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
The Issue The issues in this case are whether Respondent owes an additional surcharge tax liability on the sale of alcoholic beverages and, if so, how much and what penalties should be imposed.
Findings Of Fact Respondent is licensed by Petitioner as an alcoholic beverage vendor. Since January 1982, Respondent has held a 4COP license, which permits him to operate a package store, in which beer, wine, and liquor are sold for consumption off premises, and a bar, in which these alcoholic beverages are sold for consumption on the premises. Respondent sells beer, wine, and liquor for consumption on and off premises at a place of business known as Big Still Liquors, which is located at 1042 N. Tamiami Trail, North Ft. Myers. The Legislature introduced the surcharge in 1990. By Form DBR 44-005E, which is called "Election of Surcharge Payment Method and Certified Inventory Report," Respondent elected an accounting method by which to track and report sales of alcoholic beverages subject to the surcharge. On July 9, 1990, Respondent checked the box on the form that states: "I hereby permanently elect to pay future surcharges based upon purchases." The other alternative on the form is the sales method, in which the surcharge is calculated directly from retail sales. The sales method requires that the vendor record at retail the gallonage, as well as sales price. Also, the vendor must distinguish among beer, wine, and liquor sold at retail. Like most vendors, however, Respondent records sales by sales price, not volume. The issues in this case arise out of two factors. First, the surcharge applies to volume of alcoholic beverages, not the sales price or purchase cost. As noted above, Respondent's sales records are expressed in dollars. Second, the surcharge applies to alcoholic beverages sold for consumption on premises, not to package sales. Although purchases from wholesalers can easily be determined in terms of volumes, Respondent purchases all alcoholic beverages through the package store and does not purchase alcoholic beverages separately for the bar. Thus, factual issues arise in determining the volume of beer, wine, and liquor sold through the bar. Even though a vendor elects the purchase method, rather than the sales method, Petitioner must calculate the volume of alcoholic beverages sold at retail. Petitioner has devised a formula for this purpose. The audit in the present case took place at the start of 1993 and covered July 1990 through December 1992. The auditor obtained the invoices of the wholesale distributors that sold beer, wine, and liquor to Respondent during December 1992, January 1993, and February 1993. From these invoices, the auditor determined Respondent's cost of goods sold for these three months. The auditor then estimated the markup on the alcoholic beverages. For liquor, the auditor asked Respondent's counterperson the amount of markup for larger bottles and smaller bottles. The percentage markups were 25 percent and 35 percent, respectively. Recording the sales prices of two smaller items and two larger items, the auditor then calculated the actual markup and found that these estimates were quite accurate. The auditor next averaged the markup to 30 percent. It is unclear whether he attempted to estimate the relative proportion of larger items to smaller items. It is clear that this markup applies to liquor and possibly to wine, but not to beer, where the markup is much less. The auditor then found the breakdown between package store sales and bar sales for December 1992 through February 1993. Expressed as a percentage of total sales, package sales accounted for 51.1 percent, 61.3 percent, and 49.3 percent for the three months, respectively. The auditor averaged these figures and determined that 53.9 percent of all Big Still sales were through the package store. Next, the auditor applied the 53.9 percent factor to the total purchases from wholesale distributors during the 30-month audit period. After a reduction to reflect the 30 percent markup, the auditor calculated the package- store factor, which is deducted from total volume to yield the residual volume of beer, wine, and liquor, which is presumed to have been sold through the bar. The lower the markup, the higher the package-sale factor, which is to the vendor's advantage as the package-sale factor is a deduction because it is not subject to the surcharge. Numerous questions arise in the application of Petitioner's formula in this case. Questions include the reasonableness of the methods of estimating markup and differentiating between package and bar sales. In the absence of records from Respondent, however, Petitioner's approach would prevail. However, Respondent has separately accounted for bar and package store sales for years. Motivated by a desire to reduce employee pilferage, Respondent has required employees to record all transfers of beer, wine, and liquor from the package store to the bar. To ensure compliance, Respondent has also required that all empties be returned to the package store in order to monitor bar sales. Respondent reported and paid the surcharge in accordance with the volumes of alcoholic beverages reflected on its internal records. There is no surcharge deficiency.