The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice To Show Cause and Administrative Actions filed in each of these consolidated causes and, if so, what disciplinary action should be taken, if any.
Findings Of Fact In May of 1992 Petitioner received an application for the transfer of an alcoholic beverage license, license number 60-05383. That license is a series 2-COP license, authorizing the limited sale and possession of alcoholic beverages, only beer and wine, on the premises. The application requested the transfer of the license to Samul Luc and Erick Martial d/b/a Universal Restaurant, 700 Datura Street, West Palm Beach, Palm Beach County, Florida. That application was denied because Martial had a disqualifying narcotics conviction of March 16, 1989. Luc and Martial were notified of that disapproval by letter dated November 4, 1992. Thereafter, Martial and Luc met with Captain Deborah Gray, the district supervisor of Petitioner's West Palm Beach office. She specifically advised Luc and Martial that Martial could have no financial interest at all in the business and could not be listed on the license or even in the lease of the licensed premises. She advised them that Martial could only be a salaried employee. In December 1992, Luc filed a sworn application for that license. This time, the applicant was listed as Samul Luc d/b/a Universal Restaurant, 700 Datura Street. Only Luc's name appeared in that application, and no other person was listed as having an interest in the business. In particular, Martial was not listed as an applicant or as someone having an interest in Universal Restaurant. Respondent paid the $100.00 fee for a temporary license with a check drawn on the First Union National Bank of Florida. The face of the check indicated that the account holder was Erick Martial d/b/a Universal Restaurant. Thereafter, whenever a problem arose regarding Universal Restaurant, it was always Erick Martial who came in to see Captain Gray. Captain Gray met with Erick Martial three or four times. The only meeting attended by Luc was the first meeting with Captain Gray at which she explained to both Martial and Luc that Martial could have no financial interest in the business. Accordingly, Captain Gray opened an investigation to ascertain if Martial did have an interest in Universal Restaurant, the licensed premises. The checking account used by Respondent to pay for his temporary license was opened on June 3, 1992, under the names of Samul Luc and Erick Martial d/b/a Universal Restaurant. The account's signature card was updated on August 18, 1993, and thereafter continued to include the names and signatures of Samul Luc and Erick Martial. That account has remained open and active through the time of the final hearing in this cause. On January 27, 1993, Special Agent Charlene Self went to the licensed premises to investigate the possible undisclosed interest of Martial. Luc was not present. Self asked to speak to the person in charge, and Martial said that he was that person. He further advised her that he was Luc's partner in the business. Self told him that he was not qualified to be a partner in the business, and Martial said that he was not aware of that. On August 3, 1993, Special Agent James Griffin went to the licensed premises to conduct an inspection. In the course of his inspection, he discovered and seized a partially-full bottle of vodka from behind the bar. The label on the bottle clearly identified the bottle as containing vodka, a distilled spirit, and Griffin's examination verified that the bottle contained vodka, a beverage not permitted to be sold or possessed under a 2-COP series license. Martial came in and identified himself to Griffin as a co-owner of the establishment. Martial told Griffin that the bottle of vodka was his personal bottle and that he knew that the beverage license of Universal Restaurant was for beer and wine only. Griffin returned to the premises on August 25, 1993, at the request of the West Palm Beach Police Department after being advised that Police Officer Tureaud had discovered a bottle of whiskey at the licensed premises. In the course of Griffin's inspection, he discovered and seized a three-quarters full bottle of Haitian rum. The label on the bottle clearly identified the bottle as containing rum, a distilled spirit, and Griffin's examination verified that the bottle contained Haitian rum, a beverage not permitted to be sold or possessed under a 2-COP series license. During that inspection, Martial came in and again identified himself as a co-owner of the restaurant. In response to Griffin's inquiries regarding the presence of the Haitian rum, Martial stated that the rum was used in cooking. Griffin then asked to see the restaurant's menus to see which food items called for rum in the cooking process, but Martial advised him that there were no menus listing food items that included rum as an ingredient.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Revoking Respondent's alcoholic beverage license number 60-05383, Series 2-COP, and Assessing against Respondent a civil penalty in the amount of $3,000.00 to be paid by a date certain. DONE AND ENTERED this 31st day of May 1994 in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 31st day of May 1994. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mr. Samul Luc Universal Restaurant 700 Datura Street West Palm Beach, Florida 33401 John J. Harris, Acting Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner’s application to transfer Alcoholic Beverage License No. 3900441/4COP should be approved.
