Recommendation Based upon Petitioner's failure to appear, it is RECOMMENDED THAT: A default be entered against Petitioner and a final order be issued denying Petitioner's application for a beverage license. RECOMMENDED this 18th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1980. COPIES FURNISHED: Mr. Melvin Stewart c/o Mel's Beer & Wine Lounge 301 N.E. 62nd Street Miami, Florida Dennis E. LaRosa, Esquire Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32301 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32301
The Issue Whether petitioner's application to change corporate 7 officers and stockholders should be granted, or denied on the grounds that the application is incomplete and the Division of Alcoholic Beverages and Tobacco has notified petitioner that administrative charges will be filed against it.
Findings Of Fact Based on the evidence presented, the following facts are determined: Petitioner, holding Alcoholic Beverage License No. 16-443, Series 2- COP, does business as Nick's Italian Kitchen at 3496 North Ocean Drive, Ft. Lauderdale, Florida. On February 26, 1982, DABT notified petitioner that it [DABT] "intends to file administrative charges against your [petitioner's] license for conviction of [a] corporate officer of [a] felony (tax evasion)." (Ex. 6) On September 15, 1982, petitioner corporation filed with DABT an application to change its officers and stockholders. The application, with attachments, indicated that Dominic Santarelli wished to transfer the stock of petitioner, by gift, to Dominic A. Santarelli, his son. Attached to the application was a representation by Sy Chadroff, Dominic Santarelli's attorney, that Dominic Santarelli owned one hundred percent of the stock of petitioner corporation, having acquired the balance (fifty percent) of the corporation's stock from Thomas J. and Frances Cummings pursuant to an Option Agreement dated September, 1974; and that the intended stock gift was contingent upon DABT's approval of the application. (Ex. 5) By letter of October 12, 1982, DABT notified petitioner that it was unable to continue processing the application because, among other things, the following information was missing: (1) cancelled checks and other documentation of stock purchase by Dominic Santarelli from the Cummingses and (2) further documentation of the stock gift from Dominic Santarelli to Dominic A. Santarelli, his son. Ex. 6) On October 14, 1982, attorney Chadroff responded to DABT's request for information. He replied that Dominic Santarelli acquired the Cummings stock for $10.00 pursuant to the Option Agreement attached to the application; reiterated that as a consequence, Dominic Santarelli owned one hundred percent of the corporate stock; confirmed that Dominic Santarelli had conveyed the stock, by gift, to Dominic A. Santarelli, his son; and asserted that there could be no further documentation of the gift until the gift tax return is filed. (Ex. 7) On December 14, 1982, DABT informed petitioner that the application for change of officers and stockholders was being denied on grounds that (1) the application failed to show how Dominic Santarelli came into possession of the fifty percent of the corporation stock owned by the Cummingses and (2) documentation had not been provided indicating how Dominic A. Santarelli (the son) had obtained one hundred percent of the corporate stock from Dominic Santarelli (his father). (Ex. 10) On December 21, 1982, petitioner challenged DABT's denial of its application and requested a Section 120.57 hearing. Thereafter, DABT granted the request and forwarded this case to the Division of Administrative Hearings. (Ex. 11) On March 23, 1983, DABT filed an amendment to its December 14, 1982,denial, supplying an additional ground: that the applicant (petitioner) was not entitled to approval of the transfer because of DABT's prior notice of intent to file administrative charges, referring to the February 26, 1982, notice issued more than one year earlier. As of April 20, 1983, the date of hearing, the promised administrative charges had not yet been filed by DABT. DABT has presented no evidence, justifying, excusing, or explaining this extensive delay in filing charges. (Ex. 13) On October 6, 1981, a jury of the U.S. District Court of the Southern District of Florida, found Dominic Santarelli guilty of one count of violating the federal income tax code. (Ex. 8) The only evidence of record offered to establish that Dominic Santarelli, in fact, exercised his right under the Option Agreement to purchase fifty percent of the company's stock from the Cummingses is the written representation by attorney Chadroff, Dominic Santarelli's counsel. There is no evidence that petitioner ever applied for or obtained the necessary DABT approval for any such stock transfer. To the contrary, it appears that DABT's records continue to show that the Cummingses own fifty percent of the corporation's stock.
