The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of s. 562.12, Florida Statutes, pursuant to s. 561.29(1)(b), F.S., as set forth in Notice to Show Cause issued by Petitioner on March 28, 1977. The hearing in this case was scheduled for 9:00 A.M. on December 8, 1977 at Petitioner's business address in Tallahassee, Florida. Notice of Hearing was sent to the Respondent on November 21, 1977 by mail. The notice of hearing was not returned by the Post Office as being undelivered. Neither the Respondent nor any representative in her behalf appeared at the hearing. Accordingly, the Hearing Officer advised counsel for the Petitioner that the matter would be conducted as an uncontested proceeding.
Findings Of Fact The Respondent Margaret P. Muse operates Club 40 located at Midway, Florida, and is authorized to sell beer and wine for consumption on the premises incident to a Class 2-COP license issued by the Petitioner. On August 15, 1976 at approximately 12:05 P.M., Gary Sams, a beverage officer with the Tallahassee field office of the Petitioner, accompanied by a reliable informant, went to the vicinity of Respondent's licensed premises. There, Sams searched the informant and found that he possessed no alcoholic beverages or currency. Sams gave the informant $5.00 and told him to go to the residence immediately east of the licensed premises. The informant entered the house, remained approximately 5 minutes and returned to Sams with a one-half pint unsealed bottle of Calverts Extra whiskey and a twelve-ounce sealed can of Schlitz beer in his possession. The informant told Sams that he had purchased the liquor from one Lou Ethel Palmer for $2.75 and that she had obtained it from a room in the house. Sams and the informant initialed the containers and Sams took them to the evidence room of his agency where they remained until the date of the hearing (testimony of Sams, Petitioner's Exhibit 1). On August 22, 1976 at approximately 10:30 P.M., Sams returned to the premises with the same informant, and followed the same procedures as to a prior search of his person and directions to enter the residence again. Sams observed the informant do so where he remained for a period of time and then returned to Sams outside and turned over a one-half pint unsealed bottle of Calverts Extra whiskey. The informant stated that while in the residence, he had ordered the whiskey from Palmer, but that another female in the house had gone outside to obtain the whiskey. When she returned with it, the informant paid her $2.75 for the same. By the informant's description of the female who had sold the whiskey to him, Sams determined that she was the Respondent Margaret P. Muse. The two men initialed the container and Sams placed it in the evidence room of his agency where it remained until the date of this hearing (testimony of Sams, Petitioner's Exhibit 2) On August 23, 1976, warrants authorizing search of the Palmer residence were obtained by Petitioner. On August 29, Sams and deputy sheriffs of Gadsden County proceeded to the residence in question where they were admitted by Muse. Arrest warrants were served on Muse and Palmer and the premises were searched. In the bedroom several half pints of vodka and whiskey were found and seized. Two cases of 12-ounce cans of Schlitz beer were found in an outbuilding adjacent to the house and also seized. Muse stated at the time that the beer was being stored in the outbuilding for the purposes of sale at the licensed premises (testimony of Sams).
Recommendation That the charge against Respondent, Margaret P. Muse, be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida Mrs. Margaret P. Muse P.O. Box 116 Midway, Florida 32343 PETITIONER'S EXHIBIT 1 One half-pint bottle labeled "Calvert Extra" (half full of liquid) One sealed can (12 ounce) Schlitz beer PETITIONER'S EXHIBIT 2 One full unsealed half-pint bottle labeled "Calvert Extra"
The Issue The issue is whether Respondent violated Section 562.02 and Subsection 561.29(1), Florida Statutes (2007), by possessing on May 3, 2008, four bottles of alcohol that Respondent is not licensed to possess on the licensed premises.
Findings Of Fact Petitioner is the agency responsible for regulating alcoholic beverage licenses in the state. Respondent is licensed to possess and sell beer and wine on the premises pursuant to License Number 46-05556, Series 2COP. A random inspection of the licensed premises on May 3, 2008, found four bottles of alcohol that Respondent is not licensed to possess on the premises. The alcohol consisted of: one, 1.75 liter bottle of Kettle One Vodka; two, 750 milliliter bottles of X-Rated Vodka; one, 1 liter bottle of Captain Morgan Rum; and one, 750 milliliter bottle of Tequila 1800 Silver. Petitioner requires each licensee to file a drawing of the licensed premises that, among other things, identifies the location of personal items kept on the premises. Respondent did not identify the bottles of alcohol described in the preceding paragraph as personal items on the drawing that Respondent filed with Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the acts alleged and violations charged in the Administrative Action and imposing an administrative fine of $1,000.00. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 5th day of March, 2009. COPIES FURNISHED: Michael J. Wheeler, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32303 Marcus Beaubrun Sushiyaki, Inc., d/b/a Sushiyaki 1306 Cape Coral Parkway East Cape Coral, Florida 33904 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Cynthia Hill, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Aki-San held an alcoholic beverage license which expired October 1, 1977. Only on January 10, 1978, did Aki-San make application for "delinquent renewal" of its license. In the unlicensed interim, one of respondent's truckdrivers continued to deliver Kirin beer to Aki-San. At all pertinent times, respondent was licensed as a distributor of alcoholic beverages. Respondent employs numerous truckdrivers to distribute alcoholic beverages to some 2,000 licensees under the beverage law. Each driver has a route book containing the license number of each of the customers for which he is responsible. The truck drivers have standing instructions to insure, before delivering alcoholic beverages, that the licensees they serve have renewed their licenses for the year. Posted on a bulletin board on respondent's premises, in October of 1977, was a notice reminding the drivers to ascertain whether their customers' licenses had been renewed.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the notice to show cause issued in this case. DONE and ENTERED this 17th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Clifford Distributing Company 990 S.W. 21st Terrace Ft. Lauderdale, Florida Mary Jo M. Gallay Staff Attorney 725 South Bronough Street Tallahassee, Florida 32304
The Issue The issue is whether Respondent sold an alcoholic beverage to a person under 21 years of age, in violation of Section 562.11(1)(a), Florida Statutes.