Findings Of Fact Based on the demeanor and credibility of the witnesses, in consideration of the oral and documentary evidence adduced at the hearing, and on the entire record of this proceeding, the following facts are found: Petitioner is an individual. At some time in the past, Petitioner, Ms. Hudson, Mary Pease, and Scott Wetmore incorporated as Peace and Love Enterprises, Inc. (P&L). P&L holds Alcoholic Beverage License No. 3900441/4COP (beverage license) issued by the Division. The Division is the state agency charged with the administration (including licensing), regulation, and enforcement of Florida’s alcoholic beverage laws pursuant to section 20.165(2)(b) and chapters 561 through 568, Florida Statutes (2018).3/ All applications filed with the Division are subject to investigation pursuant to section 561.18. Applications for the transfer of an alcoholic beverage license are considered pursuant to section 561.32. Ms. Scott is currently the Division’s senior management analyst II, over the Tampa, Fort Myers, and Orlando district offices. Ms. Scott supervises the processing and reviewing of applications for alcoholic beverage licenses, tobacco licenses, transfers of licenses, and permits. Once an application for the transfer of an alcoholic beverage license is submitted to the Division, it is reviewed for specific information. The Division looks at the named current license holder to ensure that the signature on the application matches the name of someone authorized to sign the application. The Division verifies that the application information is complete on its face, the alcoholic beverage license is current and can be transferred, and there are no “flags” on the license that would prevent a transfer. The Division must determine if the transferee has a current alcoholic beverage license or not. The Division then looks at the person, corporation, or LLC that wants the alcoholic beverage license transferred to it, and conducts background checks on all persons associated with the application. Once all the background checks are completed, then a recommendation of approval or denial is made. If the approval is given, an invoice on the transfer is generated and the applicant is told to pay the fee to complete the application transfer. If there is an intended denial, a notice is sent to the applicant with the reasons stated for the action. Prior to the transfer application, P&L used the beverage license to operate a restaurant/bar, The Manhattan Dolce Bar and Bistro (The Manhattan). Ms. Hudson was the primary force for The Manhattan’s operation on behalf of P&L. Petitioner or Ms. Hudson met an individual, John Clay Weldy, who wanted to get involved in the business. Mr. Weldy became associated with P&L and took actions that made it appear as though he had authority over the beverage license and The Manhattan. No evidence was presented that the P&L Board of Directors, officers, or shareholders conferred any authority on Mr. Weldy to make any P&L decisions or to act on its behalf. Additionally, no credible evidence was presented by Petitioner that the P&L Board of Directors, officers, or shareholders conferred any authority on Petitioner or Ms. Hudson to make any P&L decisions or to act on its behalf. At some point, when Ms. Hudson became too ill to run The Manhattan, Ms. Oliverio became its manager until she was fired by Mr. Weldy. At some point, Ms. Oliverio and her boyfriend attempted to purchase the beverage license from Mr. Weldy, but he made the offer too burdensome for that sale to be completed. On August 15, 2016, Petitioner filed an application to transfer the beverage license from P&L to Petitioner. On August 25, 2016, Beverage Law Institute, Inc. (BLI), filed an application to transfer the same beverage license from P&L to BLI. Ms. Oliverio was not an officer of P&L, and was not familiar with the details of the P&L corporate structure. Further, Ms. Oliverio did not participate in Petitioner’s transfer application. Mr. Housler worked at The Manhattan. Mr. Housler did not have any knowledge of the sale of the beverage license or the attempted transfer of the beverage license. The Division had completed its investigation of Petitioner’s application filed on August 15, 2016, and had signaled its intent to approve it by issuing an invoice for the transfer. However, the invoice had not been paid when the second application to transfer the same beverage license was filed by BLI. On September 7, 2016, the Division issued to Petitioner a Notice of Intent to Deny License, setting forth the following as the grounds for the denial: Authority: 561.18 and 561.32(1)(a), Florida Statutes. Reason: Due to transfer application and supporting documentation submitted to the Division by the Beverage Law Institute on August 25, 2016, the Division is unable to determine whether a bona fide sale of the business has been made such that the licensee may obtain a transfer. On September 7, 2016, the Division issued to BLI a Notice of Intent to Deny License, setting forth the following as the grounds for the denial: Authority: 561.18 and 561.32(1)(a), Florida Statutes. Reason: Due to transfer application and supporting documentation submitted to the Division by Marie Antoinette Rochette on August 10, 2016,[4/] the Division is unable to determine whether a bona fide sale of the business has been made such that the licensee may obtain a transfer. Ms. Hudson testified that a sale of P&L to either Petitioner or BLI had not and has not happened. Ms. Scott assisted Petitioner and Ms. Hudson as they attempted to maneuver the transfer application through the Division’s process. The affidavit of the applicant form fails to list the “DBA” (doing business as) on Petitioner’s August 15, 2016, transfer application, but contains Petitioner’s notarized signature. The affidavit of the transferor form also fails to list the “DBA,” but contains Petitioner’s notarized signature. Ms. Scott testified that although the Division records provided that Petitioner was authorized to sign on behalf of P&L, the transfer application was denied because a second transfer application was received prior to Petitioner’s transfer invoice being paid. In the August 25, 2016, BLI transfer application, the affidavit of the applicant form lists the “DBA” as “ESCROW,” and contains Horace Moody’s notarized signature. The affidavit of the transferor form also lists the “DBA” as “ESCROW” but contains Mr. Weldy’s notarized signature. Ms. Scott testified that the Division records also provided that Mr. Weldy was authorized to sign on behalf of P&L. This transfer application was denied because the first transfer application had been submitted. The two competing interests, each asserting that P&L wanted to transfer the beverage license to different transferees, made it impossible for the Division to approve either transfer application.
Recommendation Based on the forgoing 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 Marie Antoinette Rochette’s application for the transfer of Alcoholic Beverage License No. 3900441/4COP. DONE AND ENTERED this 1st day of May, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2019.
Findings Of Fact Petitioner is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is 201 West, Inc., d/b/a Central City, who is the holder of alcoholic beverage license number 11-00259, Series 4-COP, a "quota license." Respondent's licensed premises is located at 201 West University Avenue, Gainesville, Alachua County, Florida. Craig Cinque is Respondent's sole director and corporate officer. Joseph Cinque, Craig Cinque's father, was formerly Respondent's sole director and corporate officer. Prior to becoming the owner of Central City, Craig Cinque managed the licensed premises on behalf of his father. During this period of time, the Division filed ten separate Notices to Show Cause against Respondent, alleging multiple sales to and consumption of alcoholic beverages by underaged persons. On August 29, 1989, the licensed premises was closed by an Emergency Order of Suspension. The administrative charges arising therefrom were resolved by a Stipulation and Consent Agreement, wherein the Respondent in that case admitted substantially to all of the violations. Craig Cinque individually executed the agreement, admitted responsibility for previous violations, and acknowledged that future violations of a similar nature could result in suspension or revocation of the alcoholic beverage license. The agency has issued numerous Notices to Show Cause against Respondent since the entry of the consent order. However, unproven Notices