Recommendation Based on the foregoing, it is RECOMMENDED that petitioner's application be denied on grounds of incompleteness, in that it has not been shown how Dominic Santarelli obtained fifty percent of the stock of petitioner corporation owned (on DABT's books) by Thomas and Frances Cummings. DONE and RECOMMENDED this 2nd day of June, 1983, 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 2nd day of June, 1983.
The Issue Whether Respondent owes additional alcohol consumption tax.
Findings Of Fact Respondent, Funtana Village, Inc., is the holder of a valid alcoholic beverage license number 13-00155, Series 4-COP. The license is for its premises known as the "Spinnaker" located at 8795 Thomas Drive, Panama City Beach, Florida. The Spinnaker is an entertainment facility that serves alcoholic beverages. The availability of alcoholic beverages is part of the entertainment experience at the Spinnaker. The facility has five live stages and provides other sources of entertainment. It budgets and spends $500,000 to $600,000 per year for entertainment, such as musical shows, acts and bands. During the period of May 4, 1995, through December 18, 1995, the Division performed a surcharge tax audit of the Respondent. The surcharge tax is levied on ounces (volume) of beer, wine and liquor sold for consumption on the vendor's premises. See Rule 61A-4.063, Florida Administrative Code. The Division audits vendors' monthly surcharge reports in order to confirm their accuracy and ensure compliance with statutory and rule requirements, as well as ensure that the proper amount of surcharge tax is paid. In general licensed vendors may select from two methods for reporting the surcharge, the sales method and the purchase method. Under the sales method, vendors pay the surcharge on the volume amount of alcoholic beverages sold for consumption on the licensed premises. Under the purchase method, vendors pay the surcharge on the volume amount of alcoholic beverages purchased from that vendor's alcohol distributor. In this case, the audit covered the reporting period of July 1, 1994, through March 31,1995. Respondent elected the sales method of payment. The audit was conducted by Marie Carpenter, an auditor employed by the Petitioner. Prior to the audit involved in this case, the Division performed an audit of Respondent covering the period of July 1, 1990, through November 30, 1992. Another auditor from the Division performed the audit. Pursuant to negotiation and agreement with Petitioner, Respondent performed a self-audit for the period from December 1, 1992, through June 30, 1994. The results of the self-audit were accepted by Petitioner. A settlement was entered into by both parties. The audit in issue in this action starts with the day immediately following the end of the self-audit period, July 1, 1994. Importantly, in preparing the reports for the audit involved in this case, Respondent followed the exact methodology and percentages used in calculating the tax due under the previous audit which had resulted in a settlement agreement between Respondent and Petitioner and was approved by Petitioner. In performing the July 1, 1994, through March 31, 1995, audit, the auditor did not review the prior self-audit because each audit should stand on its own merits. She also used slightly different mathematical methods and percentages to arrive at the amounts the Division has alleged are due. The purpose of the current audit was to determine whether accurate records were being kept by the Respondent and whether accurate deductions of non-surchargeable (or free) drinks were being calculated by the Respondent. In the December 22, 1995, report on the audit, the auditor found that the Spinnaker's records as kept were accurate and traced correctly throughout the audit trail. In the audit the Division calculated the amount of the surcharge owed by Respondent using the "sales depletion method." This formula is provided for in the Division's rules. Under the formula, the Division first determined the Respondent's beginning inventory by volume for July 1, 1994. The figure used by Respondent was gleaned from the records Respondent provided to the Division's auditor. However, the evidence showed that the figures the auditor used for the beginning inventory were too low. The more accurate figures for the beginning inventory were the ending inventory figures from the previous self-audit period, which the Division had accepted and approved in the earlier settlement agreement. The more accurate figures should have been used by the Division. Second, the purchases by volume of alcoholic beverages made by the Respondent during the audit period were added to the beginning inventory figures to yield total inventory figures. Third, the ending inventory of alcoholic beverages on March 31, 1995, was determined. Again, the purchase information and ending inventory information was obtained from the records of the Respondent and independently confirmed from the records of the Respondent's distributor. Fourth, the inventory figures were subtracted from the total inventory figures to yield the gross gallonage available for sale during the audit period. Fifth, adjustments or deductions were made to the gross gallonage figures to yield the net gallonage figures to which the surcharge is applied. Some of the deductions to the gross gallonage figures were deductions for spillage, cooking and "free" drinks. Finally, the total surcharge amount was calculated and compared to the amount already reported and paid to determine if any surcharge was under-reported or over-reported. In this case, it was found the Respondent under-reported the surcharge due. The under-reporting was due to the Respondent's interpretation of the deduction allowed for free drinks. In essence, the issue was whether drinks given away by Respondent to customers, who have paid a cover charge to enter the premises or who have bought a membership in the Spinnaker, are free or sold because some consideration has been given by the customer for