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Administrative Action against Respondent. ENTERED on November 29, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on November 29, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-3: adopted or adopted in substance. 4-12: rejected as subordinate. 13-14 (first sentence): rejected as recitation of evidence. 14 (remainder)-15: adopted or adopted in substance. 16-18: rejected as recitation of evidence. 19-25: adopted or adopted in substance; provided, however, Petitioner failed to prove that the result was more accurate than the result produced by Respondent. 26: rejected as recitation of evidence. 27-30: adopted or adopted in substance. 31-34: rejected as recitation of evidence and subordinate. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as irrelevant. 4: rejected as repetitious. 5-6: adopted or adopted in substance. 7-8: rejected as irrelevant. 9: adopted or adopted in substance. 10-end: rejected as subordinate, repetitious, recitation of evidence, irrelevant, not findings of fact, and not in compliance with order of hearing officer requiring numbered paragraphs with no more than four sentences per paragraph. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Richard D. Courtemanche, Jr. Senior Attorney Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 N. Monroe St. Tallahassee, FL 32399-1007 Harold M. Stevens Harold M. Stevens, P.A. P.O. Drawer 1440 Ft. Myers, FL 33902
Findings Of Fact At all times material hereto, Respondent, Giraldo Gonzalez, d/b/a LaGoma Restaurant, held alcoholic beverage license number 23-03475, series 2- COP, for the premises known as LaGoma Restaurant, 9550 N.W. South River Drive, Miami, Dade County, Florida. On May 30, 1986, Petitioner, Division of Alcoholic Beverages and Tobacco (DABT), following a complaint from another agency, began a narcotics investigation at the licensed premises. On that date, DABT Investigators Carlos Baixauli and Hector Garcia, operating under cover, entered the licensed premises and seated themselves at the bar. During the course of their visit they observed the on-duty bartender, Annie, deliver money to a male patron and receive from him a matchbook containing a small plastic packet of white powder. Annie subsequently delivered the matchbook to an unidentified male who was standing outside the front door of the premises. On June 3, 1986, Investigators Baixauli and Garcia returned to the licensed premises and again seated themselves at the bar. Investigator Garcia asked the on-duty bartender, Mindy, if she could get him some "perico" (Spanish slang for cocaine) Mindy subsequently approached Investigator Garcia and, sitting on his lap, pressed a small plastic bag of cocaine into his hand. Garcia paid Mindy $50.00 for the substance. 1/ On June 4, 1986, Investigators Baixauli and Garcia returned to the licensed premises. As they seated themselves at the bar, Investigator Garcia observed two patrons playing the video poker machine and shortly thereafter saw Respondent open the machine, erase the accumulated points, and pay the patrons and unknown quantity of money from the cash register. Later, while seated at the bar, Investigator Garcia engaged the on-duty bartender, Mindy, in conversation. Mindy placed a napkin on the bar in front of Garcia, poured cocaine onto it from a plastic package she had removed from her pocket, and invited Garcia to try some "perico". At that time there were a number of patrons, including a family with small children, seated proximate to Garcia. The investigators went to the bathroom and secured the cocaine in an evidence bag. Upon their return from the bathroom, the investigators heard screaming and arguing near the bar. They observed a male patron approach another male patron, who was carrying a gym bag which he claimed contained a shotgun, and demand that he put the gun away or use it. Respondent attempted to quell the disturbance; however, the patron with the bag swung it against the other patron's head, causing a severe cut and profuse bleeding. As the two patrons wrestled to the floor among broken bottles and glass, Respondent picked up the gym bag and hid it in the kitchen. After the fight broke up, Respondent's employees immediately cleaned up the premises. When the police arrived to investigate the disturbance they found no evidence of the mayhem that had occurred, and were assured by