to Show Cause and unproven counts within any Notices to Show Cause are only unproven accusations, and as such are not probative herein even for purposes of showing "aggravation." Beverage Law Institute is an "approved trainer" under the Responsible Vendors Act, having been approved by the Petitioner as such. Petitioner certified Respondent Central City as a certified Responsible Vendor under the Act, on April 13, 1990. See, Subsections 561.701-561.706 F.S. Of the 483 nondistributor alcoholic beverage licensees in Alachua County, only 94 have been certified by Petitioner as Responsible Vendors. Of those 94, only 13 hold "4-COP" licenses, the category of license held by Respondent, which permits liquor, beer, or wine for consumption on premises or in a sealed container. Prior to the events of the instant Notices to Show Cause, and continuing through the 14-month period of the Notices to Show Cause and beyond, Respondent was engaged in a voluntary program designed to teach employees not to serve alcoholic beverages to underaged persons. Many of the materials therefor were provided by Beverage Law Institute. The training program and procedures involved multiple ID checkers at the front door. Also at the front door, wristbands to signify and quickly identify patrons of legal drinking age were issued. Once snapped on a customer's wrist, the band itself was stamped at a right angle across the customer's wrist to prevent or at least inhibit the wristband's transfer to an underage patron and to prevent a patron bringing in a counterfeit or "ringer" wristband. All patrons, regardless of age, received a stamp directly on the wrist to identify that they had paid their admission fee. Security personnel circulated inside the licensed premises checking drinks and wristbands, and waitresses were also instructed to check on drinks already purchased by customers. The training programs and procedures also involved Respondent's policy manual regarding IDs, extensive training and testing of employees, frequent oral reminders to employees concerning the law and concerning licensee policy, sporadic staff meetings regarding policy, videotaped instruction programs, provision of and instructions to employees to use an "ID Checking Guide" at the front door and at every internal bar within the licensed premises, confiscation of fake or questionable IDs at the door, 1/ and use of warning handbills given out to customers. Upon receipt, the handbills proclaiming the licensee's "of age only" policy were usually immediately discarded by customers. Some employees looked upon their training with more enthusiasm than others. Some employees considered the policy and training all for show. Most employees complied regularly with the requirements for training, review, and instructions. A few were lax in their compliance and had to be urged to attend staff meetings or to retest. In addition to all this, from the time the Responsible Vendor tests were available, all employees except two cashiers were tested according to the requirements of the Responsible Vendor Act and within the time frames provided therein. Every underage operative who testified admitted she or he had been "carded" at the door and that none had been issued wristbands. The parties stipulated that all of the individuals named in the four Notices to Show Cause (except for those alleged to have sold or given alcoholic beverages) were under the legal drinking age on the dates indicated by the respective Notices to Show Cause and that although each of these individuals "was actually in possession of alcoholic beverages as plead (sic), there was no evidence that any of the alcoholic beverages were obtained from Respondent's employees, agents, or servants." The stipulation listed the underage persons of the Notices to Show Cause but did not employ the term "consumption" which was specifically used only in the second Notice to Show Cause (GA11890496). Petitioner put on no witnesses as to "consumption." Likewise, Petitioner did not have admitted in evidence any confiscated alcoholic beverages alleged to have been sold by Respondent's agents/employees, nor did Petitioner present any laboratory reports to establish that any substance sold was alcohol. The only evidence of alcohol content is discussed infra. With regard to Craig Cinque's attitude and Central City's compliance with the Responsible Vendors Act, the testimony of Eileen Tenly and of William Cooter has been weighed and considered. Ms. Tenly is a totally noncredible witness whose testimony demonstrates an "axe to grind," and whose candor and demeanor is unpersuasive of anything except her animosity for Mr. Cinque. Petitioner's Investigator William Cooter, however, testified credibly that after having numerous conversations with Mr. Cinque on the subject of underage sales, Mr. Cinque stated that he was not worried about losing his alcoholic beverage license because he could get another one in his mother's name. On the other hand, Mr. Cooter, by his own testimony, has been invited by Mr. Cinque to instruct and has, in fact, instructed Mr. Cinque's employees on how to prevent underage drinking. The evidence as a whole, but most particularly that of Prince Miles, Respondent's janitor, who is a credible witness, is persuasive that patrons sometimes smuggle alcoholic beverages onto the licensed premises and that each time the establishment closes, commercial alcoholic beverage containers which are not part of the inventory sold by Respondent must be swept out. Since this smuggling activity must substantially reduce Respondent's profits, it is a logical inference that such smuggling is contrary to Respondent's policy and that Respondent does not encourage or condone it, whether done by adults or minors. I. Notice to Show Cause GA11890374; September 16, 1989 through February 9, 1990; sale to Toombs, Kittles, Goldtrap, and Ormsbee by Green, Halladay, Howell, and Grimes and possession by Peters, Conf, Kelly, Garcia, Fernandez, Shiskin, Brejhanan, Benz, Yawn, and Plettner All of the violations charged in Notice to Show Cause GA11890374 arose prior to Respondent's becoming a certified Responsible Vendor on April 13, 1990. On September 16, 1989, Ryan Conf and Alejandra Peters were each under the age of 21 and in actual possession of alcoholic beverages inside the licensed premises as pled. On September 19, 1989, Central City bartender David Green sold the Division's underaged operative, Bridgette Toombs, a liquid beverage in a long- neck, factory-produced 12-ounce bottle labelled "Michelob Dry." At that time, the licensed premises was not busy and Mr. Green noted that Ms. Toombs had no wristband. He therefore checked Ms. Toombs' underage ID and instructed her that since she was old enough to drink, she should go get a wristband. This transaction was observed by Petitioner's agent, Ms. Pendarakis, but Ms. Pendarakis did not overhear the conversation. After delivering a sample of the liquid beverage to Ms. Pendarakis in the ladies' room, Ms. Toombs crossed in front of Mr. Green's bar on her way to exit the licensed premises. Mr. Green sent word to Ms. Toombs by another Central City employee that he wanted to see her. Ms. Toombs complied with Mr. Green's request and showed him her underage ID once more. At that point, Mr. Green recognized his error in thinking that Ms. Toombs was 21 or over and called over several other Central City employees, all of whom viewed the ID showing Ms. Toombs was actually two months short of 19 years old. Mr. Green was not arrested until after the ID was passed around, so it may be inferred that his recognizing his mistake was not the result of any confrontation with Petitioner's agents or law enforcement officers or due to his perception that he had been "caught." Indeed, Petitioner's witness, Ms. Toombs, attributed Mr. Green's illegal sale to her as a mistake in subtraction. Mr. Green had previously successfully passed all tests required under the licensee's policy in existence before the Responsible Vendor tests were available. On October 20, 1989, Charlotte Kelly and Alezandro Garcia, who were under the age of 21, were each in the actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1989, Cesar Fernandez, who was under the age of 21, was in possession of an alcoholic beverage inside the licensed premises. On the same date, underage operative Megan Kittles was inside the licensed premises. She was not wearing a wristband, and her hand was stamped indicating that she was under 21. She first approached a white male bartender who checked her and refused to serve her. She then