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, M & W Enterprises of Key West, Inc., held license number 54-00200, series 5COP, authorizing the sale of alcoholic beverages for consumption on and off the premises known as Stick N Stein, located at 1126 C & D Key Plaza, Key West, Florida (hereinafter "the licensed premises"). In October 1996, the Department undertook a beverage surcharge audit of the licensed premises for the period of September 1, 1992, through October 29, 1996.1 At the time, the premises had elected the "sales method"2 of reporting, and the Department proposed to determine whether the monthly reports submitted by the vendor were accurate by application of the "sales depletion method," as prescribed by Rule 61A-4.063(9), Florida Administrative Code. This formula uses beginning inventory, plus purchases for the period, less ending inventory, less spillage allowance, prescribed by Rule 61A-4.063(6), Florida Administrative Code, to ascertain sales for the period. Application of the formula to this vendor was complicated by a number of factors, including the nature of the vendor's business, the vendor's inventory practices, and the vendor's failure to maintain appropriate records. In this regard, the proof demonstrates that the licensed premises includes a liquor store, where alcoholic beverages are sold for consumption off-premises, and a bar area, where alcoholic beverages are sold for consumption on-premises. Alcoholic beverages are purchased for the premises in bulk, and stored in the liquor store or the storeroom (also referred to as the beer room or cooler). As need dictates, alcoholic beverages are transferred from the liquor store or the storeroom to replenish the bar's stock; however, no record is made to reflect this transfer or addition to the bar's inventory. Consequently, there are no records from which one can derive the data needed to drive the Department's formula or, stated otherwise, there are no records from which the quantities of alcoholic beverages sold for consumption on or off the premises may be reliably calculated. Notwithstanding the vendor's failure to maintain appropriate records, the Department agreed to accept the vendor's estimate of the percentage of each class of alcoholic beverage purchased during the audit period that it would attribute to NON-COP (non-consumption on premises) sales, and subtract those volumes from the volumes purchased during the audit period to derive the total gallons available for sale under the formula. Here, the deduction (credit) accorded the vendor for NON-COP sales as a percentage of purchases was, as follows: draft beer, 10 percent; bottle/can beer, 15 percent; wine coolers, 50 percent; wine, 90 percent; and liquor, 70 percent.3 To further drive the formula, the Department did an audit on October 29, 1996, to calculate the vendor's ending inventory. Notably, that audit (Petitioner's Exhibit 4) encompassed only the alcoholic beverages in the bar area, and failed to include an inventory of the alcoholic beverages in the liquor store and storeroom. By letter of June 24, 1997, Respondent was advised of the results of the audit, and the Department's conclusion that it owed $14,960.82, as beverage surcharge, penalties, and interest. Respondent, because the audit did not include the liquor store and storeroom inventory as part of the ending inventory calculation, disputed the results of the audit.4 Given the failing of the first audit, the Department performed an additional audit of Respondent's inventory on August 1, 1997. (Petitioner's Exhibit 3). That audit was restricted to the inventory in the liquor store and the storeroom, and did not include an inventory of the bar area. On August 8, 1997, the Department issued a new retail beverage surcharge audit report for the licensed premises. (Petitioner's Exhibit 2). That report reflected a total tax liability (beverage surcharge, penalties, and interest) of $12,279.76. Notably, the report was based on the August 1, 1997, inventory and not the vendor's inventory at the end of the audit period (October 29, 1996). Moreover, the audit that was used considered only liquor store and storeroom inventory, and omitted bar inventory. Respondent again disputed the results of the audit. Since the report did not apply the vendor's inventory at the end of the audit period (October 29, 1996) to drive the formula, the result reached could not be an accurate reflection of sales or surcharge liability for the audit period. Moreover, by omitting bar inventory as a component of ending inventory, the report overstated sales, and, therefore, overstated surcharge liability. Consequently, as Respondent argues, the audit does not provide a reliable indication of what, if any, surcharge is due.
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 26th day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1998.
The Issue Whether Minnie Lee Cooper did sell or cause to be sold or delivered intoxicating liquors, wines or beer, to wit: gin, in Santa Rosa County, on or about June 6, 1975.
