon's Bar & Grill, located at 2485 N. Highway 17-92, Lake Monroe, Florida ("the licensed premises"). Persons issued "SRX" licenses must meet certain statutory requirements to ensure that they are operating bona fide restaurants. Among other requirements, Respondent must maintain separate records of all purchases and gross sales of all alcoholic and non-alcoholic beverages and food. Respondent's license application specifically informed Respondent that he must meet the specific requirements of this type of license. On March 17, 1997, Petitioner's Special Agent Richard Hurlburt met with Respondent for the purpose of conducting an SRX inspection to determine Respondent's compliance with SRX license requirements. An SRX inspection includes an audit of the licensee's records to determine the percentage of gross revenue derived from the sale of food and non-alcoholic beverages. Respondent was unable to produce the records he is statutorily required to maintain. Agent Hurlburt issued a notice to produce records relating to the operation of the restaurant. On August 12, 1997, Petitioner issued a notice of administrative complaint against Respondent for failure to maintain separate records of all purchases and gross sales for non-alcoholic and alcoholic beverages and food in violation of Section 561.20. Respondent has not produced the records he is statutorily required to maintain.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a $1,000 civil penalty against Respondent and revoking alcoholic beverage license no. 69-02639, series 4COP SRX, without prejudice to obtain any other type license, but with prejudice to obtain another SRX special license for 5 years from date of the Final Order. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon county, Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 George Lewis, Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe street Tallahassee, Florida 32399 Jon Gustafson, pro se 956 Lake Ashby Road New Smyrna, Florida 32069
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, revoke alcoholic beverage license number 23-1341, Series 2-COP, held by Maritza Garcia, d/b/a Maritza's Pub. RECOMMENDED this 23rd day of May, 1985 in Tallahassee, Florida. Hearings 1550 Hearings J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 FILED with the Clerk of the Division of Administrative this 23rd day of May, 1985.
The Issue The issues for disposition are whether Respondent sold alcoholic beverages to an underage person in violation of section 562.11(1)(a), Florida Statutes, as alleged in the Petitioner’s Administrative Action dated February 20, 1996, and if so, what penalty or discipline is appropriate.
Findings Of Fact Respondent is the holder of alcoholic beverage license no. 69-01472, Series 2APS, for a licensed premises doing business as Superette #3, located at 199 North Country Club Road, Lake Mary, Seminole County, Florida. On February 8, 1996 and at all relevant times, Salim Dhanani was the sole corporate officer and sole shareholder of Superette #3, Inc., the holder of the above-referenced alcoholic beverage license. The “City/County Investigative Bureau” (CCIB) is a task force of officers from the Seminole County Sheriff’s Department and surrounding cities assigned to investigate crimes relating to drugs, alcohol and vice, including the sale of alcohol to minors. CCIB acts on complaints and works with the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT). Darrell Brewer, born March 18, 1976, was a police explorer who was asked to help the CCIB investigate sales of alcohol to underage persons. On February 8, 1996, he was 19 years old and was working with Officers Johnson and Hartner. On February 8, 1996, in the evening around 8:00 p.m., Brewer and a CCIB agent entered the licensed premises, Superette #3. Brewer wore jeans and a tee-shirt and carried cash and a valid ID, which he was instructed to present if requested. Brewer picked out a 6-pack of Miller Genuine Draft beer and took it to the counter, where he purchased it without being asked for identification or any question regarding his age. Brewer turned over the beer to Officer Johnson, who returned to the store and arrested the clerk who had made the sale, Salim Dhanani. In May 1996, Dhanani went to court and pled no contest to the criminal charge of sale of alcohol to an underage person. He paid a fine. In his eleven years in the United States, this is the only violation by Dhanani. He worked in several places before taking over Superette #3 in November 1993, and he never had problems with DABT. After the Brewer incident, Dhanani hired a private consultant to train his wife and him and their one employee. They learned to “ID” everyone, including regular customers; they posted signs and notices informing customers of their “responsible vendor policy” and their intent to prosecute minors attempting to purchase alcohol. Dhanani admits that he sold beer to Brewer without asking for identification and without questioning his age. Brewer is a large, mature youth who, at the time of hearing, looked to be in his mid-20’s. To Dhanani, at the time of sale, Brewer appeared to be “28 or so”. Under the responsible vendor program any customer who appears to be under the age of 30 must be required to present proper identification. Through Capt. Ewing, DABT presented unrebutted evidence that the premises in Lake Mary has been vacated by the licensee, Superette #3, Inc., and a new license was issued to the landlord of the premises. Cancellation of the Superette #3 license is in abeyance pending this proceeding.