ordered a rum and coke from Respondent's bartender, Craig Halladay. Mr. Halladay did not check Ms. Kittles' ID and served her a liquid beverage which Mr. Szabo of the Division testified that he had identified by smell as containing alcohol. No one saw the drink mixed, and Mr. Szabo admitted that he did not know what kind of alcohol the drink contained. He stated that he "would not swear it was rum." Mr. Szabo also was not aware until formal hearing that Respondent sold any nonalcoholic mixed drinks. Although the evidence is weak, it is persuasive that Ms. Kittles was served alcohol. Mr. Halladay successfully passed the licensee's policy test before this incident and the Responsible Vendor test afterwards. Also on October 21, 1989, Matthew Goldtrap, another underage operative, ordered a "Budweiser" and obtained a 12-ounce bottle labelled "beer" from a floor waitress named Shannon Howell. Mr. Goldtrap had no wristband but did have a stamp on his wrist. He gave the container to Investigator Smith. Mr. Szabo then took both of Respondent's employees into custody. Mr. Goldtrap does not drink alcohol. Investigator Smith did not testify, but it is inferred from the description of the beer bottle and the circumstances of the transaction as a whole that Mr. Goldtrap was served an alcoholic beverage. Ms. Howell successfully passed the licensee's test prior to this incident. On January 19, 1990, Scott Shiskin, Michael Brejhanan, and Carolyn Benz, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. On February 9, 1990, Central City bartender Steve Grimes sold Petitioner's 19-year old operative Octavia Ormsbee a liquid beverage. Ms. Ormsbee, who had no wristband on, was first denied a sale of alcoholic beverage at the downstairs back bar after Respondent's bartender there checked her underage ID. Ms. Ormsbee then went to an upstairs bar and ordered a "Bud Light." She was told by Mr. Grimes, a bartender at that bar, that they were out of "Bud Light," and by agreement, a beer bottle labelled "Budweiser" was substituted. Ms. Ormsbee does not drink alcohol and did not testify that what she received from Mr. Grimes was alcohol. The bottle purchased by Ms. Ormsbee was turned over to Officer Byrd of the Gainesville Police Department. Officer Byrd, who is familiar with alcoholic beverages through his own education, training, practice, and experience, identified the contents of the bottle purchased by Ms. Ormsbee as being "beer." Officer Byrd turned the bottle over to Petitioner's agent Cooter. Also on this occasion, Preston Yawn and Eric Plettner, who were under the age of 21, were each actually in possession of alcoholic beverages inside the licensed premises. Mr. Grimes had successfully passed the licensee's policy test prior to this incident. All of the underaged operatives who testified concerning this Notice to Show Cause testified that Petitioner's adult operatives forbade them to drink (consume) what they were sold and that they did not consume any. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the minors actually named in the Notice to Show Cause constituted their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, mere possession does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 2/ Therefore, Petitioner has only established that on September 19, 1989 Respondent's bartender sold an alcoholic beverage to Petitioner's underage operative Bridgette Toombs; that on October 21, 1989, Respondent's bartender sold an alcoholic beverage to the Petitioner's underage operative Megan Kittles; that also on October 21, 1989, Respondent's floor waitress sold Petitioner's underage operative Matthew Goldtrap an alcoholic beverage; and that on February 9, 1990, Respondent's bartender sold the Division's underage operative Octavia Ormsbee an alcoholic beverage. One of these sales was clearly a mistake and two other operatives had to go to two bartenders each before an illegal sale was made. II. Notice to Show Cause GA11890496; June 8, 1990 through June 16, 1990; sale to Wearner by Edge and to Seligman by Lemberger and Bergine and possession by Tetstone, Lockey, Klug, Skipper, and Bissell On June 8, 1990, Jennifer Tetstone and Amy Lockey, who were under the age of 21, were in actual possession of alcoholic beverages inside the licensed premises. On June 16, 1990, Ann Klug, Shana Skipper, and Michael Bissell were in actual possession of alcoholic beverages inside the licensed premises. Also on June 16, 1990, Central City bartenders Michael Edge, Michael Bergine, and Robert Lemberger, respectively, sold each of the Division's underage operatives Kathy Wearner (who did not testify but who was stipulated to be underage) and Charles Seligman an alcoholic beverage. Neither underaged operative wore a wristband or was requested to produce an ID for purposes of the respective sales. As of date of formal hearing, the Respondent continued to employ these same bartenders. All of these bartenders had successfully completed the Responsible Vendor test before these incidents. Mr. Edge also had passed the licensee's earlier policy test. The underaged operative, Kathy Wearner, asked Michael Edge for "a Budweiser" and was sold liquid in a "Budweiser" beer bottle inverted in a drinking glass. Officer Rockey of the Gainesville Police Department convincingly described the liquid that came out of the bottle as beer, an alcoholic beverage. He turned the materials confiscated over to an unnamed agent of Respondent and has not seen them since. On the same date, Central City bartender Robert Lemberger sold a 12-ounce bottle labelled "Budweiser" to 18- year-old operative Charles Seligman. Mr. Seligman was at all times without a wristband and bearing a stamp on his hand. Mr. Seligman delivered the bottle he received from Mr. Lemberger to Officer Posey of the Gainesville Police Department who had watched the entire transaction. Mr. Seligman later purchased a 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to Officer Posey. Mr. Seligman purchased a third 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to one of Petitioner's agents, Ernest Wilson. Mr. Seligman does not drink alcohol. Agent Wilson does drink alcohol and testified that the bottle Charles Seligman handed him was, in fact, beer. Although Agent Wilson also testified that Mr. Seligman's first name was "Tom" and that Mr. Seligman had purchased a rum drink, nonetheless, Mr. Wilson was convincing that the bottle handed him by Mr. Seligman did, in fact, contain beer, an alcoholic beverage. Officer Posey convincingly described the first bottle he received from Mr. Seligman as containing beer, an alcoholic beverage, and upon all the circumstances, the undersigned infers that the second bottle given Officer Posey also contained beer. All the underaged operatives who testified on this Notice to Show Cause testified that they were forbidden to drink (consume) what they were sold and did not do so. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the other minors actually named in the Notice to Show Cause constitutes their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 3/ Therefore, Petitioner has established only that on June 16, 1990 Respondent's personnel sold one alcoholic beverage to the Petitioner's underage operative Wearner and three alcoholic beverages to the Petitioner's underage operative Seligman. III. Notice to Show Cause GA11900209; September 22, 1990 through September 29, 1990; service to, or consumption by Stanton, Coody, Willis, and, Torres On September 22, 1990, Amy Stanton and Janet Coody, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. On September 29, 1990, Betty Willis and Jose Torres, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 4/ IV. Notice to Show Cause GA11900254 October 19, 1990 through November 16, 1990; 9 counts possession by Harriett, Ortega, McKinney, Nelson, Smith, Winter, Joyner, Cooke, Sammon; "giving" by Blackwell and Strawser On October 19, 1990, Steven Harriett, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1990, Jamie Ortega, who was under the age of 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 20, 1990, Brian McKinney, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On November 15, 1990, Karen Nelson, Hollie Smith, Michael Winter, and Julia Joyner, all underage, were in actual possession of an alcoholic beverage inside the licensed premises. On November 16, 1990, Denise Cooke and Teresa Sammon, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 5/ No evidence was introduced to establish the allegations of Counts 4 and 6 of Notice to Show Cause GA11900254, alleging "giving."
