The Issue Whether the Petitioners are entitled to a transfer of the quota license they attempted to apply for in their initial application. Whether the Petitioners are entitled to an alcoholic beverage license for a restaurant based upon their second application. Whether the Petitioners are entitled to an alcoholic beverage license based upon their third application in spite of the county's refusal to approve the zoning of the proposed location until a pending declaratory judgment before the circuit court is resolved. Whether the Respondent is estopped to deny any of the applications because of the representations made by a field agent for the agency that to his knowledge, there were no problems at the proposed location.
Findings Of Fact The joint stipulation of facts entered into by the parties on December 21, 1988, are adopted as the findings of fact in this proceeding. A copy of the stipulation is attached and made part of this Recommended Order.
Findings Of Fact At all times pertinent, Respondent, Wilbert Barrington, d/b/a Barrington Inn (Respondent), has held license number 43- 19, Series 2-COP, for the sale of beer and wine at the Barrington Inn on State Road 59, north of Lloyd, Jefferson County, Florida. Respondent's license does not authorize him to sell gin. December 2, 1984, Respondent sold two 200 ml. bottles of Seagram's Gin at his licensed premises, one to a patron and one to an undercover agent employed by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent has had three prior similar violations. Respondent denied the allegations and testified at final hearing that the Division's undercover agent was not at his licensed premises on December 2, 1984, that he did not sell any gin on December 2, 1984, and that he does not sell gin or vodka at his licensed premises.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended, in view of Respondent's prior violations and testimony at final hearing, that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking alcoholic beverage license number 43-19, Series 2-COP, held by Respondent, Wilbert Barrington, d/b/a Barrington Inn. RECOMMENDED this 16th day of October, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings, The Oakland Building 309 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1985. COPIES FURNISHED: Thomas A. Klein Staff Attorney Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301 Ike Anderson, Esq. P. O. Box 56 Monticello, FL 32344 Richard B. Burroughs, Jr. Secretary The Johns Building 725 S. Bronough Street Tallahassee, FL 32301 Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronorugh Street Tallahassee, FL 32301
The Issue Whether respondent's alcoholic beverage license should be suspended or revoked on charges that its licensed lounge: (1) was resorted to be persona using illicit drugs or was used for the keeping or selling of' illicit drugs; and (2) constituted a public nuisance by virtue of such illicit drug activity.
Findings Of Fact Respondent and the Licensed Premises Respondent holds alcoholic beverage license No. 27-00312 (Series 2- COP). Under this license he owns and operates a lounge known as the "Laugh Inn" at 49 Navy Boulevard, Pensacola, Escambia County, Florida. The lounge sells beer, wine, and food to its customers. (Testimony of W. Flynn; P-13.) The Laugh Inn ("licensed premises" or "premises") has two main rooms with a connecting passageway. The front room contains tables, chairs, pool tables, and a bar. To the rear of the bar is an enclosed storage room separating the front from the rear room. The passageway connecting to the rear room is approximately 6 feet wide. On the north aide of the passageway are three restrooms. The rear room contains additional tables and chairs, pool tables, pinball machines, and a "football" table. Because the two main rooms are separated by the storage room, a person tending bar in the front room would be unable to see the rear room area. The rear room ceilings contain three exhaust fans to remove smoke and odors. (Testimony of W. Flynn; R-1.) The licensed premises does not include any area outside the lounge. No property outside of the lounge building was included in the sketch attached to respondent's application for an alcoholic beverage license. Be owns land in back of the premises on which he has placed a small trailer. Be owns a narrow strip of land on each side of the premises and a 3-foot-wide strip of land in front, facing Navy Boulevard. The front parking area--where customers ordinarily park their cars--is neither owned nor controlled by respondent. This parking area is on publicly owned property. Several windows on the premises face the parking area, but they have curtains which are ordinarily closed during business hours. There are no other windows on the premises from which the front parking area can be seen. (Testimony of W. Flynn; R-1.) II. Illicit Drug Activities on or Adjacent to Licensed Premises In April, 1982, undercover officers from the Escambia County Sheriff's Office began an investigation to determine whether violations of the controlled substances law were occurring on the licensed premises. On April 20, 1982, Deputy Linda Dees of the Santa Rosa County Sheriff's Office took delivery of a controlled substance--approximately 25.6 grams of cannabis (marijuana) --from Eric Babcock, a patron of the premises. The delivery took place on the premises at the front bar, where Deputy Bees and Mr. Babcock were seated. He placed the bag of cannabis into her purse--which was on her lap below the bar--and she paid him $35. (Testimony of Dees.) On that same day, April 20, 1982, Deputy Marilyn Medlin of the Escambia County Sheriff's Office took delivery of a controlled substance--approximately 12 grams of cannabis--from Mike Milstead, another patron. Although discussions for the purchase took place in the licensed premises--in a normal tone of voice- -the drugs were delivered and paid for in a vehicle located in the parking area in front of the licensed premises--an area neither owned nor controlled by respondent. (Testimony of Medlin; Seven days later, on April 27, 1982, Deputy Medlin purchased a controlled substance--three tablets of Lysergic Acid Diethylamide (LSD) --from Lydia Quinonas, another patron. The purchase and delivery took place in the rear room of the premises, where Deputy Medlin and Ms. Quinonas were seated. The three tablets were small in size--smaller than ordinary aspirin tablets; Ms. Quinonas delivered the tablets by placing the palm of her hand over the deputy's upturned palm and dropping the tablets. During this transaction, several other persons were in the rear room playing pool. The area was well lighted. (Testimony of Medlin.) On the same day--April 27, 1982--Deputy Dees purchased approximately 21.7 grams of cannabis from Steve Sweat and Kenny Crabtree, patrons of the bar. They also gave Deputy Bees the remaining portion of a marijuana cigarette. The delivery and sale of these drugs took place outside the licensed premises in a truck parked in the front parking area--an area neither owned nor controlled by respondent. Deputy Dees placed the drugs inside her purse where they remained until delivered to law enforcement authorities. (Testimony of Dees.) On May 3, 1982, Deputy Medlin purchased a bag containing approximately 18 grams of cannabis from Thurston Raines, a bar patron. The delivery took place in a private vehicle parked in a well-lighted area in front of the premises. (Neither the vehicle nor the area in which it was parked was owned or controlled by respondent.) Deputy Medlin immediately placed the cannabis into her purse where it remained until delivered to the Sheriff's Office. (Testimony of Medlin.) Later in the evening on May 3, 1982, Deputy Dees i1purchased approximately 17 grams of cannabis from Eric Babcock, a patron of the bar. Mr. Babcock removed a grocery bag concealed above the ceiling in the rear room of the premises. They then proceeded to a private vehicle parked in front of the premises where Deputy Dees selected one of what appeared to be several bags of cannabis in the grocery sack. After placing the bag and the grocery sack in her purse, they returned to the rear