Respondent that only a miner altercation had taken place. Contrary to Respondent's assurances, a real donnybrook had occurred, and the patron struck with the gym bag had suffered severe injuries and was, at that moment, in the hospital. After the police left, another on-duty bartender, Debra (Mindy's sister), approached the investigators while they were seated at the bar and, laughing, began talking about the fight. During the course of their conversation, Debra removed a straw from her shoe and a five dollar bill from her blouse. She unfolded the bill on the bar, revealing a white powdered substance, and snorted a portion of the substance through the straw. Several patrons, together with bartender Mindy, were present at this time. Later that evening, Mindy handed Investigator Garcia a small plastic bag of cocaine, telling him to go try some. The investigators went into the bathroom where they transferred a portion of the cocaine into a plastic bag for evidence and returned the remainder to Mindy." 2/ On June 6, 1986, Investigators Baixauli and Garcia returned to the premises, and assumed their usual seats at the bar. A patron seated next to Investigator Garcia introduced himself as Eduardo and asked Garcia if he wanted to buy some good perico. When Garcia agreed, Eduardo stood, removed a small plastic bag of cocaine from his pocket, laid it on the bar, and received $45.00 from Garcia. Several patrons, together with the on-duty bartender, Maritza, observed the transaction. Later, Investigator Baixauli asked on-duty bartender Debra if she could get him some cocaine. When Debra agreed, Baixauli gave her $50.00 and she walked over to three male patrons. Upon her return, Debra placed a plastic package of cocaine on the bar in front of the investigator. Several patrons smiled at Baixauli after observing the transaction. Following this sale, off- duty waitress Jenny approached Investigator Baixauli and told him she was sure he would like the perico since she was the supplier. Subsequently, Jenny joined a male patron seated down the bar, and the two snorted a white powder off the bar in the presence of numerous patrons. On June 9, 1986, Investigators Baixauli and Garcia returned to the licensed premises. The investigators began speaking with patron Eduardo, regarding the purchase of more cocaine. The investigators left the bar for a short time with Eduardo, but returned before him. When Eduardo entered the premises, he was carrying a large plastic bag containing approximately one ounce of marijuana. Eduardo placed the bag on the bar in front of the investigators, and told them the marijuana was on the house. On-duty bartenders Esperanza and Candy, together with Respondent, were proximate to this transaction. On June 10, 1986, the investigators returned to the premises. During the course of their visit, Investigator Baixauli observed a male patron playing the video poker machine who suddenly exclaimed "I won". Respondent told the patron to "leave it on 600 and I'll pay you". Respondent then paid the patron $150.00 from the cash register. The investigators again returned to the premises on June 12, 1986. As Investigator Garcia spoke with off-duty waitress Jenny, she removed a small change purse from her boot, which she opened to reveal several small packages of white powder. Jenny told Garcia she would sell him some for $50.00, as opposed to $60.00, if he would agree to let on-duty bartender Maritza have some. When Garcia agreed, Jenny and Haritza went to the restroom. Jenny subsequently returned and handed the packet of cocaine to Investigator Garcia. Later, a patron identified as Roger sat next to Investigator Garcia and Jenny, and purchased a packet of cocaine from her. Roger subsequently handed Jenny the packet and told her to let her friends try some. Investigator Garcia went to the restroom, secured a sample of the cocaine for evidence, and returned the remainder to Jenny. On June 16, 1986, the investigators returned to the premises and took their usual seats at the bar; on duty were bartenders Mindy and Debra. Investigator Baixauli observed Respondent standing at the video poker machine watching a patron play. When the patron had achieved a score of 400 points, he told Respondent to "credit me 50 on the machine and give me the rest". Respondent credited the machine 50 points, and paid the patron an unknown amount of money from the cash register. Meanwhile, Eduardo seated himself next to Investigator Garcia and asked if he wanted to buy some good cocaine. Garcia told Eduardo that he was a little short of cash, however, since Mindy volunteered to go halves, Garcia agreed. Garcia gave Mindy $25.00, she borrowed $10.00 from Debra, and gave Eduardo a total of $50.00 in exchange for a plastic packet of cocaine. Mindy held the packet up for Debra to see, whereupon they went to the