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic and Beverages and Tobacco enter a Final Order dismissing Notices to Show Cause GA11900209 and GA11900254; finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890374, imposing a total of $1750 in civil fines therefor; and finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890496, imposing a total of $2000 in civil fines therefor. RECOMMENDED this 28th day of June, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1991.
Findings Of Fact 6. A thorough review of the entire record of this matter reveals that the Findings of Fact contained in the Recommended Order are based on competent, substantial eviclence and that the proceedings on which the findings were based complied with the essential requirements of the law. 7. The Division hereby adopts and incorporates by reference the Findings of Fact as set forth in the Recommended Order.
Conclusions This matter comes before me for final Agency Order. The issue before me is whether and to what extent Respondent’s alcoholic beverage licenses are subject to penalties pursuant to Sections 212.14, 212.15, 832.05, 561.29(1)(a) and (e), Florida Statutes, and Rule 61A-2.022 Florida Administrative Code. Whether the Respondent’s Aicoholic Beverage Licenses are subject to revocation pursuant to Section 561.29, Florida Statutes. 3
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.
The Issue Whether petitioner's application for transfer of an alcoholic beverage license should be granted, or denied on the ground that the license has been revoked.
Findings Of Fact On January 25, 1977, Armando Calo, through counsel, filed a Notice of Lien with DABT stating that he was a bona fide mortgagee on an alcoholic beverage license (4-COP, lic. no. 23-1901) held by the Intimo Lounge, Inc., 1601 Collins Avenue, Miami Beach, Florida. Citing Section 561.65, Florida Statutes, he enclosed a copy of his chattel mortgage and a check payable to DABT in the amount of $5.00. (P-1) By return letter dated February 4, 1977, C. L. Ivey, Jr., DABT's Licensing Supervisor, acknowledged receipt of Mr. Calo's Notice of Lien and stated that it would be made part of the Intimo Lounge, Inc. license file. At that time, administrative license revocation proceedings were pending against Intimo Lounge, Inc. So Mr. Ivey sent a copy of his February 4, 1977 acknowledgment letter to DABT's Miami Office, and included this notation: P.S. John: You need to immediately notify Attorney Solomon's [Calo's attorney's] office if and when an order to revoke is issued. He will then go to court to seek a judicial transfer. (P-2) On March 22, 1977, Charles A. Nuzum, DABT's Director, executed an order revoking Intimo Lounge, Inc.`s alcoholic beverage license. (R-1) Eight days later, on March 30, 1977, Armando Calo sued Intimo Lounge, Inc., seeking to foreclose his chattel mortgage on its alcoholic beverage license. By letter of the same date, counsel for Mr. Calo, citing Section 561.65, Florida Statutes, notified DABT of the filing of the foreclosure action; he also asserted that Mr. Calo had no knowledge of or participation in the causes for which the Intimo Lounge, Inc. beverage license was revoked. Copies of subsequent pleadings filed in the action were sent to DABT's legal department. DABT thus knew the suit was filed and was aware of its continued progress. (Testimony of Barone; P-3, P-4, P-11) The Circuit Court of Dade County ultimately entered a final judgment of foreclosure in Mr. Calo's favor. On August 17, 1979, pursuant to such judgment, the Clerk of the Court sold the Intimo Lounge, Inc. beverage license, at public sale, to intervenor Rene Valdes, 1710 N.W. 7th Street, Suite 7201, Miami, Florida for $25,000. Notice of the sale was published in the Miami Review, a newspaper circulated in Dade County. On August 28, 1979, the Clerk issued a Certificate of Title pursuant to Chapter 45, Florida Statutes. This Certificate certified that Intimo Lounge, Inc.`s alcoholic beverage license (4-COP, license no. 23-1901) had been sold to Rene Valdes on August 17, 1979, and that "no objections to the sale have been filed within the time allowed for filing objections." (Testimony of Valdes; P-5, P-6) Although DABT was aware of the protracted mortgage foreclosure litigation involving the Intimo Lounge, Inc. beverage license --which it had earlier revoked -- it never protested or sought to block the foreclosure action. It was not a party to the action; neither did it attempt to become one. (Testimony of Barone, Valdes) In September, 1979, a month after the judicial foreclosure sale, Nathaniel Barone, counsel for Intimo Lounge, Inc., wrote R. B. Burroughs, Jr., Secretary of the Department of Business Regulation, asking what steps were necessary to keep the Intimo Lounge, Inc. beverage license viable. An internal memorandum suggests that DABT was, at first, unprepared to answer that question and preferred, instead, to delay answering until an application for the license was filed. But, on October 4, 1979, Harold F. X. Purnell, the Department's General Counsel replied on behalf of Secretary Burroughs: It is the Division's position that the . . . license has been and presently is revoked pursuant to the actions pre- viously taken by [DABT]. Further, that in the absence of an order of appropriate jurisdiction entered in a proceeding to which the Division is a party we are powerless to transfer such license. (Testimony of Barone; P-7, P-10) Meanwhile, Rene Valdes, notified DABT of his purchase of the Intimo Lounge, Inc. beverage license and asked that it be held in escrow while he found a suitable purchaser and location. When DABT refused, Mr. Valdes petitioned the court, which had rendered the foreclosure judgment, to require DABT to process and transfer the license. The court denied his petition, at least in