Findings Of Fact A Notice to Show Cause was issued by the Division of Beverage charging: "On or about June 4, 1975, you, Minnie Lee Cooper, licensed under the beverage laws, and/or your agent, servant or employee, to wit; Minnie Lee Cooper, did sell or cause to be sold or delivered, intoxicating liquors, wines or beer, to wit; gin, in Santa Rosa County, that which has voted against the sale of such intoxicating liquors, wines or beer, contrary to F.S. 568.02." The Respondent and Frankie Lee Johns appeared as witnesses for Respondent and Beverage Officer Cobb appeared as witness for the Petitioner. The beverage agent, Officer Cobb, testified that he and a confidential informer entered the premises of the Paradise Inn on June 4, 1975, and were there for a period of time between approximately 9:00 p.m. and 9:45 p.m. They requested Minnie Lee Cooper to sell intoxicating beverages to them. Minnie Lee Cooper said that she had nothing but gin and when informed by Officer Cobb that that was satisfactory, she entered a room adjacent to the main part of the business operating as the Paradise Inn, sold gin to the beverage agent in a white paper cup and gave him two additional paper cups. The officer testified that the confidential informer was present with him at all times and was observing him and was within a few feet of him at the time of the sale of the gin. After the gin was poured in the cup, Minnie Lee Cooper said, "That will be $2.50," which the beverage officer testified that he paid. Petitioner filed as evidence two marked bottles containing a clear liquid known as gin and three paper cups. The owner of the Paradise Inn, Frankie Lee Johns, testified that she was on the premises of Paradise Inn at about 9:00 p.m., but did not see the beverage officer or the confidential informer. The Respondent, Minnie Lee Cooper, testified that the incident did not happen and that no intoxicating liquors were sold. The Respondent introduced a witness by the name of Floyd who testified he did not see a white person in the Paradise Inn at the time of the alleged incident; however, he testified that he was tired and "I laid down and kicked up my feet," so it appears said witness may have been asleep during the time of the alleged sale. This Hearing Officer observed the demeanor of the witnesses of the Petitioner and the Respondent and although the testimony of the Respondent was that a sale did not take place, it is the opinion of this Hearing Officer that such sale did take place, and the two small bottles containing gin which were testified to have been the same liquid sold on the premises of Paradise Inn, was in fact gin and that the three paper cups entered as part of the evidence were paper cups provided by the Respondent, Minnie Lee Cooper, all in exchange for $2.50. From the foregoing findings of fact it is the finding of the Hearing Officer that the Respondent, Minnie Lee Cooper, did sell an intoxicating beverage, to-wit: gin, in the county of Santa Rosa, Florida contrary to Section 568.02, Florida Statutes. A civil penalty may be assessed against the Respondent or the license nay be suspended or revoked under Section 561.29, Florida Statutes. It is therefore recommended that License No. 67-24,1-COP issued to Cooper Tavern, Limit Street, Bagdad, Florida and Minnie Lee Cooper be revoked. DONE and ENTERED this 20th day of May, 1976, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Staff Attorney Division of Beverage The Johns Building Tallahassee, Florida 32304 Barry Z. Rhodes, Esquire P.O. Box 810 Milton, Florida 32570 Charles Nuzum, Director Division of Beverage Department of Business Regulation The Johns Building Tallahassee, Florida 32304
The Issue Whether Respondent illegally trafficked in or fraudulently possessed United States Department of Agriculture (U.S.D.A.) food coupons (hereinafter referred to as food coupons) in a manner not authorized by law, in violation of Title 7, Section 2024(b)(1), United States Code, as alleged in the Administrative Action filed by Petitioner against Respondent on July 2, 1999, and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to the provisions of Chapter 561, Florida Statutes. At all times pertinent to this proceeding, Respondent, a corporation, was the owner and holder of alcoholic beverage license number 16-12183, Series 2-APS, authorizing it to sell alcoholic beverages on its premises located at 2162 Northwest 6th Street, Fort Lauderdale, Florida (hereinafter referred to as Respondent's premises). At all times pertinent to this proceeding, Salaheldin Elkhalil was the president and owner of Respondent. At all times pertinent to this proceeding, Hasim Alkalil was the manger of the Respondent's premises and Nageed Ibrahim was an employee of the Respondent who worked at the subject premises. On December 20, 23, and 27, 1996, Ella M. Davis, an investigative operative working under the direct supervision of Rene Berlingeri, a Senior Investigator employed by U.S.D.A., entered Respondent's