the drink. The Respondent based its interpretation on the way free drinks were handled in the settlement agreement it had entered into earlier. The witnesses confirmed that if cover charges were not treated as consideration for alcoholic beverages, the amount claimed by Petitioner to be due would be zero. The Petitioner has had a long-standing policy that a "cover charge" constitutes consideration for alcoholic beverages. This policy is contained in the Division's audit manual. The manual does not provide any leeway to auditors to apply or not to apply the policy, depending on the facts of the case. This policy has never been promulgated as a rule. Based on the policy, Petitioner determined that free drinks served by Respondent to those paying a cover charge for admission to Spinnaker were considered "sold" and therefore subject to the surcharge. The evidence showed that Respondent does not always charge a cover charge for admission to its facility. Respondent, during the course of the audit, provided the auditor with a schedule of its free drink offers for the audit period. The schedule demonstrated: Cover charges were collected even when there were no free drink specials. Respondent provided free drinks without requiring payment of a cover charge. Cover charges were imposed even after free drink specials ended. Cover charges fluctuated with the type of entertainment and the volume of business. Respondent never charged a cover charge where there was no entertainment. The evidence demonstrated that Respondent tracks the amount of cover charge needed to be generated to pay for the live entertainment and has never considered the cover charge as payment for any alcoholic beverages it sells. In fact, whether admission to Respondent's premises is charged appears to depend on two factors, live entertainment and seasonal customer volume. Cover charges were unrelated to any normal drink sales. Petitioner also disallowed deductions for membership cards purchased by patrons. Information provided by Respondent demonstrated that 77.5 percent of all membership cards were given away and that 22.5 percent were sold. Petitioner projected this ratio through the audit period and disallowed 22.5 percent of all alcoholic beverages given away to members because purchase of the membership cards was construed to be consideration for the drinks served. The membership cards were provided to patrons to gain free admission to the facility (exceptions exist for certain entertainment) and, at the time of the audit, for free parking, discounts on clothing, one-third discounted drinks and, on occasion, free drinks. Admittedly, the benefit value of member "free drinks," when compared with the value of other member benefits, is little. However, there is some value exchanged for the price of the membership card and some consideration has passed. Therefore, the surcharge is appropriately applied by the Division to the free drinks served to members. In September 1997, the Division at Respondent's request reviewed the audit and made certain adjustments to its earlier findings. The audit was adjusted based on a better explanation from Respondent of its draft beer giveaways and an error in the original audit. The re-audit performed by the auditor in September 1997 reduced the amount of the surcharge reported to be due in December 1995 from a total of $45,673.93 to a total of $19,619.26 of which $16,761.04 was the surcharge due; $2,549.77 was for penalties and $308.45 was for interest. However, the auditor in the re-audit adjusted for the draft beer giveaways by applying 20 percent to the free drinks rung up on the cash register to determine the deduction for free drinks. The earlier audit used in the settlement agreement applied the percentage to the total purchases to determine the deduction for free drinks. The method and procedures for establishing the percent of inventory which constituted free drinks in the earlier audit were standard auditing processes. The evidence did not support a change in that process. Therefore, the giveaway percentage should have been applied as it was in the audit for the settlement agreement. That method was approved by the Division and should have been followed for the purpose of consistency in the audit at issue here. The penalty was predicated on a prior action involving these two parties; however, the Consent Order entered in that prior action provided that the initial action would not be considered as a basis for imposing a penalty in any subsequent proceeding involving these issues. Therefore, the prior action cannot be used to increase the penalty, if any, imposed on Petitioner. Moreover, the under-reporting of the surcharge by Respondent was due to its legitimate reliance on the methodology and percentages used in the settlement agreement between it and Petitioner. Reliance on those provisions was reasonable and should not cause them to be penalized. Therefore, no penalty should be imposed on Respondent. Other than as noted above, the Division’s procedures and methodologies used in the audit at issue here were reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the assessment of surcharge principal and interest by Petitioner against Respondent be re-calculated as outlined above and any penalty be waived. DONE AND ENTERED this 4th day of March, 1998, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 4th day of March, 1998. COPIES FURNISHED: Albert C. Penson, Esquire Penson and Padgett Post Office Box 1327 Tallahassee, Florida 32302 Miguel Oxamendi, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Boyd, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues presented are those set forth in a notice to show cause filed by Petitioner against Respondents in Case No. AY-74-87-0201. In particular, it is alleged that on March 16, 1988, October 21, 1988 and February 24, 1989, that the Respondents or their agents, servants or employees sold alcoholic beverages to minors in violation of Sections 561.29, Florida Statutes and 562.11(1)(a), Florida Statutes.