part, because DABT was not a party to the proceeding. After the court hearing, Mr. Valdes, together with his attorney, Charles Kelly, and DABT's counsel, Mr. Purnell, met outside the chambers and discussed their next step. Mr. Kelly discussed seeking a mandamus ordering DABT to issue the license. Mr. Purnell suggested, instead, that Mr. Valdes find a location and purchaser for the license, then submit an application to DABT -- something which Mr. Valdes had not yet done. Although Mr. Purnell did not assure them that the application would be approved, both Mr. Valdes and Mr. Barone gained an impression that it would be. 2/ Mr. Valdes, following Mr. Purnell's suggestion, found a location and buyer, then applied for a transfer of the license. DABT's denial resulted in this proceeding. (Testimony of Barone, Valdes) Under Section 561.65(1), Florida Statutes (1977), a lender licensed by the state holding a lien on an alcoholic beverage license had the right to enforcement of his lien against the license within 12 days after any order of revocation, provided it was revoked for causes which the lienholder had no knowledge and did not participate. If the lienholder purchased the license at foreclosure sale, he could operate under it or transfer it to a qualified person. Until August 17, 1980, it was DABT's long-standing practice and policy to make no distinction between licensed and unlicensed lenders (lien-holders). It allowed both licensed and unlicensed lienholders to file notice of liens against beverage licenses and honored the subsequent transfer of the license if the lien was enforced within 12 days of revocation. This practice was abruptly changed on the basis of an agency legal opinion. On August 17, 1980, one month before Gui-Dom filed its application, DABT's General Counsel rendered a legal opinion limiting Section 561.65 relief to lenders licensed by the state. After that date, until 1981, when the legislature removed the "licensed lender" language of Section 561.65, DABT applied Section 561.65 literally and only accepted liens filed by licensed lenders. (Testimony of LaRosa; P-13) But in October, 1980, DABT did not deny Gui-Dom's application for transfer of the Intimo Lounge, Inc. license because Armando Calo, the lienholder, lacked a lender's license. Instead, the application was denied because the license had been earlier revoked. As later explained by Barry Schoenfeld, DABT's Chief of Licensing: 2 [DABT] felt at the time that . . . there really was no license, that the license had already been revoked, and that there was no license for the court to sell [to Valdes]. (P-13, p. 25). But Section 561.65 specifically permits liens, under specified conditions, to survive license revocation. When asked to explain DABT's position in light of Section 561.65, Mr. Schoenfeld replied, "I don't know that I can explain it." (P-13, p. 16) Neither could Mr. Schoenfeld adequately explain why, in cases similar to this, DABT has approved license transfers while, here, they have not. (P-13, p. 23) It was not until after the denial of Gui-Dom's application that DABT contended that Section 561.65, Florida Statutes (1977), provides no relief because Armando Calo was not a licensed lender. (P- 9, P-13). Rene Valdes, a beverage license broker, operates a business known as "Beverage License, Inc." He specializes in obtaining and transferring alcoholic beverage licenses for clients and has a working knowledge of the Beverage Law, including DABT rules and practice. When he purchased the Intimo Lounge, Inc. license at the judicial sale, he did not know that it had been revoked by DABT. He did, however, know that there was license revocation litigation between Intimo Lounge, Inc. and DABT. He also knew that DABT had issued an emergency order suspending Intimo Lounge, Inc.'s license; and he knew that there were circuit court foreclosure proceedings involving the license. Yet he failed to ascertain the status of the license -- either by checking the files of DABT or the circuit court. But even if he had discovered that the license had been revoked, under DABT's long-standing practice and interpretation of Section 561.65, it would have made no difference. The license would have "survived" revocation because Armando Calo had timely enforced his lien. And it could have been sold at a judicial sale and transferred to a new qualified purchaser. (Testimony of Valdes, Harris; P-13) DABT has provided no record foundation for its abrupt discontinuance of prior agency practice and policy in August, 1980, a policy which allowed both licensed and unlicensed lien holders to file and timely enforce liens against beverage licenses. This policy enabled a lien to survive license revocation; and the license, which had been revoked earlier could then be transferred by judicial sale. The only explanation given for the change in policy, a change which DABT now relies on as cause for denying Gui-Dom's application, is that the agency changed its legal interpretation of Section 561.65 (1977). (Testimony of LaRosa; P-13)
Recommendation Based on the foregoing, it is RECOMMENDED: That Gui-Dom's application for transfer of alcoholic beverage license no. 23-1901, series 4-COP, be granted. DONE AND RECOMMENDED this 3rd day of February, 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 3rd day of February, 1983.
The Issue The issues are: (1) whether Respondent violated Section 562.02, Florida Statutes (2007),1 by unlawfully possessing certain alcoholic beverages on its licensed premises which were not authorized to be sold under its license; (2) whether Respondent violated Subsection 561.14(3), Florida Statutes, by purchasing or acquiring alcoholic beverages for the purpose of resale from persons not licensed as distributors; and (3) if so, what penalty or administrative fine should be imposed.