room of the premises, where Mr. Babcock returned the grocery bag to its hiding place. (Deputy Dees concealed the grocery bag in her purse when they reentered the premises because Mr. Babcock did not want to be seen carrying it.) The ceiling of the rear room was recently replaced and respondent was not informed of any cannabis having been stored in the ceiling. (Testimony of Dees.) On May 4, 1982, Louis Austie gave Deputy Medlin the remaining portion (.3 gram) of a marijuana cigarette. The cigarette was being smoked by several persons standing outside the front door of the licensed premises. When a sheriff's patrol car entered the lot, Mr. Austie quickly extinguished the cigarette and gave it to Deputy Medlin. This drug transaction took place on property neither owned nor controlled by respondent. (Testimony of Medlin.) During the evening of May 14, 1982, Deputy Medlin telephoned Kay Towney, the night bartender on the premises, and asked her if she knew anyone who would sell her marijuana. Ms. Towney replied that there was a customer on the premises who would sell it to her. Deputy Medlin then proceeded to the premises where Ms. Towney introduced her to Tom Suggs, a customer. After negotiating the sale of .25 ounces of marijuana, Deputy Medlin and Mr. Suggs proceeded to a private car in the front parking area; the delivery took place inside the parked vehicle. (In a subsequent statement given to police officers, Ms. Towney stated that she was aware of drug trafficking on the licensed premises; that she helped arrange drug transactions between her customers; that she knew Eric Babcock had hidden drugs in the ceiling; and that she knew Mr. Babcock, Mark Padgett, and one other person were drug dealers.) (Testimony of Medlin, Kiker.) On May 14, 1982, Mark Padgett approached Deputy Medlin on the premises and asked her if she wanted to buy some quaaludes. She responded that she did. He then delivered a drug to Deputy Medlin in the parking lot area in front of the premises. Subsequent laboratory analysis revealed that drug was not a controlled substance. (Testimony of Medlin.) On several occasions during her investigation, Deputy Medlin observed people in the rear room of the premises smoking what appeared to be marijuana. Since she is familiar with the odor of marijuana smoke, her conclusion is accepted as persuasive. (Testimony of Medlin.) On three or four separate occasions during April, 1982, Stewart Stamm- -a person familiar with the appearance and odor of burning marijuana--saw customers smoking marijuana in the rear room of the licensed premises. He also has purchased marijuana from patrons of th& bar approximately 30 times. (Testimony of Stamm.) On May 26, 1982, Deputy Medlin engaged in an open and loud conversation with Kay Towney, the night bartender. The conversation took place at the bar on the premises and concerned the use of quaaludes. Other customers were 5 to 7 feet away. Ms. Towney then sold to Deputy Medlin what she represented to be two quaalude tablets. 2/ (Testimony of Medlin.) On April 20, 1982, Deputy Medlin observed Kay Towney remove what appeared to be brushes from a compartment in the pool table in the rear room on the premises. A few minutes later, a patron returned to the pool table, opened the compartment and inserted several clear plastic bags containing what appeared to be marijuana. (The bags have not been recovered, so their contents have not been definitively identified.) (Testimony of Medlin.) III. Respondent was Unaware of Illicit Drug Activities on or Adjacent to Licensed Premises Respondent did not know that illicit drug activities had occurred and were occurring on or adjacent to the licensed premises; neither did Frances Flynn, his wife, who acted as the night manager until October, 1981, when she left for eight months to care for her terminally ill brother-in the State of Washington; neither did Doris Sheldon, the daytime bartender; neither did Carolyn Burch, the employee who closed the premises each morning at 2:30 a.m. (Testimony of W. Flynn, F. Flynn, Sheldon, Burch.) Respondent employed Larry Harrison and Pat Randolph to clean in and around the licensed premises on a daily basis. Mr. Harrison and Ms. Randolph would occasionally find in the parking area the remains of what they suspected to be marijuana cigarettes; but there is no evidence that they ever informed respondent of their suspicions. (Testimony of Harrison, Randolph.) No law enforcement officers, including agents of the DABT, have ever informed respondent that they suspected or had reason to believe that illicit drug activities were occurring on the licensed premises. Several regular customers of the bar testified that they had never sheen controlled substances being used, sold, or stored inside or outside the licensed premises. (Testimony of Saucier, Settles, Finney, Donlon.) All of the purchases of the controlled substances described in section II above were initiated by the undercover officers involved. Most of the described purchases and deliveries of controlled substances occurred in the front parking area--an area neither owned nor controlled by respondent and which is not part of the licensed premises. IV. Failure to Diligently Supervise and Maintain Surveillance of Licensed Premises During Evening Hours The illicit drug transactions described above occurred, for the most part, during the evening hours. During those hours--from 6:00 p.m. to 2:30 a.m.--Kay Towney served as the night bartender. Frances Flynn, wife of respondent, ordinarily served as the night-shift manager and supervised the night bartender; but Ms. Flynn was absent from October, 1981, to May, 1982, when she was caring for her ill brother in Washington. (Testimony of W. Flynn, F. Flynn.) Ms. Towney was hired by respondent toward the end of 1981--while his wife was in Washington. At the job interview, respondent asked her if she used drugs; she answered she had used marijuana in the past. During April and May, 1982--when the drug transactions already mentioned took place--Ms. Towney was the only employee regularly on the premises during the night shift. Although respondent considered her a bartender, she considered herself the night manager. (Testimony of W. Flynn.) In April and May, 1982--when the alleged violations occurred-- respondent did not normally supervise and maintain surveillance of the premises during the night shift. He would open the bar at 10:00 a.m. and work there throughout the day, until 6:00 or 7:00 p.m. Then he would go home; Ms. Towney was instructed to call him if any problems arose. During Ms. Flynn's eight- month absence, respondent employed David Saucier to periodically inspect the premises during the night shift. Mr. Saucier inspected the premises approximately ten times and did not observe any illicit drug activities on or adjacent to the premises. (Testimony of W. Flynn, Saucier.) During the time in question--April and May, 1982-- it is concluded that respondent was negligent in that he did not exercise due diligence in supervising and maintaining surveillance of the licensed premises during the evening hours. illicit drug activities occurred repeatedly on the premises-- particularly in the rear room. Such activities were open and persistent and recur- ring. Marijuana was openly smoked in the rear room. The fact that the three exhaust fans may have helped remove the smoke--thus limiting it to the rear room--does not excuse respondent's failure to monitor the rear room area. The person nominally in charge of the premises during the night shift was aware of the illicit drug activity; she not only condoned it but actively participated in it. Although respondent was normally absent from the premises during the night shift, he employed a friend to inspect the premises only about ten times during the night-shift manager's eight-month absence.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage' license be suspended for sixty (60) days, subtracting therefrom the number of days such license has been suspended due to the emergency suspension order served May 28, 1982. DONE AND RECOMMENDED this 29th day of June, 1982, In Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1982.