Findings Of Fact At all times which pertain to this Notice to Show Cause/Administrative Complaint, Respondents were doing business at 238-240 Atlantic Avenue, Daytona Beach, Volusia County, Florida under the business name Speidi Shack and pursuant to a beverage license issued by Petitioner. That license number was and continues to be number 74-01802, Series 2-COP. On March 16, 1988, and again on October 21, 1988, Michael Vanorder, whose birthday is March 27, 1969, purchased a Light beer from employees of the Respondents in the licensed premises. On February 24, 1989, Tina May purchased a Light beer from an employee of the Respondents in the licensed premises. Her date of birth is August 4, 1968. The Light beers that were purchased by those two individuals are alcoholic beverages. In the incident of March 16, 1988, Vanorder entered the licensed premises as an underage operative of the Petitioner. The purpose of underage operatives is to assist the Petitioner in investigations to ascertain whether suspected alcoholic beverage license holders will sell alcoholic beverages to minors. Vanorder was provided money from the Petitioner to purchase the alcoholic beverage if the licensees, their agents or employees would sell. Betty Warner and Tanya Pandarakis, who are Alcoholic Beverage Agents for Petitioner were in the bar and watched as Vanorder was asked by the bartender what Vanorder wanted. Vanorder indicated that he wanted a Light beer. Mark Barker, the bartender, brought a Light beer to Vanorder and accepted payment for that beer. In this purchase, Vanorder was not asked to produce any identification nor was he asked how old he was. Vanorder was under instructions from Petitioner's agents to validly respond to any questions about his age and to provide accurate identification in support of his remarks. The beer that he was given had been opened by the bartender. These events occurred around 8:35 p.m. The beer that was purchased was then given from Vanorder to Warner. Barker was then arrested by Warner and another Alcoholic Beverage Agent, Fred Dunbar, for selling alcoholic beverages to a minor. The arrest occurred when Dunbar entered the licensed premises following the sale and identified himself as an Alcoholic Beverage Agent. Prior to leaving the premises on that occasion, Respondent John M. Macker was told of the arrest and why an investigation had been made in the first place about suspected sales to minors in the licensed premises. Macker came the next day to meet with Dunbar at the invitation of Dunbar. Macker was told that a complaint file would remain open and that underage operatives would continue to be sent into the licensed premises to see if Macker had corrected the problem of selling to underage patrons. Respondent Macker promised that he would have closer supervision and would give training to his employees about proper identification techniques for sales of alcoholic beverages in the licensed premises. An official notice was given to the Respondents, a copy of which may be found as Petitioner's Exhibit No. 3 which was admitted into evidence. That notice is dated March 17, 1988 and is issued from Dunbar and is acknowledged as having been received by Respondent Macker. It identifies the facts of the sale to a minor and the arrest of Mark Barker and warns Respondents that if the violation occurs again, that Respondents could be charged with the violation of March 16, 1988 and any future violations. Throughout this warning phase associated with the sale of March 16, 1988 Respondent Macker was cooperative in his attitude. As forecast, Petitioner sent Vanorder back into the licensed premises on October 21, 1988 to see if Respondents, their agents, servants or employees would sell him alcoholic beverages. Beverage Agent John Szabo, Agent Dunbar, Lt. Powell and Vanorder went to the licensed premises on that evening. Their activities at the licensed premises commenced around 8:55 p.m. At this time, there were around 10-20 patrons in the bar. Szabo went in first and sat down at the bar and ordered a beer. Vanorder came in some 2-3 minutes later and sat down at the bar. A white female bartender who was identified later as Beth Ann Marsden approached Vanorder and asked him what she could get for him. He asked for a Bud Light. The bartender went to the cooler and came back with an open can of Bud Light and said that the cost of that beer would be $1.25. Vanorder paid her and she gave him back change. Vanorder then went outside the licensed premises and gave the beer to Dunbar. During the course of this purchase, Vanorder was not asked his age or asked for any form of identification which would demonstrate his age. As before, Vanorder was prepared to show a valid identification and give his correct age. After Dunbar was given the beer, he came into the licensed premises and he and Szabo confronted the bartender with the fact that she had sold beer to an underaged patron. They asked if the owner was on the premises