Findings Of Fact Respondent is, and was at all times relevant hereto, the holder of alcoholic beverage License No. 62-10299, Series 2-COP, which permits the sale of beer and wine, but no other alcoholic beverages, for consumption on the premises. Petitioner seeks to impose sanctions on the license of Respondent. Mr. Pagini owned and operated Latin American Café, a restaurant located at 3780 Tampa Road, Oldsmar, Florida. The restaurant serves Latin American and South American foods and desserts, some of which contain alcoholic beverages in preparation of said food. At all times relevant to this proceeding, the menu for Latin American Café stated that only one type of liquor was used for cooking. Respondent was placed on the Division's "No Sale" list on August 21, 2007, for failure to renew its license. As a result of being on the "No Sale" list, distributors were prohibited from selling alcoholic beverages to Respondent. Nevertheless, as discussed below, a receipt dated August 23, 2007, shows that a distributor sold alcoholic beverages to Respondent. Due to Respondent's being placed on the "No Sale" list, Casey Simon, a special agent with the Division, conducted an inspection of Latin American Café on November 21, 2007. During the inspection, Agent Casey discovered beer and liquor on the premises. The beer was located in a cooler behind the bar at the front of the premises, and the liquor was located in the manager's office and in the kitchen cupboards. The liquor discovered on Respondent's premises on November 21, 2007, consisted of the following: (a) one, one-quart bottle of Mr. Boston Crème De Cassis; (b) one, 750-millimeter bottle of Cinzano Rosso Vermouth; (c) one, 750-millimeter bottle of Chevas Regal Whiskey; (d) one, 750-millimeter bottle of Sambuca Di Amare; (e) one, 1.75-liter bottle of Heritage Triple Sec; (f) one, 250-millimeter bottle of Chasqui Licor De Café; (g) one, 750-millimeter bottle of Truffles Liquor; (h) one, one-liter bottle of Sambroso Licor De Café; and (i) one, .75-liter bottle of Heritage Rum. Respondent contends that seven of the nine kinds of suspect liquor found on the premises were used for cooking, mostly desserts, at the business. The remaining two liquors found on the premises, Chevas Regal Whiskey and Sambuca, were for Mr. Pagani's personal use. The Chevas Regal Whiskey was a present that had been given to Mr. Pagini, and at the time of the inspection, the whiskey was in a box in his office. The Sambuca Di Amare is a "digestive" liquor made in Italy and was for Mr. Pagini's personal use. Although most of the liquor was found on Respondent's premises during the inspection, Respondent's menu does not list any of the suspect liquors as an ingredient in any of the menu items. The beer discovered on Respondent's premises on November 21, 2007, consisted of the following: (a) 41, 12-ounce bottles of Bud Light, with a born date of September 2007; (b) six, 12-ounce bottles of Budweiser; (c) 27, 12-ounce bottles of Miller Lite; (d) 12, 12-ounce bottles of Heineken; and (e) 19, 12-ounce bottles of Corona. The Bud Light's "born date" of September 2007, is the date in which the beer was manufactured. Thus, it can be reasonably concluded that beer with a "born date" of September 2007, cannot be purchased prior to that month. During the November 21, 2007, investigation, the Division's agent requested invoices for the beer found on the premises. Respondent produced a receipt from Sam's Club dated November 16, 2007, which reflected the sale of various items to a "member," identified, presumably, by a membership number. Among the items purchased were other documents provided to Agent Simon which showed that Latin American Café was the member on the November receipt. Next to the name of each kind of beer was the number "24" which, presumably, indicated the number of bottles of beer that were purchased. Mr. Pagini testified that many of the items purchased from Sam's Club on November 16, 2007, including the Bud Light and the Heineken, were for personal use. At this proceeding, Respondent introduced into evidence copies of two receipts which reflect that it purchased alcoholic beverages from two authorized distributors, J.J. Taylor Distributors Florida, Inc. ("J.J. Taylor Distributors") and Great Bay Distributors, Inc. ("Great Bay Distributors"). The receipts were dated August 9, 2007, and August 23, 2007, respectively. The receipt from J.J. Taylor Distributors dated August 9, 2007, reflects that Respondent purchased the following alcoholic beverages: (a) 24, 12-ounce bottles of Becks beer; (b) 24, 12-ounce bottles of Braham beer; (c) 24, 12-ounce bottles of Heineken beer; (d) 24, 12-ounce bottles of "Lite" beer; and (e) 24, 12-ounce bottles of Presidente. The receipt from Great Bay Distributors dated August 23, 2007, reflected the purchase of the following alcoholic beverages: (a) 24, 12-ounce bottles of Budweiser beer; (b) 24, 12-ounce bottles of Corona beer; (c) 24, 12-ounce bottles of Modesto Especial; and (d) 24, 12-ounce bottles of Negro Modesto. Despite Respondent's providing receipts from distributors, no plausible explanation was provided to establish when and from whom the Bud Light, discovered on Respondent's premises on November 21, 2007, was purchased. The receipts from the distributor were dated about one month prior to the Bud Light's born date of September 2007. The suspect Bud Light has a born date of September 2007, which is after the dates of the distributor receipts and after Respondent was placed on the "No Sale" list. No evidence was offered to establish where the suspect beer, Bud Light, was purchased or acquired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: (1) finding that Respondent, Latin American Café and Market, Inc., d/b/a Latin American Café, violated Section 562.02, Florida Statutes; (2) finding that Respondent did not violate Subsection 562.14(3), Florida Statutes; (3) imposing an administrative fine of $1,000.00 for the violation of Section 562.02, Florida Statutes; and requiring the fine to be paid within 30 days of the final order. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2009.