Findings Of Fact Petitioner is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is 201 West, Inc., d/b/a Central City, who is the holder of alcoholic beverage license number 11-00259, Series 4-COP, a "quota license." Respondent's licensed premises is located at 201 West University Avenue, Gainesville, Alachua County, Florida. Craig Cinque is Respondent's sole director and corporate officer. Joseph Cinque, Craig Cinque's father, was formerly Respondent's sole director and corporate officer. Prior to becoming the owner of Central City, Craig Cinque managed the licensed premises on behalf of his father. During this period of time, the Division filed ten separate Notices to Show Cause against Respondent, alleging multiple sales to and consumption of alcoholic beverages by underaged persons. On August 29, 1989, the licensed premises was closed by an Emergency Order of Suspension. The administrative charges arising therefrom were resolved by a Stipulation and Consent Agreement, wherein the Respondent in that case admitted substantially to all of the violations. Craig Cinque individually executed the agreement, admitted responsibility for previous violations, and acknowledged that future violations of a similar nature could result in suspension or revocation of the alcoholic beverage license. The agency has issued numerous Notices to Show Cause against Respondent since the entry of the consent order. However, unproven Notices to Show Cause and unproven counts within any Notices to Show Cause are only unproven accusations, and as such are not probative herein even for purposes of showing "aggravation." Beverage Law Institute is an "approved trainer" under the Responsible Vendors Act, having been approved by the Petitioner as such. Petitioner certified Respondent Central City as a certified Responsible Vendor under the Act, on April 13, 1990. See, Subsections 561.701-561.706 F.S. Of the 483 nondistributor alcoholic beverage licensees in Alachua County, only 94 have been certified by Petitioner as Responsible Vendors. Of those 94, only 13 hold "4-COP" licenses, the category of license held by Respondent, which permits liquor, beer, or wine for consumption on premises or in a sealed container. Prior to the events of the instant Notices to Show Cause, and continuing through the 14-month period of the Notices to Show Cause and beyond, Respondent was engaged in a voluntary program designed to teach employees not to serve alcoholic beverages to underaged persons. Many of the materials therefor were provided by Beverage Law Institute. The training program and procedures involved multiple ID checkers at the front door. Also at the front door, wristbands to signify and quickly identify patrons of legal drinking age were issued. Once snapped on a customer's wrist, the band itself was stamped at a right angle across the customer's wrist to prevent or at least inhibit the wristband's transfer to an underage patron and to prevent a patron bringing in a counterfeit or "ringer" wristband. All patrons, regardless of age, received a stamp directly on the wrist to identify that they had paid their admission fee. Security personnel circulated inside the licensed premises checking drinks and wristbands, and waitresses were also instructed to check on drinks already purchased by customers. The training programs and procedures also involved Respondent's policy manual regarding IDs, extensive training and testing of employees, frequent oral reminders to employees concerning the law and concerning licensee policy, sporadic staff meetings regarding policy, videotaped instruction programs, provision of and instructions to employees to use an "ID Checking Guide" at the front door and at every internal bar within the licensed premises, confiscation of fake or questionable IDs at the door, 1/ and use of warning handbills given out to customers. Upon receipt, the handbills proclaiming the licensee's "of age only" policy were usually immediately discarded by customers. Some employees looked upon their training with more enthusiasm than others. Some employees considered the policy and training all for show. Most employees complied regularly with the requirements for training, review, and instructions. A few were lax in their compliance and had to be urged to attend staff meetings or to retest. In addition to all this, from the time the Responsible Vendor tests were available, all employees except two cashiers were tested according to the requirements of the Responsible Vendor Act and within the time frames provided therein. Every underage operative who testified admitted she or he had been "carded" at the door and that none had been issued wristbands. The parties stipulated that all of the individuals named in the four Notices to Show Cause (except for those alleged to have sold or given alcoholic beverages) were under the legal drinking age on the dates indicated by the respective Notices to Show Cause and that although each of these individuals "was actually in possession of alcoholic beverages as plead (sic), there was no evidence that any of the alcoholic beverages were obtained from Respondent's employees, agents, or servants." The stipulation listed the underage persons of the Notices to Show Cause but did not employ the term "consumption" which was specifically used only in the second Notice to Show Cause (GA11890496). Petitioner put on no witnesses as to "consumption." Likewise, Petitioner did not have admitted in evidence any confiscated alcoholic beverages alleged to have been sold by Respondent's agents/employees, nor did Petitioner present any laboratory reports to establish that any substance sold was alcohol. The only evidence of alcohol content is discussed infra. With regard to Craig Cinque's attitude and Central City's compliance with the Responsible Vendors Act, the testimony of Eileen Tenly and of William Cooter has been weighed and considered. Ms. Tenly is a totally noncredible witness whose testimony demonstrates an "axe to grind," and whose candor and demeanor is unpersuasive of anything except her animosity for Mr. Cinque. Petitioner's Investigator William Cooter, however, testified credibly that after having numerous conversations with Mr. Cinque on the subject of underage sales, Mr. Cinque stated that he was not worried about losing his alcoholic beverage license because he could get another one in his mother's name. On the other hand, Mr. Cooter, by his own testimony, has been invited by Mr. Cinque to instruct and has, in fact, instructed Mr. Cinque's employees on how to