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Division of Alcohol Beverages and Tobacco enter its final order finding that Respondent committed the violation alleged in the Administrative Action, assessing a fine of $1000.00, and suspending the license for 7 days, or until Respondent has found an approved new location. DONE and ENTERED this 17th day of April 1997 in Tallahassee, Leon County, Florida. MARY CLARK 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 17th day of April 1997. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Steven G. Horneffer, Esquire Suite 109 101 Sunnytown Road Casselberry, Florida 32707 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At some time prior to March 1, 1963, Randall R. Aleno, a former deputy sheriff with the Volusia County, Florida, Sheriff's Department; his brother, Mick Aleno; his father, Charles Aleno; and his wife, Patty Aleno, formed Aleno's Enterprises, Inc., a Florida corporation, with Randall Aleno owning more than 50 percent of the corporate stock. Randall Aleno is the corporate president; Mick Aleno,the vice president; Charles Aleno, the treasurer; and Patty Aleno, the secretary. Having been a long-time resident of Volusia County, Randall Aleno saw a need for and developed a concept for a form of mobile concession stands to operate on the St. Johns River in the general area of Volusia County and the contiguous counties north and south of it. Before taking any definitive steps toward implementing this idea, Randall Aleno, on January 10, 1983, wrote letters both to the Commanding Officer of Port Operations for the U.S. Coast Guard in Jacksonville, Florida, and a representative of the Volusia County Health Department outlining in general terms the nature of his plan and seeking approval of those agencies for the project. Apparently, neither agency interposed any objection. He also contacted the local office of the Petitioner, Division of Alcoholic Beverages and Tobacco, where he spoke with Agents Dunbar, Blanton, and Clark, outlining his proposal. On at least one occasion, Mr. Aleno told Division of Alcoholic Beverages and Tobacco representative Clark, while at the counter in the Division of Alcoholic Beverages and Tobacco Daytona Beach office, that he intended to make bulk sales of beer from boats tied to buoys in the St. Johns River at the time of sales, but which would, when not in operation, be moored at the Tropical Marina in DeLand, Florida. In Dir. Clark's opinion, this type of proposed operation was not covered or provided for in the statutes or in the rules of the Division and he felt the applications for licenses for these operations should he denied. According to Mr. Clark, when he advised Mr. Aleno of this on several occasions, Mr. Aleno still wanted to try and submitted the application. At some time during this period, Mr. Aleno, who had been with the sheriff's office for 14 years, retired from that employment, 1/ purchased three houseboats (one 39-foot boat and two 26-foot boats) which he thoroughly rehabilitated to be capable of storage and the sale of sandwiches and package sales of soft drinks and beer. The sandwiches to be sold were to he pre- wrapped, the beverages in cans, coffee in styrofoam cups with lids, and all condiments would be in sealed packages. No food or drink was to be opened or consumed on board the boats, floating concession stands. When the boats were completed, because he had been told by Division of Alcoholic Beverages and Tobacco agents at the Daytona Beach office that a license would not be issued to a moving establishment, he secured a boat slip for each boat at the Tropical Marina. Mr. Aleno picked up the applications for beverage licenses from the Daytona Beach office. Me also wrote to a beverage supervisor at the Jacksonville office in an effort to prepare the way for his applications. Mr. Aleno was told, at some point in the procedure, that he would need to submit copies of the plans, the boat layouts and details of the operation. All of these, in addition to the letters from the Coast Guard and the county health department, were submitted for consideration with the applications. Mr. Aleno attempted to describe his proposal to each official with whom he came into contact. The local Division of Alcoholic Beverages Supervisor, Lt. Powell, and Mr. Clark admit that Mr. Aleno told them what he planned to do with his operation and how it would work. Lt. Powell reviewed the complete application and discussed it with Mr. Clark. He, Powell, was aware that the sales of unopened packages of beer would be made out on the river and not at the Tropical Marina before the application was forwarded to