The Issue The issue presented here concerns the entitlement of the Petitioner to be granted a new Series 2-COP beverage license from the Respondent.
Findings Of Fact The Petitioner, Dorothy Risby, filed an application to be issued a new Series 2-COP alcoholic beverage license. The application was filed on January 28, 1980, and if the license were issued, it would allow for the sale of beer and wine to be consumed at the Petitioner's premises known as the V I P Night Club, located at 922 East Brownlee Street, Starke, Florida. After the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco, had received and reviewed the application, it was denied. The basis of the denial was, quoting from the license application denial, "undisclosed interest" and reference was made to Section 561.17, Florida Statutes, as the authority for such denial. Specifically, the Respondent is persuaded that Albert Parrish has an "undisclosed interest" in the prospective licensed premises and that in view of this interest the Petitioner is not entitled to receive the beverage license. Albert Parrish was the former holder of an alcoholic beverage license issued by the Respondent, and the licensed premises to which the license pertained was the same premises as contemplated by the present Petitioner. Parrish did business at that location under the name Red Honey until his license was revoked on December 31, 1979. The current Petitioner has known Albert Parrish for a period of ten to twelve years and in the course of that time, Parrish has helped support the children of the Petitioner who presently live at home with her. This support spoken to is financial support. The Petitioner and Albert Parrish have also lived together in that period of time and as recently as February, 1980. The latter statement concerning the living arrangements between the Petitioner and Parrish was ascertained when Beverage Officer Robert W. Cunningham went to the licensed premises in making a pre-licensure inspection in February, 1980, and encountered Albert Parrish on the proposed licensed premises. Parrish indicated that he was just at the licensed premises sleeping following a break-in that had occurred at that location. At the same time he indicated that he was living at Apartment 51 on Brownlee Street, Starke, Florida, which is the residence address given by the Petitioner in her application for licensure. This also was the same residence address that Albert Parrish had put on his beverage license application when he had applied for the beverage license issued to him in the past. In the course of the meeting referred to above, Parrish stated that the utilities for the licensed premises were being paid for by him and that the phone in the licensed premises was primarily for the benefit of the ABC Junk Yard, a business operated by Parrish, which was located at that time behind the prospective licensed premises. The phone located at the licensed premises also rang at the Apartment 51 when calls were made in. At the time of Cunningham's conversation with Parrish, the rent for the licensed premises was being paid month to month and was paid at times by the Petitioner and at other times by Parrish. The most recent rent of August, 1980, was paid by the Petitioner. At the time of the hearing, the utilities for the licensed premises still remained in the name of Albert Parrish, although payment for those utilities was being made by the Petitioner. The telephone remained in the name of Albert Parrish because in the words of the Petitioner, it cost $200.00 to change over the phone from Parrish's name to the Petitioner's name and the Petitioner could not afford to make that change. In the interim, the Petitioner intends to pay for the telephone until such time as she cannot afford to pay and the service charges and at that time she would expect the telephone to be removed for nonpayment. At the time of the hearing, Albert Parrish was no longer in the junk yard business at the licensed premises and was not living with the Petitioner at the Apartment 51 due to the fact that the welfare officials had instructed the Petitioner that if Parrish lived there, the Petitioner could not receive help for her children. At present, the Petitioner does not know the exact residence address of Parrish nor of his future intentions regarding their relationship in which she had been his "girlfriend" in the past. Parrish still gives her $10.00 or $15.00 when he can afford it and when she asks him for the money. The Petitioner presently sells sandwiches and soft drinks at the licensed premises and has an occupational license from Bradford County, Florida, which allows her to do this. This license is in her sole name. Albert Parrish is not involved in the daily operation of this business. It is the intention of the Petitioner to expand the base of her operations to include the sales of alcoholic beverages. In taking over the licensed premises, she intends to continue to pay the month-to-month rent due at the licensed premises. In pursuit of the expansion of her business, Parrish gave the Petitioner certain tables and chairs in the licensed premises to use for her purposes. Parrish was not paid any amount of money for his good will or inventory and no inventory remained to be used by the current Petitioner. The Petitioner receives other income from the licensed premises in the form of a concessions for a "piccolo and pool tables". The average amount of income from those concessions being $65.00 for the piccolo and $80.00 for the pool table, on a weekly basis, of which one-half of the money is paid to the concessionaire of those items in lieu of rentals. Presently, the apartment rent of the Petitioner is paid primarily from funds received from the business, from money provided by the Petitioner's elder sons, and from welfare payments to the Petitioner.