prevent underage drinking. The evidence as a whole, but most particularly that of Prince Miles, Respondent's janitor, who is a credible witness, is persuasive that patrons sometimes smuggle alcoholic beverages onto the licensed premises and that each time the establishment closes, commercial alcoholic beverage containers which are not part of the inventory sold by Respondent must be swept out. Since this smuggling activity must substantially reduce Respondent's profits, it is a logical inference that such smuggling is contrary to Respondent's policy and that Respondent does not encourage or condone it, whether done by adults or minors. I. Notice to Show Cause GA11890374; September 16, 1989 through February 9, 1990; sale to Toombs, Kittles, Goldtrap, and Ormsbee by Green, Halladay, Howell, and Grimes and possession by Peters, Conf, Kelly, Garcia, Fernandez, Shiskin, Brejhanan, Benz, Yawn, and Plettner All of the violations charged in Notice to Show Cause GA11890374 arose prior to Respondent's becoming a certified Responsible Vendor on April 13, 1990. On September 16, 1989, Ryan Conf and Alejandra Peters were each under the age of 21 and in actual possession of alcoholic beverages inside the licensed premises as pled. On September 19, 1989, Central City bartender David Green sold the Division's underaged operative, Bridgette Toombs, a liquid beverage in a long- neck, factory-produced 12-ounce bottle labelled "Michelob Dry." At that time, the licensed premises was not busy and Mr. Green noted that Ms. Toombs had no wristband. He therefore checked Ms. Toombs' underage ID and instructed her that since she was old enough to drink, she should go get a wristband. This transaction was observed by Petitioner's agent, Ms. Pendarakis, but Ms. Pendarakis did not overhear the conversation. After delivering a sample of the liquid beverage to Ms. Pendarakis in the ladies' room, Ms. Toombs crossed in front of Mr. Green's bar on her way to exit the licensed premises. Mr. Green sent word to Ms. Toombs by another Central City employee that he wanted to see her. Ms. Toombs complied with Mr. Green's request and showed him her underage ID once more. At that point, Mr. Green recognized his error in thinking that Ms. Toombs was 21 or over and called over several other Central City employees, all of whom viewed the ID showing Ms. Toombs was actually two months short of 19 years old. Mr. Green was not arrested until after the ID was passed around, so it may be inferred that his recognizing his mistake was not the result of any confrontation with Petitioner's agents or law enforcement officers or due to his perception that he had been "caught." Indeed, Petitioner's witness, Ms. Toombs, attributed Mr. Green's illegal sale to her as a mistake in subtraction. Mr. Green had previously successfully passed all tests required under the licensee's policy in existence before the Responsible Vendor tests were available. On October 20, 1989, Charlotte Kelly and Alezandro Garcia, who were under the age of 21, were each in the actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1989, Cesar Fernandez, who was under the age of 21, was in possession of an alcoholic beverage inside the licensed premises. On the same date, underage operative Megan Kittles was inside the licensed premises. She was not wearing a wristband, and her hand was stamped indicating that she was under 21. She first approached a white male bartender who checked her and refused to serve her. She then ordered a rum and coke from Respondent's bartender, Craig Halladay. Mr. Halladay did not check Ms. Kittles' ID and served her a liquid beverage which Mr. Szabo of the Division testified that he had identified by smell as containing alcohol. No one saw the drink mixed, and Mr. Szabo admitted that he did not know what kind of alcohol the drink contained. He stated that he "would not swear it was rum." Mr. Szabo also was not aware until formal hearing that Respondent sold any nonalcoholic mixed drinks. Although the evidence is weak, it is persuasive that Ms. Kittles was served alcohol. Mr. Halladay successfully passed the licensee's policy test before this incident and the Responsible Vendor test afterwards. Also on October 21, 1989, Matthew Goldtrap, another underage operative, ordered a "Budweiser" and obtained a 12-ounce bottle labelled "beer" from a floor waitress named Shannon Howell. Mr. Goldtrap had no wristband but did have a stamp on his wrist. He gave the container to Investigator Smith. Mr. Szabo then took both of Respondent's employees into custody. Mr. Goldtrap does not drink alcohol. Investigator Smith did not testify, but it is inferred from the description of the beer bottle and the circumstances of the transaction as a whole that Mr. Goldtrap was served an alcoholic beverage. Ms. Howell successfully passed the licensee's test prior to this incident. On January 19, 1990, Scott Shiskin, Michael Brejhanan, and Carolyn Benz, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. On February 9, 1990, Central City bartender Steve Grimes sold Petitioner's 19-year old operative Octavia Ormsbee a liquid beverage. Ms. Ormsbee, who had no wristband on, was first denied a sale of alcoholic beverage at the downstairs back bar after Respondent's bartender there checked her underage ID. Ms. Ormsbee then went to an upstairs bar and ordered a "Bud Light." She was told by Mr. Grimes, a bartender at that bar, that they were out of "Bud Light," and by agreement, a beer bottle labelled "Budweiser" was substituted. Ms. Ormsbee does not drink alcohol and did not testify that what she received from Mr. Grimes was alcohol. The bottle purchased by Ms. Ormsbee was turned over to Officer Byrd of the Gainesville Police Department. Officer Byrd, who is familiar with alcoholic beverages through his own education, training, practice, and experience, identified the contents of the bottle purchased by Ms. Ormsbee as being "beer." Officer Byrd turned the bottle over to Petitioner's agent Cooter. Also on this occasion, Preston Yawn and Eric Plettner, who were under the age of 21, were each actually in possession of alcoholic beverages inside the licensed premises. Mr. Grimes had successfully passed the licensee's policy test prior to this incident. All of the underaged operatives who testified concerning this Notice to Show Cause testified that Petitioner's adult operatives forbade them to drink (consume) what they were sold and that they did not consume any. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the minors actually named in the Notice to Show Cause constituted their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, mere possession does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 2/ Therefore, Petitioner has only established that on September 19, 1989 Respondent's bartender sold an alcoholic beverage to Petitioner's underage operative Bridgette Toombs; that on October 21, 1989, Respondent's bartender sold an alcoholic beverage to the Petitioner's underage operative Megan Kittles; that also on October 21, 1989, Respondent's floor waitress sold Petitioner's underage operative Matthew Goldtrap an alcoholic beverage; and that on February 9, 1990, Respondent's bartender sold the Division's underage operative Octavia Ormsbee an alcoholic beverage. One of these sales was clearly a mistake and two other operatives had to go to two bartenders each before an illegal sale was made. II. Notice to Show Cause GA11890496; June 8, 1990 through June 16, 1990; sale to Wearner by Edge and to Seligman by Lemberger and Bergine and possession by Tetstone, Lockey, Klug, Skipper, and Bissell On June 8, 1990, Jennifer Tetstone and Amy Lockey, who were under the age of 21, were in actual possession of alcoholic beverages inside the licensed premises. On June 16, 1990, Ann Klug, Shana Skipper, and Michael Bissell were in actual possession of alcoholic beverages inside the licensed premises. Also on June 16, 1990, Central City bartenders Michael Edge, Michael Bergine, and Robert Lemberger, respectively, sold each of the Division's underage operatives Kathy Wearner (who did not testify but who was stipulated to be underage) and Charles Seligman an alcoholic beverage. Neither underaged operative wore a wristband or was requested to produce an ID for purposes of the respective sales. As of date of formal hearing, the Respondent continued to employ these same bartenders. All of these bartenders had successfully completed the Responsible Vendor test before these incidents. Mr. Edge also had passed the licensee's earlier policy test. The underaged operative, Kathy Wearner, asked Michael Edge for "a Budweiser" and was sold liquid in a "Budweiser" beer bottle inverted in a drinking glass. Officer Rockey of the Gainesville Police Department convincingly described the liquid that came out of the bottle as beer, an alcoholic beverage. He turned the materials confiscated over to an unnamed agent of Respondent and has not seen them since. On the same date, Central City bartender Robert Lemberger sold a 12-ounce bottle labelled "Budweiser" to 18- year-old operative Charles Seligman. Mr. Seligman was at all times without a wristband and bearing a stamp on his hand. Mr. Seligman delivered the bottle he received from Mr. Lemberger to Officer Posey of the Gainesville Police Department who had watched the entire transaction. Mr. Seligman later purchased a 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to Officer Posey. Mr. Seligman purchased a third 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to one of Petitioner's agents, Ernest Wilson. Mr. Seligman does not drink alcohol. Agent Wilson does drink alcohol and testified that the bottle Charles Seligman handed him was, in fact, beer. Although Agent Wilson also testified that Mr. Seligman's first name was "Tom" and that Mr. Seligman had purchased a rum drink, nonetheless, Mr. Wilson was convincing that the bottle handed him by Mr. Seligman did, in fact, contain beer, an alcoholic beverage. Officer Posey convincingly described the first bottle he received from Mr. Seligman as containing beer, an alcoholic beverage, and upon all the circumstances, the undersigned infers that the second bottle given Officer Posey also contained beer. All the underaged operatives who testified on this Notice to Show Cause testified that they were forbidden to drink (consume) what they were sold and did not do so. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the other minors actually named in the Notice to Show Cause constitutes their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 3/ Therefore, Petitioner has established only that on June 16, 1990 Respondent's personnel sold one alcoholic beverage to the Petitioner's underage operative Wearner and three alcoholic beverages to the Petitioner's underage operative Seligman. III. Notice to Show Cause GA11900209; September 22, 1990 through September 29, 1990; service to, or consumption by Stanton, Coody, Willis, and, Torres On September 22, 1990, Amy Stanton and Janet Coody, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. On September 29, 1990, Betty Willis and Jose Torres, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 4/ IV. Notice to Show Cause GA11900254 October 19, 1990 through November 16, 1990; 9 counts possession by Harriett, Ortega, McKinney, Nelson, Smith, Winter, Joyner, Cooke, Sammon; "giving" by Blackwell and Strawser On October 19, 1990, Steven Harriett, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1990, Jamie Ortega, who was under the age of 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 20, 1990, Brian McKinney, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On November 15, 1990, Karen Nelson, Hollie Smith, Michael Winter, and Julia Joyner, all underage, were in actual possession of an alcoholic beverage inside the licensed premises. On November 16, 1990, Denise Cooke and Teresa Sammon, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 5/ No evidence was introduced to establish the allegations of Counts 4 and 6 of Notice to Show Cause GA11900254, alleging "giving."
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic and Beverages and Tobacco enter a Final Order dismissing Notices to Show Cause GA11900209 and GA11900254; finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890374, imposing a total of $1750 in civil fines therefor; and finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890496, imposing a total of $2000 in civil fines therefor. RECOMMENDED this 28th day of June, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 28th day of June, 1991.
The Issue The issues for determination are: (1) Whether Respondent violated Section 562.12(1), Florida Statutes, by selling alcoholic beverages in a manner not authorized by law and/or maintaining a place where alcoholic beverages were sold unlawfully; (2) Whether Respondent violated Section 561.29, Florida Statutes, by failing to comply with the terms set forth in a prior Final Order of the Division of Alcoholic Beverages and Tobacco; and (3) If so, what sanctions should be imposed against Respondent's alcoholic beverage licenses.