premises for the purpose of conducting an undercover investigation. On these dates in December, 1996, Mr. Berlingeri did not enter Respondent's premises and he could not see what was transpiring inside those premises. On each of these dates, Mr. Berlingeri gave Ms. Davis food coupons of varying value before she entered the premises and he took food items and money from her immediately after she exited the premises. On each occasion, Ms. Davis reported to Mr. Berlingeri what had transpired inside the premises, including what had happened with the food coupons and how she had come into possession of the food items and money. Ms. Davis did not testify at the formal hearing. As a result of his investigation, Mr. Berlingeri had good cause to believe that further investigation of Respondent's business was warranted. Following his investigation in December, 1996, Mr. Berlingeri completed an investigative report, which he turned over to the U.S.D.A.'s Office of Inspector General, located in Memphis, Tennessee. In February 1997, Carol Bennett, a special agent employed by the U.S.D.A.'s Office of Inspector General, began an investigation with the assistance of Mr. Berlingeri. On November 11, 1997, Ms. Bennett directed an investigative operative to Respondent's premises. The investigative operative tried to exchange food coupons for cash with an employee, but the unidentified employee refused to participate in the transaction. On January 7, 1998, Terry Thomas, an investigative operative working under the direct supervision of Ms. Bennett, entered Respondent's premises with $230.00 worth of food coupons. At that time, Mr. Ibrahim purchased from Mr. Thomas $230.00 in food coupons for $170.00 in cash. On January 14, 1998, Mr. Thomas, working under the direct supervision of Ms. Bennett, entered Respondent's premises with $360.00 worth of food coupons. At that time, an unidentified male purchased from Mr. Thomas $360.00 in food coupons for $210.00 in cash. On February 19, 1998, Mr. Thomas, working under the direct supervision of Ms. Bennett, entered Respondent's premises with $1,000.00 worth of food coupons. At that time, Mr. Alkalil purchased from Mr. Thomas $1,000.00 in food coupons for $500.00 in cash. On March 2, 1998, Mr. Thomas, working under the direct supervision of Ms. Bennett, entered Respondent's premises with $1,000.00 worth of food coupons. At that time, Mr. Alkalil purchased from Mr. Thomas $1,000.00 in food coupons for $500.00 in cash. On March 17, 1998, Mr. Thomas, working under the direct supervision of Ms. Bennett, entered Respondent's premises with $1,500.00 worth of food coupons. At that time, Mr. Alkalil purchased from Mr. Thomas $1,500.00 in food coupons for $750.00 in cash. On April 3, 1998, Mr. Thomas, working under the direct supervision of Ms. Bennett, entered Respondent's premises with $1,000.00 worth of food coupons. At that time, Mr. Alkalil purchased from Mr. Thomas $1,000.00 in food coupons for $500.00 in cash. Mr. Alkalil and Mr. Ibrahim were convicted of illegally trafficking in food coupons, and Respondent's authorization to accept food coupons was revoked by the U.S.D.A. Mr. Elkhalil was not arrested or charged for trafficking in food coupons. Mr. Elkhalil acknowledged that Mr. Alkalil was the manager of the premises and that Mr. Ibrahim was an employee. Mr. Elkhalil asserted that he did not know of their wrongdoing while it was occurring.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law contained herein. It is further RECOMMENDED that the final order revoke Respondent's alcoholic beverage license number 16-12183, Series 2-APS. DONE AND ENTERED this 11th day of July, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of July, 2000. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Salaheldin Elkhalil, President United Brothers, Inc. 7001 Northwest 20th Court Sunrise, Florida 33313 Captain Allen F. Nash Division of Alcoholic Beverages and Tobacco, District 9 Department of Business and Professional Regulation 5080 Coconut Creek Parkway, Suite C Margate, Florida 33063 Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At about half past ten o'clock on the night of December 14, 1977, Daniel James Cobb, than a beverage officer under the supervision of Lieutenant Robert E. Baxley, arrived at the Mezzanine Lounge at the corner of Intendencia and South Palafox Streets in Pensacola. He entered through the south door, went upstairs, and sat down at a table. An Asain woman who said her name was Charlene asked him if he wanted a drink and asked him to buy a drink for her, which he did. Subsequently, he bought a bottle of champagne for $18.00, at her request. Other customers at other tables also bought drinks for this woman, who went from table to table, occasionally stopping to chat with Officer Cobb. She asked him if he wanted a "chick," offered her own sexual services for $50.00, and said that he could have two girls for $100.00. Officer Cobb left the premises alone about midnight. At approximately quarter