Recommendation It is RECOMMENDED that the Petitioner, Dorothy Risby's application for a new Series 2-COP alcoholic beverage license be DENIED. DONE AND ENTERED this 4th day of September, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1980. COPIES FURNISHED: Dorothy Risby 922 East Brownlee Street Starke, Florida 32091 William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the offenses set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent was licensed by Petitioner, having been issued license number 60-01280, Series 1- APS. No dispute exists that such license permits Respondent to make packaged sales of beer and wine at its establishment. Respondent's last known address is 148 West Avenue A, Belle Glade, Florida. Respondent's establishment is a convenience store. On or about April 17, 2002, Jeremiah Alexander Maxie went to Respondent's establishment for the specific purpose of attempting to purchase beer. Mr. Maxie is employed as an investigative aide for Petitioner. At the time that he visited Respondent's establishment, Mr. Maxie was under 21 years of age; he was 17 years of age, having been born on August 10, 1984. Mr. Maxie did nothing to alter his appearance in an attempt to affect his age. Mr. Maxie attempted to purchase beer at twelve other locations on April 17, 2002. He was paid $35 by Petitioner for that day. Mr. Maxie entered Respondent's establishment at approximately 4:50 p.m. Shortly thereafter, approximately 20 seconds later, Petitioner's Special Agent Danny Stoops, who was undercover, entered Respondent's establishment. Agent Stoops observed the actions of Mr. Maxie. Agent Stoops is a 24-year veteran with Petitioner. He gave Mr. Maxie instructions as to what to do. Agent Stoops instructed Mr. Maxie to attempt to purchase a Budweiser product and, if the clerk requested identification, for Mr. Maxie to politely set the beer down and leave. Mr. Maxie proceeded to the rear of Respondent's establishment to the coolers. He removed a can of beer, a Budweiser product, and proceeded to the cash register. At the time of hearing, Mr. Maxie could not recall the particular type of Budweiser product. Agent Stoops observed Mr. Maxie proceed from the coolers to the cash register although he did not observe the product that Mr. Maxie had obtained. Mr. Maxie gave the cashier/clerk, Armando Rodriguez, who is Respondent's owner, U.S. Currency as payment for the beer. Mr. Rodriguez placed the Budweiser product in a paper bag and gave Mr. Maxie a receipt, but Mr. Maxie did not look at the receipt. Mr. Maxie departed Respondent's establishment. At the time of hearing, Mr. Maxie could not recall the denomination of currency that he gave to Mr. Rodriguez or the amount that he had paid for the beer. Agent Stoops observed Mr. Maxie give Mr. Rodriguez the currency but did not observe the denomination. Agent Stoops departed Respondent's establishment approximately 15 to 20 feet behind Mr. Maxie. When they were outside, the purchased Budweiser product was given to Agent Stoops by Mr. Maxie. Both Agent Stoops and Mr. Maxie initialed the paper bag into which Mr. Rodriguez had placed the Budweiser product. Agent Stoops placed the Budweiser product in an evidence bag, tagged it with an evidence receipt bearing a control number, and secured the bagged evidence in the trunk of his vehicle. Agent Stoops removed the bagged evidence from the trunk of his vehicle and placed it in Petitioner's evidence vault. For hearing, Agent Stoops retrieved the bagged evidence from the evidence vault. The Budweiser product presented at hearing was a can of Bud Light Beer, which was still in the paper bag in which the beer was placed at the time of purchase. No challenge to the chain of custody of the can of beer was made and no problem exists as to the chain of custody of the can of beer. No receipt for the purchase of the Budweiser product was included in the bagged evidence. Agent Stoops could not independently recall that a receipt was presented to him by Mr. Maxie. Respondent entered into evidence cash register receipts for April 17, 2002, which do not reflect the purchase of any alcoholic beverage. However, the cash register receipts reflect, among other things, "taxable" and "grocery" items, not the particular items themselves, and "meat"; thereby, the cash register receipts differentiate only between "grocery" and "taxable" and "meat" items. Further, the cash register receipts are numbered 058616 through 058619, with times of day reflecting 16:05 through 16:09, and 058624 through 058627, with times of day reflecting 16:46 through 16:52. Not included in the cash register receipts are receipts numbered 058620 through 058623, with times of day reflecting 16:10 through 16:45. With the missing numbered-cash register receipts included, a total of 12 transactions were completed, but only eight transactions were offered and admitted into evidence. No explanation was presented for the missing eight transactions. Taking into consideration the overwhelming evidence of the purchase of the Budweiser product by Mr. Maxie, not having a receipt is insufficient to show that the beer-purchase transaction did not occur. Moreover, the evidence is clear and convincing that the beer-purchase transaction did occur. The product purchased at Respondent's establishment by Mr. Maxie was a can of beer, a Budweiser product, a Bud Light. At the time of hearing, Mr. Rodriguez was 76 years of age and had owned Respondent's establishment for 36 years. He is Respondent's agent. Mr. Rodriguez speaks Spanish. At the time of hearing, an interpreter was provided for him. Mr. Rodriguez denies that he saw Mr. Maxie in Respondent's establishment and denies that he sold any beer to Mr. Maxie. Mr. Rodriguez failed to realize to whom he sold the can of beer. At the time Mr. Maxie purchased the can of beer from Respondent's establishment, Mr. Rodriguez was engaged in a conversation with another gentleman. Mr. Rodriguez did not ask Mr. Maxie any questions or ask for his identification. Mr. Maxie said nothing to suggest that he was 21 years of age or older. As a matter of fact, no evidence was presented that any conversation took place between Mr. Maxie and Mr. Rodriguez. The evidence further suggests that Mr. Rodriguez paid very little attention to Mr. Maxie even at the time of the purchase of the beer. Mr. Rodriguez did not knowingly and willfully sell the can of beer to a minor, i.e., Mr. Maxie. Mr. Rodriguez was negligent and failed to exercise reasonable diligence in preventing the sale of the can of beer to Mr. Maxie. No prior disciplinary action has been taken against Respondent by Petitioner.