Tallahassee for action, but there was nothing written in the application to indicate the sales would be made up and down the river. The applications showed the location of the premises as Tropical Marina, Slips 41, 42 and 43. The applications were forwarded to Tallahassee in the normal course of business apparently without recommendation one way or the other by the local office. The licenses were issued on April 1, 1983, showing their location as Tropical Marina, Slips 41, 42 and 43, respectively, Lakeview Road, DeLand, Florida. The 1-APS licenses were issued to Aleno's Enterprises, Inc. trading as Randv's Subs #41, 42 and 43. (License Numbers 74-1565, 74-1566, and 74-1567) Respondent does not operate its boats as a steamship line. It does not carry people, other than employees, on the boats for pay or gratis. None of the boats go more than 100 miles in either direction from the point of mooring. Respondent has not been selling beverages for consumption on the premises, but has been making package sales only of beer off the boats. Barry Schoenfeld, Chief of Licensing Records for Respondent in Tallahassee, reviewed these applications and the license files sometime during the summer of 19-83 after the licenses were issued. His review of the files led him to conclude that the Respondent's operation does not qualify for a 1-APE license because the boats are not permanently moored at their docks. Florida Beverage Laws require, generally, a fixed permanent structure. There are some exceptions for movable vehicles such as steamships, trains, and airplanes and also for pleasure boats which go more than 100 miles per outing. He believes Respondent's boats would qualify for this latter license which, however, is a COP license, not an APS license. He has thoroughly examined the Respondent's applications; and the way the total file reads, it gives him the impression the boats would be moored at the dock in a fixed permanent location. This is why the licenses were issued. Since an obvious mistake was made, and since Mr. Schoenfeld did not know of any provision in the Florida Beverage Law which covers an operation such as that of Respondent, in the summer of 1983, he called Respondent, speaking with Mrs. Patty Aleno, and advised her the operation would have to cease. Upon advice of counsel, Respondent did not stop the operation at that time.
Recommendation That Respondent's licenses be revoked without prejudice so as to permit Respondent or its officers to, in the future, apply for the issuance of a beverage license, if otherwise qualified.
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Mehreen Enterprises, Inc., held license number 23-21339, Series 2APS, authorizing it to sell alcoholic beverages on the premises of a business known as Super Stop Food Store #2, located at 9260 Hammocks Boulevard, Miami, Dade County, Florida (hereinafter "the licensed premises"). Syed Abdul Qadir (Qadir) was, and is, a shareholder of the Respondent corporation, and the manager of the licenses premises.1 On March 1, 1997, at or about 8:00 p.m., Richard Stangl (Richard), date of birth December 7, 1976, and 20 years of age at the time, entered the licensed premises, retrieved a 32 ounce bottle of Red Dog beer from a vertical cooler, and proceeded to the counter where he paid Qadir for the beer and left the premises. At the time, Qadir did not request to see any identification as proof of legal age, nor did he ask Richard his age. As Richard drove away from the store he was intercepted by the police, who were engaged in an investigation of the premises. Confirming Richard's age and the possession of an alcoholic beverage,2 Richard was returned to the licensed premises where he and Qadir were placed under arrest.3 Respondent does not dispute that the foregoing events occurred. Rather, it contends that it took reasonable precautions to avoid serving an underaged person and should not, therefore, be penalized for the subject sale. Given the proof, Respondent's contention has merit. While Richard was less than 21 years of age at the time, the proof demonstrated that his appearance was such that an ordinary prudent person would believe he was of legal age to purchase alcoholic beverages.4 The proof further demonstrates that Richard frequented the licensed premises on a regular basis over a three month period, and that he routinely purchased (approximately 30 times) alcoholic beverages during that period. Initially Qadir inquired as to his age, which Richard stated to be 21, and requested identification, which Richard presented in the form of a driver's license consistent with that age. Qadir continued to request identification for a time but, as Richard appeared regularly at the store, and began to complain, he ceased requesting identification. Given the repeated assurances by word and identification card that Qadir had received regarding Richard's apparent age, Qadir's failure to continue to request identification was not unreasonable.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Action. DONE AND ENTERED this 18th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1997.