past eight on the night of January 5, 1978, Officer Cobb returned to the Mezzanine Lounge. Again he went upstairs and sat at a table. After he had ordered a drink for himself, he bought a drink for a dancer who sat down at his table. A second dancer, a blonde known professionally as Gigi, came over and offered to dance "for tips." Gigi, who is also known as Christine Haney Hampton, performed an impromptu dance after Officer Cobb gave her $5.00. At Gigi's insistence, he then bought a bottle of champagne for $30.00, which Gigi opened. When she did, the cork ricocheted off the ceiling and hit Lieutenant Baxley, who had taken a seat at a nearby table. Lieutenant Baxley had arrived 15 or 30 minutes after Officer Cobb, and was drinking bourbon, when he was hit by the cork. Maintaining the pretense that they were strangers, Officer Cob invited Lieutenant Baxley to join him for champagne. Lieutenant Baxley accepted, struck up a conversation with Gigi, then left with Gigi for another table. Shortly thereafter Officer Cobb left the premises alone. Gigi said to Lieutenant Baxley, "If you buy me a bottle of champagne, we'll have a party." She told him she would do anything for $100.00. Lieutenant Baxley purchased a bottle of champagne for $30.00, and he also bought three flowers for Gigi for $2.00, at her request. At one point on the night of January 5, 1978, respondent Julie Schofield came upstairs. When asked, she said Gigi could not leave early. Respondents purchased the Mezzanine Lounge from a Mr. Aliberti some three years ago. At the time it was a topless bar. For the first three months they owned it, respondents did not operate it as a topless bar, but they "reverted." The dancers were topless on the nights of December 14, 1977, and January 5, 1978. Respondent Julie Schofield spent five nights a week at the Mezzanine Lounge during that period. Respondent Frank Joseph Schofield visited the premises daily. After Gigi had worked for respondents as a dancer for two or three months, respondents entered into an agreement with her husband, Harry Hampton, who undertook the management of the upstairs portion of the licensed premises, called the "Hideaway Lounge area." Mr. Schofield described the agreement in these words: "[M]y mark up percentage is 600 percent or as close as possible to it. any additional income may be disbursed as he sees fit. At the even- ings close Mr. Hampton gives me a sheet showing total liquor and bar sales for the evening. The cash for the evening is also turned in minus whatever cash disburs[e]ments were made. Most of the excess profit is derived from cocktail sales at 1000 percent mark up and bonus money is handed out from that by Mr. Hampton as determined by the number of drinks they had. This is approximately 30 percent of the drink price." Petitioner's exhibit No. 2. The more drinks the girls sold, the more money they made. Respondents terminated this agreement after hearing that Mr. Hampton was inviting bar patrons elsewhere for "exotic treats" and "personalized service." Respondents made no investigation of Mr. Hampton before hiring him. On January 18, 1978, Officer Cob and Lieutenant Baxley arrested Christine Hampton and the Asian woman who had identified herself as Charlene, who is also known as Phung Kim Holland. Although both women were charged criminally, neither was convicted. Ms. Holland was acquitted after trial by jury; Ms. Hampton pleaded nolo contendere, but adjudication was withheld. After the arrests, respondents "fired a few people." In addition, respondents posted a sign on a wall urging patrons to report the solicitation of drinks to the management and placed "table tents" imprinted with the same message on various tables; and they also installed more lights on the licensed premises. At one point, Mr. Schofield asked some of the employees of the Mezzanine Lounge not to solicit for prostitution. Petitioner instituted the present proceedings by serving respondents with a notice to show cause on March 17, 1978. An informal conference on March 24, 1978, was attended by Mr. Schofield and Lieutenant Baxley. Respondents were not represented by counsel at the informal conference. On May 23, 1978, respondents' counsel wrote Lieutenant Baxley suggesting that the notice to show cause be dismissed "[i]n light of the outcome of the criminal cases." Respondents' exhibit No. 1. On August 24, 1978, the petitioner referred the matter to the Division of Administrative Hearings for formal hearing, even though respondents have never made demand for formal hearing. On August 28, 1978, notice of hearing issued setting the final hearing for September 29, 1978, but the hearing was continued on application of respondents' counsel, according to the file. The final hearing was next noticed for December 13, 1979. On December 13, 1979, according to the file, counsel for petitioner sought a continuance on grounds of Lieutenant Baxley's illness and represented that counsel for respondents had no objection to the continuance; and the final hearing was again continued. Also on December 13, 1978, respondents' counsel (who had previously corresponded with counsel for petitioner, respondents' exhibit No. 3) wrote a letter to Lieutenant Baxley "objecting to any kind of hearing . . . because so much time has transpired [sic] since the original offense." Respondents' exhibit No. 2. Respondents' counsel did not send copies of this letter either to petitioner's counsel or to the hearing officer.