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 Lake Supermarket, Inc., d/b/a Lake Supermarket, violated Subsection 562.11(1)(a), Florida Statutes; Imposing a fine of $1,000.00 payable within a time deemed appropriate; and Suspending the license of Lake Supermarket, Inc., d/b/a Lake Supermarket, for seven days. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of December, 2002. COPIES FURNISHED: Chad D. Heckman, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Valentin Rodriguez, Jr., Esquire Valentin Rodriguez, P.A. 318 Ninth Street West Palm Beach, Florida 33401 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Peter Williams, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Danny Stoops, Agent Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 400 North Congress Avenue, No. 150 West Palm Beach, Florida 33401
Findings Of Fact Based on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact: On September 10, 1984, the Petitioner received an application for a Series 4-COP, SRX Alcoholic Beverage License from Respondent Club Lido of Gainesville, Inc. On the above date, the Petitioner issued a new temporary Series 4-COP, SRX license to the Respondent pending investigation of the application. The application was submitted signed by Richmond Smith who represented himself as the president, secretary, treasurer, and sole stockholder of Respondent. The application was subsequently approved and the Respondent was issued License Number 11-00786SRX, Series 4-COP on October 1, 1984, to be utilized at a location designated as 233 West University Avenue, Gainesville, Alachua County, Florida. During the year 1985, Division of Alcoholic Beverages and Tobacco Investigator William L. Cooter, Sr., received complaints from various restaurant owners in Alachua County, that Respondent was not operating as a bona fide restaurant, inferring that alcoholic beverage sales at Club Lido exceeded 49 percent of the gross sales. Additionally, Investigator Cooter had visited the premises on numerous occasions and had observed that only small quantities of food items were being served on the premises of Club Lido. In response to the above complaints and on the basis of his personal observations, Investigator Cooter, on September 18, 1985, proceeded to the premises of Respondent and requested a review of the Respondent's food and alcoholic beverage sales. The request for records was made to Richmond Smith, President of Club Lido. On the above date, Smith responded that the records were not on the premises and that Investigator Cooter would be required to subpoena the records if he wished to examine them. Accordingly, Investigator Cooter issued an Official Notice to Richmond Smith on behalf of Club Lido which required production of the sales records by October 4, 1985. The Respondent failed to produce its sales records as of October 4, 1985. The Respondent, as of the date of formal hearing, had still failed to produce its sales records. On November 15, 1985, Investigator Cooter, along with Investigator Donald O'Steen, proceeded to the premises of the Respondent in order to inspect its equipment, supplies, and patron accommodations. The investigators found a minimal quantity of food on the premises. There was not a sufficient amount of food products to serve full course meals to 100 or more patrons on the premises of Respondent on November 15, 1985. There were not adequate seating accommodations to seat and serve full course meals to 100 or more patrons on the premises of Respondent on November 15, 1985, in that only 94 chairs and bar stools were present on the premises. The investigators also noted that there was no employee designated as a "chef" or "cook" on the premises and that approximately two- thirds (2/3) of the silverware needed to serve 100 or more patrons had not been unpackaged. On July 18, 1986, the Respondent terminated active business operations based on the unprofitability of the business. Richmond J. Smith, was a Respondent in Case No. 78- 338, Division of Administrative Hearings, Department of Business Regulation Case No. 3-77-66A, wherein violations of Rule 7A-3.14 and 7A-3.15, Florida Administrative Code, relating to the maintenance of food and beverage records relative to a SRX Alcoholic Beverage License were alleged. The above violations were settled by Stipulation and the licensee paid civil fines relative thereto.
Recommendation Based upon all of the foregoing, it is RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking the Special Restaurant Alcoholic Beverage License of Respondent. DONE AND ENTERED this 19th day of September, 1986, in Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed by the Clerk of the Division of Administrative Hearings this 19th day of September, 1986. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Charles G. Brackins, Esquire Suite B 920 N.W. 8th Avenue Gainesville, Florida 32601 Mr. Richmond Smith Club Lido of Gainesville, Inc. 233 West University Avenue Gainesville, Florida 32601 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Thomas A. Bell, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether petitioner's application for an alcoholic beverage license should be denied because of the direct or indirect interest of John Lee Johnson, a person allegedly lacking good moral character.
Findings Of Fact In May, 1982, petitioner Betty Jean Johnson applied for a 2 APS (beer and wine) alcoholic beverage license to be used in connection with a business known as Johnson's Corner Grocery, 1400 North J. Street, Pensacola, Florida. On her application, petitioner indicated that she owned the business and that no other person had a direct or indirect interest in the business. (R-1) Prior to the petitioner filing her application, John Lee Johnson, her husband, had applied for a beverage license for the same location under his own name. When he failed to disclose his criminal history on the application, his application was denied and he was charged with the crime of filing a false official written statement. On May 12, 1982, he was convicted by the County Court of Escambia County. (Testimony of Baxley; R-3) John Johnson's filing of a false official statement supports an inference that he lacks good moral character. Petitioner did not present evidence sufficient to rebut or negate this inference. Contrary to petitioner's assertion, John Johnson has a direct or indirect interest in Johnson's Corner Grocery. He owns the underlying real property. He signs, and is authorized to sign, checks on the business account of Johnson's Corner Grocery. The business's utilities, light, water, and gas accounts are all in his name. (Testimony of Baxley, Johnson, Kelly; R-4) Petitioner, however, manage's the day-to-day operations of Johnson's Corner Grocery. On her application, she indicated that she had purchased the business for $80,000, with $25,000 down, and $55,000 financed by the Barnett Bank. She now admits that the $25,000 down payment was provided by John Johnson, her husband, and that he also co-signed the $55,000 note and mortgage. Her application, however, does not disclose Mr. Johnson's participation in the purchase and financing of, the business. (Testimony of Johnson; R-1, R-4) On November 9, 1982, three days before hearing, Mr. Johnson leased the Johnson's Corner Grocery property to petitioner for $675.00 per month for three years. The handwritten lease, which was not signed in the presence of two subscribing witnesses, states that Mr. Johnson will not be "responsible for . . . the operations of . . . [the] business." This assertion is rejected as unworthy of belief in light of his extensive involvement in purchasing and setting up the business, and his continuing access to its funds. (P-1)
The Issue The issue for consideration at the hearing was whether Respondent's alcoholic beverage license issued by the State of Florida should be disciplined because of the misconduct alleged in the various charges listed in the Notice to Show Cause filed in this case.