restroom. Upon their return, Mindy placed the packet of cocaine on the bar in front of Garcia. On June 18, 1986, the investigators returned to the premises, and took their usual seats at the bar. While Garcia was seated next to, and speaking with, off-duty waitress Jenny, Jenny summoned Respondent. While Respondent was present, Garcia asked Jenny if she had a small amount of perico he could have since he was short of cash. At that point, Respondent moved about 3-4 feet away to speak with a patron. Jenny removed a plastic packet of cocaine from her pocket and placed it on the bar. As Garcia reached to pick up the packet, he observed Respondent looking in his direction. As Garcia continued to speak with Jenny, a male patron approached her and asked if she had his "stuff". Jenny handed the man a plastic packet containing a white powder and he paid her an unknown quantity of money. Investigator Garcia subsequently observed the patron snort a portion of the white powder through a rolled up dollar bill while standing in the pool room area. A number of patrons were playing pool or standing in the area during his activity. The investigators returned to the premises on June 20, 1986, and observed Respondent pay off on the video poker machine. Later in the evening, while Respondent was speaking to Sixto Gonzalez, Sixto called Mindy over and handed her a marijuana cigarette. Mindy and her sister Debra went to the service door and smoked the marijuana. On June 23, 1986, the investigators returned to the premises. After assuming their usual seats, Investigator Baixauli asked on-duty bartender Debra if she had any cocaine for sale. Debra replied that she did not, but that she could get some from another on-duty bartender, Esperanza. Baixauli gave Debra $50.00, and she secured a plastic packet of cocaine from Esperanza and delivered it to Baixauli. Several patrons, who were speaking with Esperanza at the time, observed the transaction. On June 27, 1986, the investigators returned to the premises for the last time. Seated in their usual seats, Investigator Baixauli counted out $50.00 in front of on-duty bartender Mindy. Mindy immediately picked up the money and, walking away, announced "it's perico time". Baixauli observed Mindy approach a male known as Flaco and then go the restroom. When she returned to Baixauli, she handed him a plastic packet of cocaine. Baixauli held the packet up in the presence of other patrons, and while Respondent was standing behind the bar. All of the events summarized in the preceding paragraphs took place at the licensed premises during normal business hours and at times when Respondent was present. At no time did Respondent or his employees express any concern about any of the drug transactions. In fact, all of the employees who worked in the bar portion of the licensed premises knew that marijuana and cocaine were being used and sold on the licensed premises, on a regular, frequent, and flagrant basis. Neither Respondent, nor any of his employees, took any action to prevent, discourage, or terminate the sale or use of controlled substances.
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
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapters 489, 455, and 120 F.S., and the rules promulgated thereunder. At all times material to the Administrative Complaint herein, Respondent was licensed as a certified pool contractor in the State of Florida, holding license number CP 0009588. At all times material hereto, Respondent was the qualifying agent for Pools by L. S. Rule. On August 12, 1987, Ms. Mary Tillotson forwarded a $1,200 check to Pools by L. S. Rule for pool repair work including replacing the existing pool skimmer and furnishing and installing one row of new tile and remarcite. Respondent estimated the job would require two weeks to complete. On August 24, 1987, Ms. Tillotson formally entered into a written contract with Pools by L. S. Rule to perform the aforementioned pool repairs at her residence of 2110 North 41st Avenue, Hollywood, Florida for a price of $2,330.00. The contract actually signed by the parties, which is the contract which governs this case did not specify a completion date or state that "time is of the essence" for the job; however, the Respondent was clearly aware as of August 11, 1987 that Ms. Tillotson wanted the pool repaired by approximately August 24 or 25. On August 24, 1987, an employee of Pools by L. S. Rule removed the old skimmer from Ms. Tillotson's pool and replaced it with a new skimmer the next day. There was no further work done on Ms. Tillotson's pool by Pools by L. S. Rule after August 25, 1987. Ms. Tillotson contacted the Respondent repeatedly and the Respondent informed her that he was having an employment problem, but would have someone come out the next day. Neither the Respondent nor any of his employees ever