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that petitioner impose a civil penalty against respondents' license in the amount of three thousand dollars ($3,000.00). DONE AND ENTERED this 30th day of May 1980 in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1980. COPIES FURNISHED: Daniel C. Brown, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Robert G. Kerrigan, Esquire 224 East Government Street Pensacola, Florida 32501
The Issue Whether the Respondent, Mekishia M. Rolle (Respondent), committed the acts alleged, and should be disciplined as outlined in the Amended Notice of Specific Charges dated April 30, 2004.
Findings Of Fact The Petitioner is the state entity charged with the responsibility of operating and supervising the public schools within the Miami-Dade County School District. As such it is responsible for all personnel matters for those persons employed by the School District. At all times material to the allegations of this case, the Respondent was an employee of the School District. The Respondent was responsible for the supervision of the satellite cafeteria located at Martin Luther King Elementary School. The Respondent was designated a food service satellite assistant. That designation meant the Respondent was to supervise the cafeteria workers assigned to the satellite facility. At all times material to this case, there were four food service workers to be supervised by the Respondent. Some of the cafeteria workers were required to serve on the cash register collecting monies from the students. Some of the workers did not handle money. Martin Luther King Elementary School (MLK) was designated a “satellite cafeteria” because it received prepared foods from another school (Holmes Elementary) for service to the MLK students. The kitchen facility at MLK was for service of the foods, not preparation. Typically, the prepared foods were transported from the main kitchen where they were prepared (at Holmes Elementary) to the MLK cafeteria. Prepackaged snacks that were placed on the service line separate from the a la carte items were also transported to the MLK site from Holmes Elementary. Students were free to purchase any item from the food service line. Snacks identified in this record as “Combos” were a popular item on the service line. Students wishing to purchase Combos typically paid cash to the cafeteria worker at the cash register and received the item. As to the prepared food, typically a driver would deliver the food from Holmes Elementary during the morning hours so that the cafeteria workers at MLK could ready the service line. As to the prepackaged snack items, typically the satellite assistant, the Respondent, would pick up the snack items at Holmes Elementary and transport them to MLK. A sign- out sheet posted at the pantry closet at Holmes Elementary was to track the snack items Respondent removed. For the pertinent time at issue in this case, the sign-out sheet(s) is missing. According to Ms. Solomon, the food service manager at Holmes who was also the Respondent’s supervisor, the last person with the snack sign-out sheet was the Respondent. Ms. Solomon stated the Respondent borrowed the sign-out sheet to make a copy of it. It has not been located since. This case came to the Petitioner’s attention because of an internal audit of the MLK satellite cafeteria. It arose because food service workers who worked the cash register were uncomfortable with the procedure the Respondent instituted. While Ms. Inman was assigned to the cash register, the Respondent instructed her to stop ringing-up the snack sales. Under normal procedure, when a student seeks to purchase a snack item, the cashier is supposed to enter the item on the register, put the money in the drawer when it opens, offer change if appropriate, push the “next” button, and close the register. Each transaction is then entered into the system. Instead of the foregoing system, the Respondent told Ms. Inman to just keep the drawer open between snack sales. Ms. Inman was to sell the snack, take the money, make change if necessary, but was to leave the drawer open. Similarly, when Ms. Preston replaced Ms. Inman on the cash register, the Respondent directed Ms. Preston to do the same. That is, to make the snack sales but to keep the drawer open. The credible evidence from all four MLK cafeteria workers supports the finding that the Respondent directed the cashier to not ring-up snack sales. Both cashiers were persuasive and credible that the Respondent had given