Findings Of Fact At all times pertinent to the issues herein, Petitioner held Florida 2- COP alcoholic beverage license number 26-2036, for his establishment, known as the Dynasty, located at 140 Soutel Drive, Jacksonville, Florida. This license was for the sale and consumption on premises of alcoholic beverages only. In addition, a license was issued by the City of Jacksonville to the Continental Club, c/o Grady Stroy, to operate a dance hall and night club at the same address. Respondent did not have a restaurant license or a license to operate any type of public food service establishment during the time in question. On February 25, 1983, Respondent entered into an agreement in writing with three other individuals, Grady Stroy, John Gibson, and Bobby Wade, whereby each of these latter three would invest with Respondent for an equal partnership in the Continental Club. Thereafter, in April 1983, Respondent officially changed the name of his club from Dynasty to Continental Club. In reality, all three outside partners, Stroy, Gibson, and Wade, each invested at lest $3,000.00. At no time prior to the incidents involved in this hearing, did Respondent disclose to DABT that those three individuals had an interest in his beverage license nor did he notify Petitioner that the name of the club where his license was being used had been changed from Dynasty to the Continental Club. Sometime after June 1983 and the incidents described herein, Respondent applied for a transfer of his license from himself along to himself and his above-named partners. For reasons not pertinent to this hearing, this application was denied. On June 26, 1983, Deborah Powell, in response to a citizen's complaint that alcoholic beverages were being improperly sold on Sunday, entered the Respondent's establishment in an undercover capacity. She observed a table at the door at which admission charges were being collected, and when she got inside, she saw many people who she thought were underage being served what, to her, appeared to be alcoholic beverages. There is no evidence, however, that anyone under the authorized drinking age was drinking alcoholic beverages. Those she looked for food being served and for some means of food preparation there, she found none in evidence. All she could find was a jar of sausages, a bun warmer, and some potato chips. Section 412.402 of the Ordinance Code of the City of Jacksonville, Florida, in effect on June 26, 1983, a Sunday, permits the sale of alcoholic beverages for consumption on the premises only in motels or hotels having 100 or more guest rooms; properly licensed restaurants; airport lounges; fish camps; and private clubs. Respondent's establishment does not fall within any of the above permitted categories. At approximately 9:30 that same night, other officers of the Sheriff's vice squad accompanied by DABT agents entered Respondent's club. When Officer Hall entered the crowded bar, he had the lights turned up and he and other officers began checking the driver's licenses of the patrons to insure they were of age. To do this, they set up a station at the door and had the patrons come out one by one. A check of the driver's license of each patron revealed 20 who were underage. These individuals' names, addresses, and dates of birth were recorded by Officers Hall and another. The minors in the club at the time, who are listed in the charges pertinent to this hearing are: (1) Loraine Doles DOB-Sep 19, '65 age 17 (2) Frederick A. Hayes DOB-Nov 18, '65 age 17 (3) Terry L. Jones DOB-Mar 18, '65 age 17 (4) Jocelyn F. Prince DOB-Mar 15, '66 age 17 (5) Irene D. Reed DOB-Jul 10, '66 age 16 (6) Yolanda D. Williams DOB-Jul 24, '65 age 17 (7) Arabella Washington DOB-May 25, '67 age 16 (8) Sandra D. Hodges DOB-Nov 9, '65 age 17 (9) Ava M. Gardener DOB-Aug 11, '65 age 16 In sworn written statements made to agent Lachman on July 7 and 8, 1983, in Jacksonville, all admitted to being in Respondent's establishment on June 26, 1983, but all deny purchasing or consuming alcoholic beverages while there. None was asked for identification or proof of age before being admitted. Respondent was present at the club at the time all this took place. In a sworn voluntary written statement to agent Lachman on June 28, 1983, Respondent admitted that at the pertinent time in question he had a partnership with Stroy, Gibson, and Wade; that he had a dance hall license to operate his club issued by the city; that he did not have a restaurant license nor did he have the appropriate food preparation and serving equipment to permit him to lawfully sell alcoholic beverages on Sunday; and, that at the time in question, there were 16 to 20 persons under the age of 18 in the lounge. This statement was objected to at the hearing by Respondent's counsel who contended that because Respondent was not given a proper warning of his rights to counsel and against self incrimination prior to making it, it was not admissible at the hearing. The statement, on its fact, reflects its voluntary nature and Mr. Lachman testified that while he did not fully advise Mr. Cobb of his right to remain silent, he did advise him that he could voluntarily make a statement. Full advice of a nature sufficient to support admission of an inculpatory statement in a criminal trial is not required to render such a statement admissible in an administrative hearing such as this. As an admission against interest, it is an exception to the rule excluding hearsay evidence and is admissible. It is corroborated as to the presence in the club of underage individuals by the written statements of those individuals which though themselves hearsay evidence, are admissible to explain or corroborate other admissible evidence such as here. In any case, Respondent offered no evidence to contradict or rebut any of the evidence offered by the Petitioner.