The Issue Should Respondent's alcoholic beverage license be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At times pertinent to this proceeding, Respondent held alcoholic beverage license No. 63-02541, series 2APS, for an establishment known as Green and White Texaco (the licensed premises), located at 3501 Cleveland Heights Boulevard, Lakeland, Florida. The Department opened an investigation of the licensed premises after an arrest was made by the Lakeland Police Department related to alleged sales of alcoholic beverages to underage persons by Respondent's employees. James Carl Clinard was identified as the underage Investigative Aide No. 97032 in the Administrative Action filed against Respondent by the Department. On December 5, 1997, James Carl Clinard was 18 years of age (date of birth May 23, 1979) and his appearance on December 5, 1997, was that of a person under 21 years of age. On December 5, 1997, Clinard was working with Officer Leron Strong and Lt. Nelson in an attempt, as an underage Investigative Aide, to purchase an alcoholic beverage from the licensed premises. Before beginning work on December 5, 1997, Clinard was instructed by Strong and Nelson that he was not to attempt to deceive anyone as to his age or appearance. Clinard's identification (a valid State of Florida driver's license which indicated his age to be 18 years) was checked by Lt. Nelson and Officer Strong and found to be legitimate. Clinard's photograph on his identification and his appearance on December 5, 1997, were similar and not misleading as to his age listed on his identification. Clinard was only allowed to carry into the licensed premises his identification and the money furnished by the Department for the purchase of the alcoholic beverage. Sometime around 6:20 p.m. on December 5, 1997, Clinard entered Respondent's licensed premises. Both Strong and Nelson waited outside the licensed premises. After entering the licensed premises, Clinard went to the cooler and selected a bottle of "Bud Light" beer which he brought to the counter. Before selling Clinard the beer, the cashier, Robin Ann Boss asked for and Clinard presented his identification. The cashier sold Clinard the beer, notwithstanding that Clinard's identification showed his age to be 18 years of age. After paying for the beer, Clinard took possession of the beer and exited the licensed premises. Subsequently, Clinard turned the beer over to the Department's agents. Clinard does not remember the cashier giving him a receipt for the beer. Likewise, the agents do not remember Clinard turning in a receipt for the beer. As a result of selling the alcoholic beverage to Clinard, Robin Ann Boss was arrested by Officer Strong. On December 8, 1997, Lt. Nelson mailed Respondent an Official Notice advising Respondent that its employee, Robin Ann Boss, had been "warned or charged" for selling, giving, or serving persons under 21 years of age alcoholic beverages in violation of Section 562.11, Florida Statutes. Crystal Henry was identified as the underage Investigative Aide No. 97028 in the Administrative Action filed against the Respondent by the Department. On January 7, 1998, Henry was 16 years of age (date of birth October 22, 1981) and her appearance on January 7, 1998, was that of person under the age of 21 years. On January 7, 1998, Henry was working with Agent Cleveland McKenzie and Anne Ekstrand in an attempt, as an underage Investigative Aide, to purchase alcoholic beverages or tobacco products from the licensed premises. Before beginning work on January 7, 1998, Henry was instructed by Agents McKenzie and Ekstrand that she was not to attempt to deceive anyone as to her age or appearance. Agents McKenzie and Ekstrand checked Henry's identification (a valid State of Florida driver's license which indicated her age to be 16 years) and found it to be legitimate and found that her identification was not misleading as to her age or her appearance on January 7, 1998. Henry was only allowed to carry into the licensed premises her identification and the money furnished to her by the Department for the purchase of the alcoholic beverage and tobacco product. Sometime around 5:00 p.m. on January 7, 1998, Henry entered the licensed premises. Upon entering the licensed premises, Henry proceeded to the beer cooler and obtained a Bacardi Breezer wine cooler. Henry then walked to the check-out counter with the wine cooler and asked the clerk for a five-pack of Black and Mild Cigars. The sales clerk completed the sale without asking Henry for any form of identification. Henry paid the sales clerk $1.79 for the cigars and $2.09 for the wine cooler. Henry took possession of the wine cooler and cigars and exited the licensed premises. Subsequently, Henry turned the wine cooler and cigars over to Agent McKenzie. Henry does not remember the clerk giving her a receipt for the wine cooler and cigars. Likewise, the agents do not remember Henry turning in a receipt for the wine cooler and cigars. The clerk was identified as Valerie Ann Walker, who was subsequently charged with and arrested for, the sale of an alcoholic beverage and tobacco product to an underage person in violation of Section 562.11, Florida Statutes. A Final Warning was issued to Respondent on January 9, 1998, advising Respondent of the violation and giving Respondent notice that another violation would result in the issuance of an Administrative Action by the Department which could subject Respondent's alcoholic beverage license to formal revocation or suspension proceedings. Enrique Ramos was identified as the underage Investigative Aide No. 97033 in the Administrative Action filed against the Respondent by the Department. On February 17, 1998, Ramos was 18 years of age and his appearance on February 17, 1998, was that of a person under the age of 21 years. On February 17, 1998, Enrique Ramos was working with Agents McKenzie and Ekstrand in an attempt, as an underage Investigative Aide, to purchase alcoholic beverages from the licensed premises. Before beginning work on February 17, 1998, Ramos was instructed by Agents McKenzie and Ekstrand not to attempt to deceive anyone about his age or appearance. Agents McKenzie and Ekstrand checked Ramos' identification (a valid State of Florida driver's license which indicated his age to be 18 years) and found his identification to be legitimate and his identification not misleading as to his age or appearance. Ramos was only allowed to carry into the licensed premises his identification and the money furnished by the Department for the purchase of the alcoholic beverage. At approximately 4:15 p.m. on February 17, 1998, Ramos entered the licensed premises and went to the beer cooler and obtained a six-pack of Budweiser Beer (12-ounce bottles) and approached the check-out counter and placed the beer on the counter. The clerk sold Ramos the beer without checking his identification. Ramos paid the clerk $5.19 for the beer. Ramos took possession of the beer from the clerk and exited the licensed premises where he subsequently turned the beer over to Agents McKenzie and Ekstrand. The clerk was later identified as Ravin E. Bradshaw. Bradshaw was charged with selling an alcoholic beverage to a person under the age of 21 in violation of Section 562.11, Florida Statutes. Respondent's back-up cash register tapes (Respondent's Exhibit number 2) do not reflect a beer sale during the period of time Ramos testified that he purchased the six-pack of Budweiser Beer on February 17, 1998. However, I find the testimonies of Ramos, Agent McKenzie, and Agent Ekstrand to be more credible concerning the purchase of the beer on February 17, 1998, than the back-up cash register tapes or the testimony of Bradshaw, Respondent's clerk and Jung I. Huang, Respondent's manager. The testimony of Respondent's clerks were that they were instructed to "card" or check each alcoholic beverage or tobacco product purchaser's identification to determine if the purchaser was 21 years old or older. However, it was also the practice of Jung Huang and his wife, Yu Chin Lin, a.k.a Michelle, president of Green and White, Inc., to become angry with a clerk who was "carding" every customer. In some instances, both Huang and Michelle would advise a clerk not to card certain customers. Respondent failed to comply with all the training and record-keeping requirements of the Responsible Vendor Program set out in Sections 561.701-561.706, Florida Statutes, notwithstanding the testimony of Jung Huang to the contrary and whose testimony I find lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order suspending Respondent's alcoholic beverage license No. 63-02541, 2APS for a period of seven days and it is further recommended that Respondent be required to pay an administrative fine of $1,000.00 to the Division of Alcoholic Beverages and Tobacco. DONE AND ENTERED this 10th of August, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1999. COPIES FURNISHED: Elsa Lopez Whitehurst, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Tony Dodds, Esquire 825 East Main Street Lakeland, Florida 33801 Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 William Woodyard, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