them that directive. The other two workers (who were not cashiers) also heard Respondent direct the cashiers not to ring up the snack sales. The situation was such that Ms. Preston became concerned about the “open drawer” directive. She confided in a teacher at the school who took the matter to an assistant principal. Thus launched the inquiry in to the satellite cafeteria. The Petitioner’s auditing department attempted to perform an audit of the snack sales. There was conflicting evidence regarding the number of snack products that were removed from the Holmes Elementary pantry. Ms. Solomon could not confirm the number and the sign out sheet was not available. It is certain that the Combos were not adequately tracked from the Holmes Elementary through sales at MLK. When questioned during the audit of the Combo sales, Ms. Solomon stated that she believed the Respondent took 36 Combo packages per day to MLK. If so, after subtracting the Combos remaining on the serving line, the sales total could have been mathematically calculated. When the auditor asked the Respondent to explain why the number of Combos remaining on the serving line plus the ones sold did not total the number allegedly taken from Holmes Elementary, she could provide no information. During the audit the Respondent did not deny that 36 Combos per day were taken from Holmes Elementary to be sold at MLK. A second inquiry into the MLK cafeteria questioned the procedure for counting cash receipts at the end of the day. According to School Board policy, the cafeteria assistant (in this case the Respondent) was not supposed to handle the cash taken into the register each day. Instead, two other cafeteria employees were to take the money, count it, prepare a deposit slip, and have the assistant sign off on the deposit. The actual handling of the funds rests with the verifying employees. In this case, the Respondent routinely took the cash from the register, counted it herself, prepared the deposit slip, and had other cafeteria workers sign off on it as if the correct procedure had been followed. More critical to this issue, however, is the fact that the Respondent had been directed specifically not to handle monies. In light of a past matter, not at issue in this cause, the Respondent knew or should have known she was strictly prohibited from handling the cash coming into the MLK cafeteria. She violated the terms of the directive given to her by taking the monies to the rear of the cafeteria and counting it. At a conference-for-the-record, all of the issues described above were discussed with the Respondent. The Respondent was fully apprised of all of the factual allegations that support the instant action. Moreover, the Respondent was provided with an opportunity to explain any of the factual matters. The Respondent has argued that the subordinate cafeteria workers were somehow unhappy with Respondent becoming their supervisor. The Respondent believes that the workers had, in effect, run their own cafeteria for so long that her supervision efforts would be rejected. Such argument is not supported by the weight of credible evidence in this cause. Secondly, the Respondent argued that the subordinate cafeteria workers were unhappy because she stopped a covered dish program they had been running. The covered-dish program worked as follows: the cafeteria workers brought in food cooked at home that was then shared with MLK staff, who contributed to their cash kitty. The weight of the credible evidence discounts any dissatisfaction among the cafeteria workers when the covered dish program was halted. Again, the Respondent’s effort to discredit the testimony of the workers based upon this claim was without merit. The Respondent offered no credible explanation for what happened to the snack sign-out sheet, for why she instructed the cashiers to keep the drawer open, or for why she handled monies after she had been told not to do so. There were sufficient cafeteria workers available to assist the Respondent. Had she not had sufficient numbers, her supervisor, Ms. Solomon, could easily make someone available from Holmes Elementary to do the work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision to suspend and dismiss the Respondent from her employment with the School District be affirmed. S DONE AND ENTERED this 22nd day of April, 2005, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 22nd day of April, 2005. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Honorable John L. Winn Commissioner of Education 1244 Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Marci A. R. Rosenthal, Esquire Miami-Dade County School Board Suite 400 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact At present Tony's Fish Market, Inc. t/a Tony's Fish Market, is the holder of license no. 23-1624-SRX, series 4-COP held with the State of Florida, Division of Beverage. Prior to September 1, 1974, Armand Cerami owned 50 shares of stock in Tony's Fish Market, Inc., which represented a 50 percent interest in that corporation. In addition, Armand Cerami held 50 shares of stock in Tony's Fish Market of Ft. Lauderdale, Inc., representing a 50 percent interest in that corporation and was the holder of 50 shares of Tony's Sweet Enterprises, Inc., which represented a 50 percent interest in that corporation. During the time period of September 1, 1974, Armand Cerami had been charged with violation of the Internal Revenue Laws of the United States, under a federal indictment no. 74-407-CR-JE, in the United States District Court for the Southern District of Florida. This charge was placed against Cerami for Internal Revenue Law Violations which allegedly took place on tax returns on the tax year 1968. In contemplation of a plea of guilty which Cerami intended to enter in the above cited case, he entered into a contract for purchase and sale of the corporate securities in the aforementioned corporations. Petitioner's Exhibit #2, admitted into evidence is a copy of the contract for purchase and sale of corporate securities, which was entered into between Armand Cerami and Pamela Ann Cerami, his wife, on September 1, 1974. The terms of the contract were that Pamela Ann Cerami would pay Armand Cerami $20,000 cash and would give to Armand Cerami a promissory note payable in the amount of $200,000, in ten equal installments of principal and interest at 6-1/2 percent payable on the anniversary date of the contract. On September 20, 1974, the Board of Directors of the three subject corporations accepted the resignation of Armand Cerami as the Secretary-Treasurer of those corporations, and elected Pamela Cerami as Secretary-Treasurer in Armand Cerami's stead. Those Board of Directors were Tony Sweet, Frank Sweet and Armand Cerami. Armand Cerami returned to federal court on October 18, 1974, and entered a plea of guilty to counts one and five of the aforementioned indictment, for which he was sentenced to three year on each count to run concurrently, but was given a split sentence of 6 months time in confinement, thereafter to be placed on a probationary period for 2-1/2 years. A copy of the judgement and commitment is Petitioner's Exhibit #1, admitted into evidence. They are felony offenses. Subsequent to his release from prison, Armand Cerami served as a co- manager and host of the licensed premises, Tony's Fish Market, located at 1900 N. Bay Causeway, North Bay Village, Florida, license no. 23-1624-SRX, series 4- COP and in the same capacity at Tony's Fish Market of Ft. Lauderdale, located at 1819 S.E. 17th Street, Ft. Lauderdale, Florida, license no. 16-1320-SRX, series 4-COP. He remained in this capacity until September 30, 1976, when a change in Section 562.13(3)(a), F.S. prohibited convicted felons from being managers of the licensed premises, licensed by the State of Florida, Division of Beverage. The change in the law took effect on October 1, 1976. At that point two separate individuals were hired as managers of the subject licensed premises. Armand Cerami remained in the position as host of those licensed premises, up to and including the date of the hearing. Although this title and this position was held by Armand Cerami, on December 16, 1976, while conducting a routine visit, beverage officer, William Valentine was told by Frank Sweet, a Director in the subject corporations, that Frank Sweet was in charge of the kitchen of the Tony's Fish Market of Ft. Lauderdale and that Armand Cerami was the real manager, ran the restaurant and was responsible for hiring and firing of employees. Pamela Ann Cerami was not shown to have any active interest in the management of the licensed premises. Pamela Ann Cerami as the Secretary-Treasurer in the three corporations which she purchased shares in, does not draw a salary from the operation of the two restaurants. Her background and financial involvement in the licensed premises, can be traced to certain trusts in her name and a certain gift from her husband, Armand Cerami. The joint composite exhibit #1, admitted into evidence in the hearing, shows that Pamela Ann Cerami, at one time Pamela Crumly, was a beneficiary of the estates of Gail Crumly and Mildred Crumly, her grandparents. Certain distributions of money were made to Pamela Ann Cerami from those estates. On April 3, 1970, she received $6,093.94; on July 3, 1970, she received $121.88; on October 5, 1970, she received $182.82; and on December 31, 1970, she received $925.65, which represented a partial distribution of her 1/2 interest in the Gail Crumly estate. As of April 1, 1970, she had been given $5,292.59 as a portion of the 1/3 distribution of her share in the estate of Mildred Crumly. The total value of her share in that estate being $16,157.02, and the conditions of her rights to the estate being set forth in the will of Mildred Crumly which is found in the joint composite exhibit #1. Pamela Ann Cerami had worked as an airline stewardess prior to her marriage to Armand Cerami and had certain funds from