Recommendation In light of the fact that this series of incidents constitutes the first recorded or reported instance of disciplinary action, severe penalty is not indicated. Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Respondent, Mose Cobb, Jr., be fined $250.00 for each of the twelve violations established, for a total of $3,000.00, and that his 2- COP alcoholic beverage license, number 26-2036, be suspended for six months. DONE AND ENTERED this 13th day of November 1984 in Tallahassee, Florida. ARNOLD H. POLLOCK 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 13th day of November 1984. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Courtney Johnson, Esquire 215 Washington Street Jacksonville, Florida 32202 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco, Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Recommendation Based upon the foregoing Finding Of Facts and Conclusions Of Law, it is recommended that petitioner Department of Business Regulation, Division of Alcoholic Beverages and Tobacco,enter a final order: Holding respondent Clarece Hicks d/b/a Sand-spur Saloon guilty under the third charge in the Notice To Show Cause; Imposing a civil penalty of $500; and Dismissing the other charges in the Notice To Show Cause. Jurisdiction is retained for purposes of the ruling on the Division's Motion For Costs And Attorneys Fees, served February 25, 1985, filed simultaneously with this Recommended Order and for purposes of determining the Division's reasonable expenses, including attorney fees. RECOMMENDED this 12th day of March, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 12th day of March, 1985.
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Mehreen Enterprises, Inc., held license number 23-21339, Series 2APS, authorizing it to sell alcoholic beverages on the premises of a business known as Super Stop Food Store #2, located at 9260 Hammocks Boulevard, Miami, Dade County, Florida (hereinafter "the licensed premises"). Syed Abdul Qadir (Qadir) was, and is, a shareholder of the Respondent corporation, and the manager of the licenses premises.1 On March 1, 1997, at or about 8:00 p.m., Richard Stangl (Richard), date of birth December 7, 1976, and 20 years of age at the time, entered the licensed premises, retrieved a 32 ounce bottle of Red Dog beer from a vertical cooler, and proceeded to the counter where he paid Qadir for the beer and left the premises. At the time, Qadir did not request to see any identification as proof of legal age, nor did he ask Richard his age. As Richard drove away from the store he was intercepted by the police, who were engaged in an investigation of the premises. Confirming Richard's age and the possession of an alcoholic beverage,2 Richard was returned to the licensed premises where he and Qadir were placed under arrest.3 Respondent does not dispute that the foregoing events occurred. Rather, it contends that it took reasonable precautions to avoid serving an underaged person and should not, therefore, be penalized for the subject sale. Given the proof, Respondent's contention has merit. While Richard was less than 21 years of age at the time, the proof demonstrated that his appearance was such that an ordinary prudent person would believe he was of legal age to purchase alcoholic beverages.4 The proof further demonstrates that Richard frequented the licensed premises on a regular basis over a three month period, and that he routinely purchased (approximately 30 times) alcoholic beverages during that period. Initially Qadir inquired as to his age, which Richard stated to be 21, and requested identification, which Richard presented in the form of a driver's license consistent with that age. Qadir continued to request identification for a time but, as Richard appeared regularly at the store, and began to complain, he ceased requesting identification. Given the repeated assurances by word and identification card that Qadir had received regarding Richard's apparent age, Qadir's failure to continue to request identification was not unreasonable.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Action. DONE AND ENTERED this 18th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1997.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that respondent be found guilty of violating Subsection 562.12(1), Florida Statutes, and that she be given a $100 fine to be paid within fifteen days after the entry of a final order in this cause. DONE and RECOMMENDED this 28th day of October, 1983, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER, 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 28th day of October, 1983. COPIES FURNISHED: James N. Watson, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Irene B. Wright 1655 East 21st Street Jacksonville, Florida 32206 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue This case concerns the issue of whether the Respondents' beverage license should be suspended, revoked or otherwise disciplined for permitting their licensed premises to be used for the purpose of prostitution and for gaining profit from that prostitution. At the formal hearing, the Petitioner called as witnesses, Beverly Fraley, Alfred Stone, and Raphael Grulau. The Respondents presented no evidence. The Petitioner offered and had admitted over the objection of the Respondent, one tape recording of conversations which occurred inside the licensed premises as a part of the undercover investigation by the Hillsborough County Sheriff's Office. Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that these proposed findings and conclusions are inconsistent with the findings and conclusions contained in this order, they were considered by the Hearing Officer and rejected as not being supported by the evidence or as being unnecessary to the resolution of this cause.