and she said that he was not. The bartender was then charged with selling to a minor. She was given a Notice of Appearance for October 25, 1988 which constituted of a letter of final warning to the licensee. A third phase of the investigation occurred on February 24, 1989 when Tina May, an underaged operative for the Petitioner assisted in the investigation of sales to minors. Around 10:50 p.m., Officer Szabo, Beverage Officer Sullivan and Tina May went to the licensed premises. Szabo went in the bar first. One customer was in the bar. Szabo asked for a beer and was asked for his identification and showed his license and was served a beer. Before Tina May entered the license premises, she had been instructed to dress in normal attire and to carry her drivers license and to tell the truth about her age and to give the correct identification. Once inside the licensed premises, May sat where she could be seen by Officer Szabo. The other patron left the bar. Around 11:00 p.m., May was approached by Beth Ann Marsden who asked May what she wanted. May replied that she wanted a Bud Light. The bartender asked for identification and a driver's license was produced which showed May to be underage. Marsden was seen to count on her fingers when shown the identification. She opened up a Bud Light beer for May and gave it to her and said that the price of the beer was $1.25. May gave her $5.00 and received change. She then gave the beer to Szabo. Szabo then told the bartender that he was a Beverage Officer. Marsden recognized Szabo from the prior incident with Vanorder on October 21, 1988. Marsden told Szabo that May was 21 years old. Szabo got the driver's license from May and showed it to the bartender who admitted that she had made a mistake and that she didn't look at the month of the birth. She had only looked at the year, 1968. Out of this incident, an Official Notice was prepared, a copy of which may be found as Petitioner's Exhibit No. 4 admitted into evidence. It sets out the violations of March 16, 1988, October 21, 1988 and February 24, 1989 and the intention of the Petitioner to file administrative charges against the Respondents for sales to minors. Since the Respondents were not there, the list was left with a Rosemarie Savini. That notice was served on November 2, 1989. Before the time of the final hearing in this case, the sole ownership of the licensed premises had been left with John M. Macker. Linda F. Williams no longer is involved with the license in question. Respondent Macker's principle business is that of a commercial fisherman. During the pendency of this investigation, he was gone a lot from his licensed premises because of his other work and relied on his employees to act appropriately concerning sales to minors. In the period 1985 until January, 1989, he had not experienced problems with this. He had posted notices around the bar about sales to minors and had instructed his employees about being careful not to sell to minors. He has calendars from beer distributors which assist in ascertaining the age of minors. March 16, 1988 was Barker's first day on the job, as was October 21, 1988 the first day on the job for Beth Ann Marsden. His instructions to his employees was to check identification if people did not look at least in their fifties or older than Respondent. Since these events, Respondent has taken more detailed steps and placed other signs to avoid sales to minors. He doesn't wish these problems to occur again and regrets that they happened on this occasion. On the other hand, he did not ask for help from the Petitioner after the October 21, 1988 incident as was offered. Following the third sale, he has moved into the licensed premises to maintain better control of the circumstance. No other incidents were reported to have occurred beyond that adjustment concerning sales to minors.
Recommendation Having considered the facts, and the conclusions of law reached, it is, RECOMMENDED that a Final Order be entered which fines the Respondents in the amount of $500 for these violations. DONE and ORDERED this 19th day of October, 1989, in Tallahassee, Florida. CHARLES C. ADAMS 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 19th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2457 Those facts as suggested by the Petitioner are subordinate to facts found in this Recommended Order. COPIES FURNISHED: Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John B. Fretwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John M. Macker 238-240 North Atlantic Avenue Daytona Beach, Florida 32018
Findings Of Fact 10. The Division hereby adopts and incorporates by reference the Finding of Fact in foto, as set forth in the Recommended Order.
Conclusions The Director, Division of Alcoholic Beverages and Tobacco, Department of Business and Professional Regulation (hereinafter’Division’), after consideration of the complete record of this case on file with the Division, hereby enters this Final Order.