visited the Tillotson residence again, with the exception of a brief visit by one employee wherein no work was performed. Ms. Tillotson discharged the Respondent on September 10, 1987, fifteen days or roughly two weeks after the contract was entered into and approximately the date the pool was supposed to have been completed. Upon cancellation, Ms. Tillotson demanded a refund of her entire $1200 deposit. Ms. Tillotson contracted with Adonis Pools, on September 11, 1987 to perform the same repairs as she had requested of Respondent. The repairs were completed by Adonis within three days. During the time of the Tillotson contract, Respondent proceeded with the construction of approximately five pools and maintained a staff of five employees. The reason offered at hearing for failure to proceed with Ms. Tillotson's pool was that he had lost a key employee and there had been rain delays. On September 21, 1987, Ms. Tillotson wrote the Respondent and requested a refund of $920, a compromise amount less than the full $1200 deposit, reflecting what she believed accounted for the services and material already expended by Respondent and Pools by L. S. Rule. Respondent refused to refund any of the deposit unless the amount were compromised upon his terms and Ms. Tillotson refused to accept what she regarded as partial payment. Ms. Tillotson filed suit against Respondent in November, 1987. She was awarded a judgment for $875 plus $54 in court costs, in the County Court in and for Broward County, Florida on April 20, 1988. The Respondent did not pay Ms. Tillotson the award monies on the date of judgment. He had already spent some of her deposit elsewhere. The Respondent has since failed to refund any portion of the deposit. The efforts Respondent has expended to negotiate or pay the judgment do not reflect good faith attempts at full payment under the judgment. Frank Abbott is a certified general contractor and a registered Florida Architect. Mr. Abbott was retained and tendered by the Department of Professional Regulation (DPR) as its expert witness on the duties and responsibilities of contractors in the construction of pools; he was accepted as such over objection. It was Mr. Abbott's opinion that the Tillotson pool job should have taken one or two weeks, and upon the material in the DPR's investigative file, he concluded that abandonment by Respondent had occurred; that because the contractor accepted a deposit, failed to perform, and did not return any funds, there had been financial misconduct; and that therefore Respondent was guilty of gross negligence or incompetence. However, Mr. Abbott never spoke to Tillotson or Rule, never saw the area, the job, or assessed the weather conditions. He saw only a poor xerox copy of the photograph of the skimmer installation which was ultimately admitted as P-5. He offered no narrative of what constituted gross negligence as far as the skimmer job was concerned and merely offered his own legal conclusion that abandonment and financial mismanagement constitute incompetence or gross negligence. Some of his opinion was based on the way he operates his own contracting business, rather than upon general education, training, and experience in the contracting profession. He had personally supervised the building of only a few pools and only had connection with building eleven pools. He had never personally built a pool or done any pool work or received any specific pool training. In drawing his conclusions and in forming his opinion, Mr. Abbott also made assumptions with regard to characterizations in the DPR investigative file which were either not necessarily supported by the greater weight of the credible evidence as a whole as presented at formal hearing or which were extraneous to the issues in the specific case at bar. Petitioner presented no evidence of any kind bearing on the charge that Respondent failed to timely secure a building permit.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the charges against Respondent under Sections 489.129(1)(j) and (m) F.S, finding him guilty of violating Sections 489.129(1)(h) and (k) F.S., and imposing a $1,750 fine. DONE and RECOMMENDED this 19th day of December, 1988, Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3312 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) pursuant to Section 120.59(2) F.S. Petitioner's PFOF 1-11 Accepted, and with minor modifications of style, are adopted. 12-13 Accepted in substance but modified to conform to the greater weight of the credible evidence. 14-16 The expert opinions of Mr. Abbott are recited within the Recommended Order (RO), but were of little assistance to the trier of fact since they were mostly rendered in terms of raw conclusions of law rather than contracting expertise. To the extent they are credible and supported by the greater weight of the factual evidence of record, they have been accepted in the RO. For the most part they have been rejected for the aforesaid reason and for the reasons set out in FOF 14 and the Conclusions of Law (COL). Respondent's PFOF 1-9, and 22 Accepted. 