Findings Of Fact At all times material to this proceeding, Katherine J. and Guy H. Sutton were the holders of a valid, current beverage license No. 39-1792, Series 2COP. This license was issued to a licensed premises called Guy's Tavern located on Highway 301, South, in Riverview, Florida. On May 12, 1983, Detective Beverly Fraley of the Hillsborough County Sheriff's Office, went to the licensed premises in an undercover capacity to investigate possible prostitution activity. On this particular evening, Detective Fraley was accompanied by two other detectives of the Hillsborough County Sheriff's Office in a backup capacity. Prior to entering the licensed premises, Detective Fraley was fitted with a body bug for the purpose of recording any conversations that she might have in the licensed premises during the course of the investigation. When Officer Fraley arrived, the two backup detectives were inside the licensed premises shooting pool. Upon entering the licensed premises, Officer Fraley went to the bar and ordered a drink. After obtaining her drink, she was approached by a white male, who called himself "Stogie." While talking with Stogie, another white male, who called himself "Turkey" approached Officer Fraley from behind and placed his arms around her. She had never met Turkey before. Officer Fraley pushed Turkey away and said "Keep your hands off the merchandise." Shortly after her encounter with Turkey, Officer Fraley began shooting pool with Stogie and the two undercover detectives. After a short time, she left the licensed premises with Detective Grulau and after a few minutes the two of them reentered the licensed premises. After reentering, Officer Fraley went to the ladies' rest room and when she came out, she was called over to the bar area by the owner, Guy Sutton, who was behind the bar. As Officer Fraley approached the bar, Mr. Sutton stated, "If you're going to fuck here you've got to pay me." Officer Fraley asked what he meant and he told her that she would have to pay him $5.00 for every trick" she took out of the bar. "Trick" is a slang or street term used to describe an act of prostitution. Mr. Sutton then identified himself as the owner and said that the other women in the bar also paid. Officer Fraley then gave Mr. Sutton a $5 bill. After paying Mr. Sutton, Officer Fraley turned to the bartender, Irene Springer, who was present during this conversation and asked if in fact the other women in the bar were required to pay. Irene Springer stated that the other women in the bar did in fact have to pay $5.00 per trick and a group of white females sitting at a table near the bar responded, "That's right honey." Later that evening, Officer Fraley left with the other undercover detective. When they returned, Guy Sutton was in the pool room area. Officer Fraley intentionally did not go over to Sutton. Shortly after she returned, Sutton came over to her and told her that she owed him another $5.00. He then told her that she would be better off paying him $25.00 per week rather than $5.00 per trick. He also stated that she had the potential to make $300 or $400 per week in his place. Guy's Tavern has a reputation in the community as a bar where prostitutes can be picked up.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered revoking Respondents' beverage license No. 39-1792, Series 2COP. DONE and ORDERED this 30th day of December, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 30th day of December, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The matters presented for consideration concern the two-count Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, against the Respondent, Bland Corporation, which trades as Grace's Place. Count One (1) of that Complaint alleges that beginning May 15, 1977, through November 16, 1979, the Respondent failed to disclose the names and addresses of persons interested directly or indirectly with its business for which a beverage license had been issued and that in doing so, the Respondent acted contrary to Section 561.17, Florida Statutes. More specifically, the Complaint alleges that one Grace Sherman had an undisclosed interest in the licensed premises. Count Two (2) of the Administrative Complaint alleges that the Respondent, on or about May 15, 1977, failed to comply with the order of the Director of the Division of Alcoholic Beverages and Tobacco dated April 15, 1977, in that Grace Sherman failed to divest her interest in the Respondent's beverage license and this was contrary to Section 561.11, Florida Statutes, and Section 561.29, Florida Statutes.
Findings Of Fact This action is here presented by way of a Notice to Show Cause/Administrative Complaint filed by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, against the Respondent, Bland Corporation, which trades as Grace's Place, 2502 North Albany Avenue, Tampa, Florida. The terms and details of the allegations may be found in the issues statement of this Recommended Order. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is a State agency charged with regulating those persons within the State of Florida who hold beverage licenses issued by the Petitioner. This responsibility includes the requirement that the Petitioner take administrative action against those licensees believed to have violated the terms and conditions of their 1icensurezzz. In pursuit of this responsibility, the allegations as set forth herein were brought against the Respondent, Bland Corporation, a Florida corporation, Beverage License Number 39-537, Series 4- COP. The Bland Corporation held the subject beverage license in the beverage license year, October 1, 1976, through September 30, 1977, using the trade name, Ace Lounge. In the course of that year, the trade name was changed to Grace's Place and the Respondent has continued to do business under the name Grace's Place up to and including the time of the administrative hearing in this cause. On April 15, 1977, the Corporation was solely owned by Darlene K. Cowans and was operating under the business name, Ace Lounge. At that time a stipulation and settlement was consummated between Ms. Cowans with the accompanying signature of the present counsel for the Respondent, Mr. Levine, and signed by the petitioner in the person of its Director. This stipulation and implementing order settled the pending administrative charges against the licensee. The first charge related to an allegation that