The Issue Whether the Respondent committed the violations alleged in the Administrative Action dated August 11, 2000, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with enforcing Florida's Beverage Law, and, specifically, with regulating the sale of alcoholic beverages. Sections 561.02 and 561.11(1), Florida Statutes. At all times material to this proceeding, Coluccis Attic, Inc., held alcoholic beverage license number 60-11724, Series 4 COP SRX, a special restaurant license which authorized the sale of alcoholic beverages on the premises of the restaurant of the same name located at 600 North Congress Avenue, Delray Beach, Florida. On July 18, 2000, an inspector employed by the Department conducted a routine investigation of the restaurant. As part of the investigation, the investigator was provided a copy of the restaurant's sales report for the period from May 17, 2000, through August 6, 2000. The investigator calculated the percentages of gross revenue from the sale of food and of alcohol sales with respect to total gross sales, and the calculations showed that food sales were 31.5 percent of total gross sales.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order, Finding that Coluccis Attic, Inc., violated Section 561.20(2)(a)4., Florida Statutes (2000); Imposing an administrative fine in the amount of $1,000.00 against Coluccis Attic, Inc.; and Revoking the special restaurant license of Coluccis Attic, Inc., without prejudice to apply for any other type of alcoholic beverage license but with prejudice to apply for a special restaurant license for a period of five years. DONE AND ENTERED this 21st day of August, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 21st day of August, 2001.
The Issue Whether the Petitioner, Moishes Steakhouse & Seafood, Inc., timely submitted an application to record a lien for license number 23-02731 4COP.
Findings Of Fact On or about March 3, 1999, Armar Inc., Arnaldo Bou, individually, and Martha Pinango, individually, as debtors, and the Petitioner, by Eugenio D'Arpino, as president of the company, the secured party, executed a security agreement (chattel mortgage) related to beverage license 23-02731, series 4COP. Such security agreement recognized a priority lien for the Petitioner, Moishes Steakhouse & Seafood, Inc., and included a promissory note executed by the debtors. The promissory note, dated March 3, 1999 (presumably executed on or about that date), provided: THIS NOTE IS NOTE ASSIGNABLE AND NON- ASSUMABLE WITHOUT THE EXPRESS WRITTEN APPROVAL OF THE SECURED PARTY. THIS NOTE IS SECURED BY A SECURITY AGREEMENT (CHATTEL MORTGAGE) AND UCC-1 WHICH SHALL CREATE A PRIORITY LIEN (1ST PLACE LIEN) ON STATE OF FLORIDA ALCOHOLIC BEVERAGE LICENSE NO: 23- 01686, series 4 COP quota. The security agreement and promissory note were not provided to the Department within 90 days of March 3, 1999. Apparently, the fact that the note and security agreement make reference to different alcoholic beverage license numbers is not an issue. Neither party has raised that issue. The Petitioner forwarded the note and security agreement to the Department for recordation on or about September 21, 1999. At that time the Department received an application to record a lien for license no. 23-02731, series 4COP. On October 11, 1999, the Department sent Petitioner a letter declining the application because it was not made within 90 days after the creation of the lien. The Department requested a newly executed security agreement so that the dates would show the request for recording within 90 days of the application. It is the Department's position that the lien application should have been submitted within 90 days of its creation in order to comply with the mandatory guidelines of the statute. For purposes of this case, the Department argued that the "creation of the lien" was on or about March 3, 1999, or, at the latest, March 15, 1999 (a date noted in the escrow agreement). The Petitioner timely sought an administrative review of the Department's decision. It is the Petitioner's position that the lien did not "break escrow" until August of 1999, and that, as a matter of law, that is the point in time from which the 90 day period should run. From the Petitioner's perspective, the "creation of the lien" as used by the statute dates from when the transaction broke escrow. All parties agree that the statute does not specifically address escrow transactions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order approving the Petitioner's application to record a lien on the subject alcoholic beverage license. DONE AND ENTERED this 1st day of March, 2002, 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 1st day of March, 2002. COPIES FURNISHED: Sherrie Barnes, Esquire Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Major Jorge R. Herrera Department of Business and Professional Regulation 8685 Northwest 53rd Terrace Augusta Building, Suite 100 Miami, Florida 33166 Louis J. Terminello, Esquire Terminello & Terminello, P. A. 2700 Southwest 37th Avenue Miami, Florida 33133-2728 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner's request for renewal of a lien should be granted or denied.