her employment in that capacity. Other funds of the marriage include a certificate of deposit in the Bank of Nova Scotia in Nassau, Bahamas in the amount of $18,000, at 8-1/4 percent interest, as deposited May 20, 1970 with a maturity of November 20, 1970. This certificate of deposit was in the name of Armand D. Cerami and/or Pamela Crumly now Pamela Ann Cerami. The interest received on that certificate of deposit was redeposited along with the principal and a second certificate of deposit was purchased on May 23, 1974 in the amount of $23,480.74, to become mature on November 25, 1974. This certificate was withdrawn on October 18, 1974 and the receipt of 10-1/4 percent interest was paid. The amount of interest thereby being $975.89. Copies of the above mentioned certificates of deposit may be found as part of the joint composite exhibit #1 admitted into evidence. Continuing an examination of the financial circumstances of Pamela Cerami and Armand Cerami, there is found a warranty deed from Willard H. Keland to Pamela Ann Cerami for certain real estate in Dade County, Florida, for which Pamela Ann Cerami paid Willard H. Keland the amount of $158,000. This deed is found as Petitioner's exhibit #4 admitted into evidence and was recorded on January 11, 1974. On that same date a closing was held on the property. Petitioner's Exhibit #5, admitted into evidence is a copy of the closing statement. Conditions of the closing was a cash deposit in the amount of $15,800 and $69,251.64 to close. A first mortgage in the amount of $67,500 and interest of $1,028.75 was given to the Miami Beach First National Bank. The $158,000 paid for this estate corresponds to a gift which was given by Armand Cerami to Pamela Ann Cerami in the amount of $158,000 as shown in the gift tax return, a copy of which is Petitioner's Exhibit #6, admitted into evidence. The effective date of the gift is established in the gift tax return as February, 1974. The federal income tax return filed by Armand Cerami for the year 1974, shows the sale of the stock of the three corporations. That income tax return would further show the $20,000 installment sale payment, a portion of which was treated as income to Armand Cerami. Finally, that return shows $13,000 of interest which was treated as income to Armand Cerami. On October 1, 1975, Pamela Ann Cerami gave a first mortgage on the property that she had paid $158,000 for, this mortgage being given to Bob Erra, as trustee. A copy of the mortgage deed is found a Petitioner's Exhibit #9, admitted into evidence. The amount of the mortgage was $40,000 and the proceeds of the mortgage amount were distributed as $7,000 to Pamela Cerami and $33,000 to Armand Cerami. These distributions were placed as time certificates of deposit with the Pan American Bank of West Dade, copies of which are found as Petitioner's composite exhibit #8. The amount of interest returnable on the time certificate of deposit held by Armand Cerami is shown in his 1975 federal income tax return. Tony's Fish Market, Inc. t/a Tony's Fish Market, made application with the State of Florida, Division of Beverage, to change Armand Cerami as Secretary-Treasurer of Tony's Fish Market Inc. and substitute Pamela Cerami as Secretary-Treasurer of that corporation and to transfer the stock for ownership in the licensee corporation from Armand Cerami to Pamela Cerami. This change of officer and transfer of stock ownership involves the license no. 23-1624-SRX, Series 4-COP. This application was denied by letter of June 16, 1975, from the Director of the Division of Beverage. Subsequent to the sale of the stock and the removal of Armand Cerami and the substitution of Pamela Cerami as the Secretary-Treasurer of the aforementioned corporations, an application was made with the State of Florida, Division of Beverage to transfer the ownership of the license of Tony's Fish Market, Inc. to Tony's Fish Market, Inc. and Tony's Sweet Enterprises, Inc. In addition application was made to chance the trade name of the restaurant from Tony's Fish Market to Tony's Fish Market Restaurant. This application involved the same license no. 23-1624-SRX, series 4-COP. This latter application for transfer of the license and the change of the trade name was denied by a letter of the Director of the Division of Beverage dated August 21, 1975. In fact, Armand Cerami had been convicted of a felony, and is interested in an indirect way in the licensed premises.
Recommendation It is recommended that the applications to change the officer, transfer the stock ownership, transfer the license, and change the trade name, in license no, 23-1624-SRX, series 4-COP, set forth in this hearing be denied. DONE AND ENTERED this 24th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Division of Beverage The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Tobias Simon, Esquire 1492 S. Miami Avenue Suite 208 Miami, Florida 33130 Sy Chadroff, Esquire Suite 2806 120 Biscayne Boulevard North Miami, Florida 33132