the Respondent had a person, namely, Grace Bland Sherman, who was directly or indirectly involved in the Respondent's business and that Mrs. Sherman had an undisclosed interest in that business, contrary to Section 561.17, Florida Statutes, and Rule 7A-2.14, Florida Administrative Code. There was a second Count in that complaint document which alleged that the Respondent had relinquished management and control of the licensed premises to the same Mrs. Sherman, in contravention of Rule 7A-3.17, Florida Administrative Code. The stipulation in its operative parts stated that the Respondent would pay a fifteen hundred dollar ($1,500.00) civil penalty within fifteen (15) days of the date of the stipulation or, upon failure to do so, an automatic suspension of fifteen (15) days would take effect. There was additional language in the stipulation for penalty which stated: "Licensee further agrees to the divesture[sic] of interest in this license of Grace Bland Sherman within thirty (30) days of receipt of this stipulation approved by the Director." (A copy of this Stipulation and the Statement of Charges may be found as the Petitioner's Composite Exhibit No. 4 admitted into evidence.) In examining the latter provision within the Stipulation, the details of what the parties intended in effectuating the purposes of the divestiture of interest which Grace Bland Sherman might have in the license was not spoken to by the Petitioner in the present hearing and the complaint allegations do not fill this void. (Grace Sherman is an individual who has been required to serve a probationary term in connection with a court disposition in the United States District Court, Middle District of Florida, which probation was concluded in February, 1980. The particular violation for which this probationary term was given to Grace Sherman was not shown in the course of the hearing.) Grace Bland Sherman gave testimony and that testimony establishes that Mrs. Sherman was acting as a bookkeeper for the Respondent on April 15, 1977, and continued to serve in that capacity at the time of the hearing. Her duties included and now include daily bookkeeping, daily preparation of receipts, coordination of the payment of payroll taxes and sales taxes, and the preparation of bank deposits for the business. Following the April 15, 1977, stipulation, Darlene K. Cowans, who was the sister of Grace Sherman, sold her 100 percent controlling interest in the Bland Corporation to Marlon Lewis, the son of Grace Sherman. Marlon Lewis paid Darlene K. Cowans five thousand dollars ($5,000.00) cash with a balance of seventy-eight thousand dollars ($78,000.00) due and owing to be paid from profits of the licensed premises in exchange for the control of the assets of the Corporation. A copy of the stock assignment may be found as Petitioner's Exhibit No. 5. The stock assignment took place on June 14, 1977, and the Petitioner allowed Marlon A. Lewis to be substituted as the President, Secretary, Treasurer and owner of the Bland Corporation for purposes of the Corporation holding the subject beverage license. A copy of the application for change of name, officers and ownership, together with Certificate of Incumbency and Declaration of Stock Ownership and license investigation papers may be found as the Petitioner's Composite Exhibit No. 3 admitted into evidence. The substitution of officers and ownership took place in 1977 and at the time of the hearing Marlon Lewis remained as the President, Director and owner of the Corporation, with Marjorie Lewis serving as Vice President and Treasurer, and Vedus McCray serving as the Secretary. The business is managed by Sallie M. Hubert. (Marlon Lewis has other employment and is not involved with the matters of routine management of the licensed premises.) The principal operating bank account of the Corporation is conducted through the Southeast Bank of Tampa, in Tampa, Florida. Those persons listed above as officers and manager of the Corporation are empowered to write checks on the corporate account of the Respondent, together with Grace Sherman, the bookkeeper. A copy of the authorization for signatures may be found as Petitioner's Exhibit No. 6 admitted into evidence. Petitioner's Exhibit No. 36 admitted into evidence is a copy of other signature cards related to the operating account and the right to withdraw funds from corporate savings accounts. Grace Sherman receives a salary from the Respondent and the Petitioner's Composite Exhibit No. 7 contains a number of salary checks issued on the above referenced Southeast Bank of Tampa account, for the period November 27, 1977, through September 26, 1979. Some of these checks here issued by Grace Sherman and some were issued by other individuals within the corporate organization. There are several other checks in this series of exhibits. One of those checks is a ten dollar ($10.00) check written to the Secretary of the State of Florida for the purpose of paying a filing fee for the 1978 Annual Report for Cowans Realty. The remaining two checks in this series relate to checks issued by Grace Sherman for the payment to the Tampa Bay Buccaneers, one of those checks indicating that it is for "Bucks tickets". Each of the two remaining checks is in the amount of three hundred twenty dollars ($320.00). No further explanation of the reason for expenditures related to the several checks was made during the course of the hearing. The Bland Corporation pays for life insurance and medical insurance for the benefit of Marlon A. Lewis on policies issued by Bankers Life Company. These moneys for payment are deducted from the operating account of the Petitioner in the Southeast Bank of Tampa. A copy of the payment drafts and other matters related to the policies may be found as Petitioner's Composite Exhibit No. 8. Grace Sherman is the beneficiary of the life insurance policy. The Respondent pays for a life insurance, disability and double indemnity policy for the benefit of Grace Sherman. This policy is with the Wabash Life Insurance Company and deductions are made from the aforementioned operating account to effectuate payment for the premiums. The beneficiary for the life insurance aspect of this policy is Marlon Lewis. A copy of the policy and premium payment drafts may be found as the Petitioner's Composite Exhibit No. 9 admitted into evidence. In addition, the Corporation through the same operating bank account, pays for