10-11 Out of chronological context and thereby misleading as to the record evidence; for this reason and for the reason they are subordinate to the facts as found, they are rejected. 12 Sentence 1 is accepted. Sentence 2 is also out of chronological context and thereby misleading as to the record evidence and for this reason and for the reason it is immaterial, it is rejected. 13-14 Rejected as stated as not supported by the record evidence as a whole and as set out in FOF 13. 15-17 and 20 Rejected as not PFOF but proposed COL. 18-19 and 21 (on page 3 and on page 4) are partially accepted in substance in FOF 14 but otherwise are rejected as mere argument of counsel or as unnecessary. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Donald N. Bensen, Esquire 301 Southeast 10th Court Ft. Lauderdale, Florida 33316 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Wedgewood is the holder of Division of Beverage license number 62-1626, 4-COP SRX, which authorized Wedgewood to sell alcoholic beverages for consumption on the premises at retail only. Wedgewood is advertised as a resort with private villas, hotel rooms, two restaurants and a disco with live entertainment. An ad published on page 81 of Cruise Magazine, Volume 3, No. 4, however, makes no reference to any of the facilities except the appearance of an entertainment group known as The Village People. On the other hand, an ad in the November 19, 1977, issue of Florida Alive gives equal emphasis to hotel facilities, restaurant facilities and disco facilities. Wedgewood has promulgated and distributed a flyer advertising daily happy hour with special prices for alcoholic beverages. That same flyer advertises the sale of sandwiches and emphasizes that dining facilities are available nightly. Wedgewood has produced two menus. One appears to be a lunch menu which contains a soup, fifteen different sandwiches, three salads, five hot entrees, french fries, six desserts and beverages without reference to alcoholic beverages. Wedgewood has also produced a dinner menu containing appetizers, soups, five seafood entrees, five beef entrees, and two fowl entrees, with soup, salad and an assortment of desserts. The only reference to alcoholic beverages contained in the menu suggests that one's favorite after dinner drink is available. Wedgewood has two restaurants with complete facilities for serving and preparing for the requisite number of full course meals. For the period, June 15, 1977, through January 30, 1978, Wedgewood shows gross revenues of $162,685.00, composed of $22,991.00 for food sales and $139,694.00 for alcoholic beverage sales. These figures indicate that Wedgewood has derived approximately 14 percent of its total revenue from food services. One of the criteria contained in Rule 7A-3.15, Florida Administrative Code, used in determining whether or not the holder of a restaurant license is a bona fide restaurant is: The restaurant must derive at least 51 percent of its gross revenue from the sale of food and non-alcoholic beverages. The 51 percent shall be determined by taking the average monthly gross revenue of the sale of food and non-alcoholic beverages over a period of any calendar year. DABT urges that the gross receipts evidence of the approximate seven month period should be used in making a determination that the licensee is not a bona fide restaurant. However, DABT is arguing against its own regulations. Unless the revenues are analyzed over a calendar year as provided in the Rule, the percentage of revenue from the sale of food and non-alcoholic beverages may not properly be used as a criterion. Accordingly, the evidence as to the revenues will not be considered in the determination of the instant case. Wedgewood has advertised and held out to the public to be a place where meals are prepared and served, as evidenced by its comprehensive menus. The evidence shows that space is provided with adequate kitchen and dining room equipment and that there are employed sufficient numbers and kinds of employees for preparing, cooking and serving meals for guests. While Wedgewood obviously engages in the sale of alcoholic beverages, there is insufficient evidence to establish that such sale is subordinate to the sale of food. Equal advertising space is given to both functions and accordingly, it is found, as a matter of fact, that the principal business of the restaurant is to cater to and serve full course bona fide meals to the general public and the primary operation of the restaurant is for the preparation and cooking and serving of meals and not for the sale of alcoholic beverages.