Findings Of Fact Respondent, Easy Way of Lee County, Inc., d/b/a Hollywood Underground, holds a bottle club license number 46- 03606, issued by the Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Department/Division) and has held such license since June 1995. Under this license, Respondent operates a bottle club known as Hollywood Underground (the licensed premises/the premises or Hollywood Underground) located at 16440 South Tamiami Trail, Unit 1, Fort Myers, Florida. At all times relevant to this action, Mattheos Milonas was the director, president, secretary, and treasurer of Easy Way of Lee County, Inc., d/b/a Hollywood Underground, and the holder of the above-referenced alcoholic beverage license. On or about February 12, 1999, Peggy Duffala, a special agent with the Department, organized an undercover on-site investigation of Hollywood Underground, based on a complaint that Respondent was in violation of certain laws pertaining to the sale of alcoholic beverages without a proper license. On February 12, 1999, Agent Duffala, and two other special agents of the Department, Agent David Perez and Agent Patrick McEnroe, went to the licensed premises to further the investigation. When Agent Duffala arrived, she conducted surveillance in the parking lot of the licensed premises for approximately one and a half hours. During that time, Agent Duffala observed patrons entering and exiting the premises, but saw no patrons entering the premises carrying alcoholic beverages or containers of any kind in their hands. On February 12, 1999, at or near 2:30 a.m., acting in an undercover capacity, Agent Perez and Agent McEnroe entered the licensed premises. Upon entering the premises, Agent Perez paid a $5.00 cover charge and received a wristband. Perez brought no alcohol into the premises with him on that evening. Once inside the licensed premises, Agent Perez went to the bar where he was approached by bartender Norman Vanderbiest. After Vanderbiest asked him what he would like, Agent Perez ordered a Budweiser beer. Vanderbiest retrieved the beer from the cooler behind the bar and gave Agent Perez the beer. After Perez asked how much the Budweiser cost, Vanderbiest responded, "$3.00." Agent Perez then gave $3.00 to Vanderbiest, who subsequently rang up the sale and placed the money in the cash register. At no time during the transaction described in paragraph 6 did Vanderbiest ask Agent Perez if he had brought any alcoholic beverages with him to the licensed premises. In fact, Agent Perez had not brought any alcoholic beverages into the licensed premises on August 12, 1999. Furthermore, prior to February 12, 1999, Agent Perez had never visited the licensed premises, and thus, had never taken any alcoholic beverages there. After Agent Perez purchased the Budweiser beer, he moved from the main bar area to the west end of the bar where he remained for about ten minutes. While situated at the west end of the bar, Agent Perez observed several patrons approach the bar and speak with Vanderbiest. Agent Perez was unable to hear what was being said but he observed Vanderbiest serve each patron an alcoholic beverage. After receiving the alcoholic beverages, each patron would then give Vanderbiest money. At no time during these transactions did Agent Perez observe patrons present cards to Vanderbiest to punch. Furthermore, Agent Perez did not see Vanderbiest check a logbook before he served alcoholic beverages to those patrons. From the west end of the bar, Agent Perez saw 10 to 15 patrons entering the licensed premises. During that time, Agent Perez observed that none of the patrons entering the premises brought alcoholic beverages with them. Agent Patrick McEnroe entered the premises on February 12, 1999, at about 2:30 a.m. Upon entering the premises, Agent McEnroe paid a $5.00 cover charge. Agent McEnroe brought no alcoholic beverages into the licensed premises with him nor did he receive a ticket or card to be punched. Once inside the premises, Agent McEnroe went to the bar and ordered a Bud Light beer from bartender, Norman Vanderbiest. Vanderbiest informed Agent McEnroe that the cost was $3.00, then retrieved a Bud Light beer from the cooler and handed it to Agent McEnroe. Agent McEnroe gave the bartender $3.00 for the beer. Agent McEnroe purchased three bottles of beer that evening. In none of these transactions did Vanderbiest ask Agent McEnroe if he brought any beer with him nor did he ask Agent McEnroe for a card to be punched. Later that evening, after Agents Perez and McEnroe exited the premises, Division agents, assisted by the Lee County Sheriff's Office, entered and raided the premises. During the raid, agents seized 571 containers of alcoholic beverages, $315.00 in cash from the cash register, and two notebooks. One of the notebooks seized was a log book containing entries listing alleged patrons' names along with an alcoholic beverage type, a number assigned to the beverage, and a date. The last entry in the log book was made on February 6, 1999, six days prior to the raid. Neither Agent Perez nor Agent McEnroe was listed in the logbooks. During the raid, Division agents entered the premises and arrested the manager of the club. Subsequently, the manager pled guilty in the Lee County Circuit Court to the criminal charge of keeping or maintaining a place, the licensed premises, that sold alcoholic beverages without a proper license on February 12, 1999. The licensed premises had procedures that governed how employees of Hollywood Underground were to accept and distribute beer and liquor brought into the premises by patrons. When a patron brought beer into the licensed premises, an employee of the club was to write on a card the number and kind of beer that the patron brought to the premises. Once this information was recorded on the card, the employee would give the card to the patron. After the club employee accepted the beer from and issued the card to the patron, in order for the patron to retrieve one or more of the beers, the patron was to present the card to the bartender. The bartender was to then give the patron the requested number of beers and punch the card the corresponding number of times, thereby indicating to both the bartender and patron the number of beers the patron had been given and how many remained. To facilitate ease in the dispensing of the beer, like brands of beer were commingled and placed in a cooler with other containers of identical brands. No attempt was made to designate or label containers of beer by the patrons who brought them into the premises. With regard to liquor, the policy of Hollywood Underground was that bottles of liquor brought in by patrons were to be identified in a manner to ensure that patrons were served liquor only from the bottles that they brought to the premises. In accordance with this policy, when a patron brought a bottle of liquor into the licensed premises, an employee of the club was to put a label on each bottle and write a number on the label. Next, in a log book, the employee was to write the number designated on the club's label, the kind of liquor, and the name of the patron who brought in that bottle of liquor. On February 12, 1999, these policies were not implemented by employees of the licensed premises as evidenced by the transactions involving Agents Perez and McEnroe. In the fall of 1998, Tom Lloyd, a videographer for Channel 6 television, followed Division agents into the licensed premises for purposes of an undercover television news story regarding illegal sale of alcoholic beverages