Findings Of Fact Based on the stipulation of the parties, the following findings of fact are made: The Division is the state agency responsible for enforcing the provisions of Florida's Beverage Law, including recording and providing information about liens and security interests in alcoholic beverage licenses. §§ 561.02 and 561.65, Fla. Stat. D.A. Mortgage's lien against the alcoholic beverage license of Opium/Café Tabac, License # 23-09383 4COP, was recorded with the Division on February 28, 2001. The lien expired by operation of law on February 28, 2006. D.A. Mortgage submitted DBPR ABT Form 6022 to the Division with a cover letter dated March 1, 2006; the envelope in which the form was mailed to the Division was postmarked March 1, 2006. The form indicated that the transaction requested of the Division was a lien renewal/extension, and it included signatures purporting to be those of the managing member of the debtor, dated January 23, 2006, and of the president of the creditor, D.A. Mortgage, dated January 27, 2006. The form also indicated that the effective date of the security interest at issue was February 28, 2006. The Division did not record the lien renewal because the request was not submitted within six months prior to the expiration of the lien.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order denying the request of D.A. Mortgage, Inc., to renew the lien at issue herein. DONE AND ENTERED this 4th day of August, 2006 in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 4th day of August, 2006.
The Issue Whether respondent's alcoholic beverage license should be revoked for violating a stipulation stated on the record in a prior license revocation proceeding.
Findings Of Fact Respondent holds alcoholic beverage license no. 16-2337, Series 2-APS and owns and operates Hammer's Package Store, the licensed premises, at 3231-A West Broward Boulevard, Ft. Lauderdale, Florida. In 1981, DABT filed two administrative actions to revoke respondent's alcoholic beverage license pursuant to Section 561.29, Florida Statutes. The charges were, apparently, disputed and a hearing officer requested, since the cases were forwarded to the Division of Administrative Hearings for assignment of a hearing officer. Thereafter, on April 18, 1981, Hearing Officer Robert T. Benton, II, conducted a Section 120.57(1) hearing on the charges. At hearing, both parties were represented by counsel: DABT by James N. Watson, Jr., a staff attorney for the Department of Business Regulation; respondent by Ray Russell, whose address was 200 S. E. 6th Street, Ft. Lauderdale, Florida 33301. At the outset, counsel for both parties advised Hearing Officer Benton that they had reached "an agreement" (P-1, p. 3), thus obviating the need for a hearing on the charges. Counsel then recited, on the record, the terms of their settlement agreement: respondent was given 90-days in which its corporate entity could be sold, with the period beginning to run from March 19, 1981--the next day--and ending on June 16, 1981; when the corporate entity was sold or the 90-day period expired, whichever occurred first, respondent was to surrender its alcoholic beverage license to DABT for cancellation; respondent waived its right to an evidentiary hearing on the charges and to appeal any matters covered by the agreement; and, from the time the corporate entity was sold or the 90-day period for sale expired, no corporate officers, directors, or shareholders of respondent would again engage in the alcoholic beverage business, make any application for a beverage license, apply for transfer of a beverage license, or hold an interest in any business involved in the sale or distribution of alcoholic beverages. (DABT Ex. 1, p. 5-8). Without objection from respondent's counsel, DABT's counsel described the consent order (or settlement agreement) as "in the nature of a final administrative action and [respondent] acknowledges that its failure to abide by such would subject him to the provisions of Florida Statutes 120.69 (P-1, p. 6). Although this settlement agreement was effective and began to operate immediately (the 90-day period for sale commenced the next day) DABT's counsel contemplated that a written and signed consent order embracing the terms of the settlement agreement would be subsequently issued. Although such follow-up action was intended, it never occurred. DABT never issued a written order, consent or otherwise, embracing the terms of the settlement agreement. Hearing Officer Benton and, at least one party, thereafter relied on the settlement agreement. The hearing officer closed both Division of Administrative Hearings files, and DABT no longer prosecuted respondent under the pending charges. Since June 16, 1981, the expiration of the 90-day period provided in the agreement, respondent has continued to operate its licensed alcoholic beverage premises, has failed to sell its corporate entity, and has failed to surrender its alcoholic beverage license. Respondent has presented no evidence justifying or excusing its failure to surrender its alcoholic beverage license to DABT for cancellation on or before June 16, 1981. Neither does it seek to withdraw from or set aside the settlement agreement.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be revoked. DONE and ENTERED this 26th day of May, 1983, 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 26th day of May, 1983.