a medical policy for the benefit of Grace B. Sherman, including major medical of up to twenty-five thousand dollars ($25,000.00). A copy of the policy and bank drafts for payment may be found as Petitioner's Composite Exhibit No. 10 admitted into evidence. This policy is as issued by American States Insurance Company. In the years 1977, 1978 and 1979, the Respondent employed the Bookkeepers Business Service Company to keep its books in the way of profit and loss statements. The arrangement for these services was made by Marlon Lewis and the routine coordination for these services was through Grace Sherman, the bookkeeper of the Corporation. The services continued until such time as the Bookkeepers Business Service Company unilaterally discontinued the service due to a management decision unrelated to any disagreement with the Respondent. The profit and loss statements for the month of October, 1978, entered by the bookkeeping service and found in Petitioner's Composite Exhibit No. 11, do not reflect a two hundred dollar ($200.00) cash withdrawal from the Corporation's operating account in the Southeast Bank of Tampa. This check is written by Grace Sherman and indicates that the purposes were "quarters for weekend". On November 28, 1977, Marlon Lewis, representing Bland Corporation on that date referred to as Bland, Inc., and Grace Sherman were granted a bank loan by Southeast Bank of Tampa for purposes of consolidating the personal debts of Marlon Lewis and Grace Sherman. This loan was issued to the Respondent, Bland Corporation, and seven thousand dollars ($7,000.00) of Marlon Lewis's personal debts and fourteen thousand eight hundred dollars ($14,800.00) of personal debts of Grace Sherman were retired. The amount of loan to the borrower, Bland Corporation, referred to as Bland, Inc., was twenty-one thousand eight hundred dollars ($21,800.00). The arrangement for the new loan obligated the Respondent Corporation to allow draws from its operating business account at the Southeast Bank of Tampa, in the amount of four hundred sixty-three dollars and nineteen cents ($463.19) for a period of sixty (60) months and in fact those drawals have been made. The details of this financing and examples of debit charges to the operating account of the Respondent Corporation and the lending institution may he found in the Petitioner's Composite Exhibit No. 17 admitted into evidence. On May 12, 1978, Bland Corporation in the person of Marlon A. Lewis with Grace Sherman as guarantors borrowed twenty-four thousand four hundred ninety-four dollars and sixteen cents ($24,494.16) for the purpose of purchasing a 1978 Mercedes Benz automobile. By this arrangement, the bank required security through the assignment of certain savings accounts which were the property of Grace Sherman. The automobile had been selected by Grace Sherman and a 1976 Cadillac automobile, which was her property, had been used in trade. At present, the automobile is primarily used by Grace Sherman. It is also used by the Respondent Corporation's manager and by the owner, Marlon Lewis. Petitioner's Exhibits Nos. 30 and 31 admitted into evidence are papers dealing with the purchase of the automobile from Precision Motor Cars of Tampa, Florida, and the Petitioner's Composite Exhibit No. 18 admitted into evidence is a copy of the promissory note and assignment of savings deposits and other matters related to the loan. The insurance on the Mercedes Benz automobile was initially written by Eastern Underwriters listing Grace Sherman as the insured as opposed to Bland Corporation, the true owner of the automobile; however, this problem occurred due to certain confusion in the office of Eastern Underwriters and was not due to any improper motives on the part of the members of Bland Corporation or Grace Sherman. The exhibits dealing with this insurance coverage may be found as Petitioner's Exhibits 32 through 35 admitted into evidence and Respondent's Exhibits 2 through 4 admitted into evidence. On August 14, 1979, Sallie M. Hubert, the manager for the Respondent/Licensee, paid a twenty-five dollar ($25.00) membership fee in a private club, the Copper Door, and this membership was issued in the name of Grace Sherman. The check in payment may be found as Petitioner's Exhibit No. 25 admitted into evidence, and the membership card may be found as Petitioner's Exhibit No. 24 admitted into evidence. Grace Sherman had prior to the time of the payment of the membership fees in the Copper Door paid for an individual membership in a private club known as the Cypress Club, and the amount of that payment was fifty dollars ($50.00). The check in payment may be found as Petitioner's Exhibit No. 26 admitted into evidence. Both of the private club memberships mentioned above were drawn on the corporate account of the Bland Corporation referred to before and the purpose of those memberships was for the entertainment of Grace Sherman and Marlon Lewis. Grace Sherman, at the insistence of Marlon Lewis, made arrangements to have Mrs. Sherman's mother's house fumigated and the payment on the installment contract which financed the fumigation service was made on the corporate account of the Bland Corporation and was subsequently reimbursed by Marlon Lewis. Exhibits dealing with this arrangement for service may be found as Petitioner's Composite Exhibits 27 and 28 admitted into evidence. In the application form which is petitioner's Exhibit No. 3, in responding to the question related to the disclosure of the names of any of the persons directly or indirectly interested in his business, Marlon Lewis indicated "N/A". Therefore, Grace Sherman was not shown to have any direct or indirect interest in the license which was held naming Marlon Lewis as the primary officer and the owner of the Bland Corporation. Likewise, Grace Sherman was never required by the present ownership of the Respondent Corporation or by any requirement of the agency proven herein, to register her fingerprints with the District Office of the Division of Alcoholic Beverages and Tobacco in connection with her association with the current principal in the license, Marlon Lewis.
Recommendation Upon the consideration of the facts in this matter and in view of the conclusions of law reached, it is RECOMMENDED that the charges against the licensee be DISMISSED. 4/ DONE AND ENTERED this 18th day of August, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1980.