by Respondent. Lloyd did not bring any alcoholic beverages with him to the licensed premises. Nevertheless, while sitting at the bar, Lloyd was approached by a bartender who solicited an order from Lloyd for an alcoholic beverage. Lloyd requested a rum and coke and was sold a rum and coke for $4.00 by the bartender. Prior to the Administrative Action which is the subject of this proceeding, three other administrative actions have been filed against Hollywood Underground for violations of Section 562.12, Florida Statutes. All of the three previously filed administrative actions resulted in disciplinary action against Respondent's license. Respondent was charged in two separate administrative actions (DBPR Case Nos. 46-95-0582 and 46-95-0089) with selling alcoholic beverages in a manner not permitted by license, in violation of Section 562.12, Florida Statutes. These two cases were resolved by combined Consent Order (Final Order No. BPR-96-02540), wherein Respondent paid a $5,000 civil penalty and agreed that its "agents, servants, or employees would not sell or supply alcoholic beverages to any person other than the patron who brought such alcoholic beverages onto the premises." Respondent also agreed to diligently "ensure that no alcoholic beverage would be dispensed to any person that did not bring such alcoholic beverage onto the premises." In DBPR Case No. 46-97-0890, Respondent was charged for the third time with selling alcoholic beverages in a manner not permitted by license, a violation of Section 562.12, Florida Statutes. This case was resolved by Consent Order (Final Order No. BPR-98-06888), wherein Respondent paid a $7,500 civil penalty and agreed to take corrective action regarding the unlawful sale of alcohol on the premises. Respondent agreed to prevent further occurrences of violations of Section 562.12, Florida Statutes. In paragraph 6 of the Consent Order, Respondent agreed and acknowledged that revocation of its alcoholic beverage license would be the appropriate sanction for any subsequent administrative action against the Respondent's license alleging failure of the Respondent to comply with the beverage laws.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a final order be entered finding that Respondent committed the offenses alleged in the Administrative Action; that Respondent's alcoholic beverage license number 39-01181 be revoked; and that Respondent be assessed a civil penalty of $1,000 per count for a total of $2,000. DONE AND ENTERED this 16th day of February, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 16th day of February, 2000. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Julius F. Parker, Esquire Pennington, Moore, Wilkerson, Bell and Dunbar, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact On April 26, 1982, the Petitioner Dania Bank, filed a request with the Respondent Department of Business Regulation, Division of Alcoholic Beverages and Tobacco to record a lien holder's interest against alcoholic beverage license 16-15 issued to the Respondent Chula, Inc., doing business as Chalet Ole and Chula Liquors. The lien was created on July 3, 1981, and filed with the Secretary of State on August 10, 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Division of Alcoholic Beverages and Tobacco denying the Petitioner Dania Bank's request to record a lien against alcoholic beverage license number 16-15. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1983. COPIES FURNISHED: Richard E. Whitney, Vice President The Dania Bank 255 East Dania Beach Boulevard Dania, Florida 33004 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact By Stipulation filed September 11, 1986, the parties agreed to findings of fact 1-11. Donna Sawyer filed a preliminary application to participate in the state lottery for liquor license on January 20, 1984, on Department of Business Regulation form No. 747L. On September 18, 1984, Donna Sawyer was notified by Respondent that she had been selected in the lottery held on September 12, 1984, to be eligible to apply for a state quota liquor license. That on or about November 2, 1984, Donna Sawyer, acting through her wholly owned corporation, Sarasota County Liquors, Inc., filed a sworn "application for Alcoholic Beverage License" (Department of Business Regulation Form No. 700L), with the Division of Alcoholic Beverages and Tobacco. That application included a description of a location which was to be the licensed premises. A Personal Questionaire, Department of Business Regulation Form 710L, was also included by Petitioner with said application. The license application was denied by Respondent on March 8, 1985. The grounds for the denial as stated in the denial letter were Petitioner's failure to provide: (1) proof of right of occupancy to the premises Petitioner was seeking to license; (2) verification of financial investment; (3) business name, and (4) sketch of the premises affixed to the application. On April 10, 1985, Sandra Allen, Esquire, acting on behalf of Petitioner, requested an administrative hearing in order to contest the March 8, 1985, denial of the subject license. Joseph Forbes, Esquire, of Gainesville, Florida, was then retained by Petitioner to resolve the denial of the requested license, which was then pending before the Director of the Division of Alcoholic Beverages and Tobacco, as an informal administrative proceeding, pursuant to Section 120.57(2), Florida Statutes. In this capacity, Forbes, among other things filed a Motion for Continuance and Stipulation in this case attached to a June 6, 1985 cover letter. Forbes thereafter reached an agreement in the informal proceeding with Thomas Klein, Esquire, then counsel of record for Respondent, evidenced by letter dated October 1, 1985, which in its relevant portions indicated: This is to continue our telephone conversation of October 1, 1985, in which the following was discussed and agreed upon: Sarasota Liquors - your client will have 45 days from the date of this letter to cure the defects set forth in the March 8, 1985 letter of denial. Please direct your client to respond to the Tallahassee office. In order to rectify the original deficiencies causing the license denial, Petitioner re-filed an Application for Alcoholic Beverage License, Department of Business Regulation Form 700L, including exhibits, with Respondent, on or about November 13, 1985. Petitioner's re-filed license application was denied by Respondent on February 19, 1986, for two reasons: (1) "Application incomplete as applicant does not have right of occupancy to the premises for which she is seeking to license," and (2) "Division is unable to fully investigate applicant's financial documentation." On or about November 4, 1985, while searching for a location to submit as the licensed premises, in the re-filed application of November 13, 1985, Donna Sawyer and Ocie Allen met with Alton Allen at 258 S. Tamiami Trail, Sarasota, Florida, who was an agent for Walter Spector, owner of several retail store spaces at that address. Ocie Allen, acting on behalf of his corporation, Ft. Myers A & T Corporation, entered into a lease for a store at 258 S. Tamiami Trail, Sarasota, Florida. On or about November 4, 1985, Ocie Allen, acting on behalf of his corporation Ft. Myers A & T Corporation, purportedly subleased the premises at 258 S. Tamiami Trail, Sarasota, Florida to Petitioner. That Petitioner had submitted a letter dated November 4, 1984, signed by Jim Irey, as President of Florida Home Equity of Lee County, Inc., which is attached to