Recommendation Based upon the foregoing Finding Of Facts and Conclusions Of Law, it is recommended that petitioner Department of Business Regulation, Division of Alcoholic Beverages and Tobacco,enter a final order: Holding respondent Clarece Hicks d/b/a Sand-spur Saloon guilty under the third charge in the Notice To Show Cause; Imposing a civil penalty of $500; and Dismissing the other charges in the Notice To Show Cause. Jurisdiction is retained for purposes of the ruling on the Division's Motion For Costs And Attorneys Fees, served February 25, 1985, filed simultaneously with this Recommended Order and for purposes of determining the Division's reasonable expenses, including attorney fees. RECOMMENDED this 12th day of March, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 12th day of March, 1985.
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the notice to show cause dated June 16, 1992; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent owns an alcoholic beverage license, license number 5803205, for a business known as Tiffany & Suzy Q's Fun and Munch located in Apopka, Florida. Mr. Bowers, Respondent's husband, does not own the subject business or license, and may not as he has prior felony convictions within the last past five years that preclude his eligibility to own or hold an alcoholic beverage license. At all times material to the allegations of this case, Mr. Bowers was on the licensed premises acting as the manager or other person in charge of the business activities. Acting on information from a confidential source, the FDLE commenced an investigation of several vendors rumored to be involved in illegal foodstamp activity. FDLE retained several confidential informants (CI) to offer foodstamps for sale at substantially reduced prices. One of the confidential sources, Ella Mae Davis, posed as the seller at Respondent's licensed store. Acting in concert with another CI, Ms. Davis went to the store and offered foodstamps for sale to Respondent's husband. Ms. Davis alleged that the foodstamps had been stolen by her boyfriend, and that she wanted to sell them. Her instructions were to make Mr. Bowers (or other person at the store if there had been another) aware that the stamps were illegal, and to determine if a sale would be possible. On the first occasion, Mr. Bowers was receptive to the offer made by Ms. Davis and the CI. Ms. Davis observed Mr. Bowers go into a backroom at the store with the other CI who had possession of the foodstamps. When the CI came out, and the two women left the premises, the CI had the money received in exchange for the foodstamps. On a second visit to the store, Ms. Davis met Mr. Bowers who introduced her to a second male. Ms. Davis observed a second exchange of foodstamps for cash with the second male. This transaction took place at the licensed premises. During each of the transactions at the licensed premises, Ms. Davis observed Mr. Bowers' physical proximity to the exchange of foodstamps for cash. On each occasion the rate of exchange for the foodstamps was approximately fifty percent of the face value of the stamps. The Respondent was not on the licensed premises on either occasion when foodstamps were exchanged by Ms. Davis or her partner CI.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order revoking Respondent's beverage license. DONE AND RECOMMENDED this 21st day of January, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4808 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 9 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Thomas A. Klein Chief Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Para Bowers, pro se 104 East 18th Street Apopka, Florida 32703 Richard W. Scully, Director Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