the November 13, 1985 application, which stated that certain financial support would be available to the subject alcoholic beverage sales contemplated by Petitioner. That as a result of the investigation following the November 13, 1985 application, Respondent was "unable to fully investigate applicant's financial documentation," since Respondent's agents were unable to locate Jim Irey or his company at the address indicated on the November 4, 1984 letter. Based upon the evidence presented, the following additional findings of fact are made: Donna Sawyer's preliminary application to participate in the state lottery for a quota liquor license included instructions to the applicant that it was the first part of a two part application and that the second part would require proof of occupancy for the premises to be licensed. The second part of the application was that license application filed with the Division of Alcoholic Beverages and Tobacco on November 2, 1984, and again on November 13, 1985. As part of the notification that she was eligible to apply for a state quota liquor license, Donna Sawyer was advised that she had 45 days to file a full and complete application and that if she failed to do so, this failure would be deemed as a waiver of her right to file for a new quota liquor license. The letter also advised her that the Division had 180 days from the date of the drawing to act upon her application. The Petitioner's first quota liquor license application was denied on March 8, 1985. March 8, 1985, was within 180 days of the applicable lottery drawing held on September 12, 1984. The agreement of the parties to resolve the March 8, 1985, denial of the subject license evidences an tacit agreement by the parties to waive any applicable time limits existing at that time in order to allow the Petitioner to resubmit a corrected application within 45 days as allowed by the Thomas Klein letter of October 1, 1985. The Division investigated the Petitioner's second application and determined that the applicant did not have a right of occupancy to the premises sought to be licensed, 258 Tamiami Trail, Sarasota, Florida, because Petitioner only had a purported sublease for the subject premises from Ft. Myers A & T Corporation. Ft. Myers A & T Corporation had obtained a lease for the property on November 4, 1985, from Walter Spector, deceased at the time of the administrative hearing. Said lease between Walter Spector, lessor, and Ft. Myers A & T Corporation, lessee, provided that subleases must be approved by the lessor and be in writing. The Petitioner did not produce evidence of written authorization by Walter Spector to allow Ocie Allen or Ft. Myers A & T Corporation, Inc., to sublease the subject premises to the Petitioner or to any other person. The only evidence of such authorization was the hearsay statement by Ocie Allen that Walter Spector had orally given such authorization. Furthermore, Mr. Alton Allen, then agent for Mr. Spector for leasing this property testified he had no knowledge that Mr. Spector was ever informed of a sublease. Therefore it is found that the sublease violated a material provision of the underlying lease from Walter Spector to Ft. Myers A & T Corporation. Mr. Ocie Allen, agent for the Petitioner and Donna Sawyer, testified and it is found that there was no intention for the Petitioner to operate an alcoholic beverage license at the 258 Tamiami Trail location. Petitioner's November 13, 1985, license application was also denied on February 19, 1986, for: Application incomplete as . . . the Division is unable to fully investigate applicant's financial documentation. This denial was due to the Division's agents being unable to verify the availability of financial funding from Florida Home Equity of Lee County, Inc. The Petitioner had submitted a November 9, 1984 letter from that corporation in its November 13, 1985 license application offering certain funding. Upon checking phone directories and making attempted telephone calls to the source named in that letter, the Division was not able to find the named business as source of funding. The Division further investigated Florida Home Equity of Lee County, Inc. as an alleged source of funding by sending an agent, Robert B. Baggett, to the address supplied by the applicant in a November 9, 1984 letter from Florida Home Equity of Lee County, Inc., only to find that no such business was located there and no neighbors knew of a new location. Sandra Allen, Esquire, testified that the source of the funding at the time of the second application was a new company run by the same person who was behind Florida Home Equity of Lee County, Inc., which was named as the source in the November 9, 1984 letter. However, this new company's name and address and verification of continued financial support to the Petitioner could not reasonably be determined by the Division and no evidence was presented that the Division had ever been provided with said new company's name or location prior to the denial of the second license application. Contradictory testimony was presented by Lt. Ewing and Sgt. Mills as to the existence of a policy requiring a "14 day" deficiency notice letter to applicants. It is clear that that policy was not recognized in the office supervised by Sgt. Mills. It was also not established that Lt. Ewing had the authority to set or enunciate policy for the Division.
The Issue 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
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 At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times material hereto, respondent, Cesar J. Reyes, held alcoholic beverage license number 23-05034, series 2-COP, for the premises known as Busy Cafeteria Bar (the "premises"), located at 4601 West Flagler Street, Miami, Dade County, Florida. In November 1993, Special Agent Joe Lopez of the Division of Alcoholic Beverages and Tobacco, together with the assistance of a confidential informant (CI), began an undercover investigation of the premises. Such investigation was predicated on information Special Agent Lopez had received from federal authorities which indicated that narcotics were being sold upon the premises. On December 1, 1993, Special Agent Lopez and the CI entered the licensed premises. While inside the premises, the CI met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On the same occasion, Special Agent Lopez met with respondent, and he also purchased a small plastic package containing 1/2 gram of cocaine for $30.00. 1/ On December 2, 1993, Special Agent Lopez and the CI returned to the licensed premises. While inside the licensed premises, they again met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On December 7, 1993, Special Agent Brian Weiner of the Division of Alcoholic Beverages and Tobacco served respondent with an emergency order suspending his alcoholic beverage license, and placed respondent under arrest for the sale of cocaine. Incident to such arrest, Special Agent Weiner searched respondent's person and discovered six small plastic packages, each containing 1/2 gram of cocaine, in a small box tucked under respondent's waist band.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing Counts 1 and 2 of the notice to show cause, finding respondent guilty of Counts 3, 4, 5 and 6 of the notice to show cause, and revoking respondent's alcoholic beverage license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1993. WILLIAM J. KENDRICK 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 28th day of December 1993.