Findings Of Fact Petitioner has granted Respondent license number 51- 02167, 1APS, for the sale of alcoholic beverages. Respondent received its first temporary license for the sale of alcoholic beverages on November 24, 1997. The license authorizes Respondent to resell package sales of only beer, as well as other alcoholic beverages under six percent alcohol by volume. Respondent's sole officer and shareholder is Mei-Rong Manley. Respondent operates a gas station at 1201 4th Street West in Bradenton. On the day in question, Ms. Manley was the sole employee present. K. W. was born on February 23, 1983. In March 1999, he was six feet, two inches tall and weighed 160 pounds. Petitioner randomly selected Respondent's store for an undercover purchase. Petitioner had not previously received a complaint that Respondent was selling alcoholic beverages to underage persons. The record does not reveal a prior instance of an underaged sale of alcoholic beverages by Respondent. On March 19, 1999, K. W. entered Respondent's store, walked directly to the beer cooler, and picked up a 12-pack of Budweiser alcoholic beer. He then carried the 12-pack of beer to the checkout counter. Shortly after K. W. entered the store, one of Petitioner's plainclothes agents entered the store, posing as a customer, but secretly observing the situation. There were no other persons in the store besides Ms. Manley, K. W., and the agent. When K. W. reached the checkout counter, he laid down the 12-pack of beer. Ms. Manley stated the purchase price of the beer as $8.55. K. W. gave her a larger sum in currency, and Ms. Manley returned to him the proper change. K. W. then left the store with the beer. He had been in the store 3-4 minutes. At no time did Ms. Manley ask K. W. how old he was. At no time did Ms. Manley ask K. W. to produce identification. Ms. Manley also claims that she was distracted when making the sale to K. W. She alternatively claims that she was concerned that the plainclothes agent was preparing to steal something and that she was engrossed in doing bookkeeping when K. W. approached the counter. The evidence does not support these alternative claims, which are somewhat conflicting. Ms. Manley claims to have believed that K. W. was well past 21 years of age. A native of Taiwan, Ms. Manley has resided in the United States for the past 15 years. Her belief was unreasonable. While making the purchase, K. W. wore a dark Calvin Klein t-shirt and shorts. He is a tall person, but not of considerable weight. Moreover, his youthful face and manner of presenting himself do not suggest that he is over 21 years of age. A diligent merchant of alcoholic beverages could not have mistakenly assumed that K. W. was over five years older than the 16 years that he was at the time of the purchase.
Recommendation It is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of violating Section 562.11(1)(a) and imposing an administrative fine of $1000 and a license suspension of seven days; provided, however, that Respondent may elect to reduce the fine and add to the suspension at the ratio of $50 of fine for one day of suspension, so that, for example, she may eliminate the fine altogether by accepting a suspension of 27 days (7 days provided by rule plus the 20 additional days to reduce the fine to 0). DONE AND ENTERED this 8th day of September, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 8th day of September, 1999. COPIES FURNISHED: Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ruth Nicole Selfridge Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mei-Rong Manley President Sheauray, Inc. 1201 14th Street, West Bradenton, Florida 34205
The Issue The issue presented here concerns the accusation by the Petitioner directed to the Respondent that the Respondent, on or about January 24, 1980, did unlawfully have in her possession or permit or allow someone else to have in their possession, namely, Anthony Lewis Graham, alcoholic beverages, to wit: one partial quart bottle of Smirnoff Vodka, one partial quart bottle of Gordon's Gin and one 200 ml bottle of Gordon's Gin, on the licensed premises and it is further alleged that the substances were not authorized by law to be sold under the Respondent's license, contrary to Section 562.02, Florida Statutes.
Findings Of Fact The Petitioner in this action is an agency of the State of Florida which has as its purpose the regulation of those several licensees who sell alcoholic beverages and tobacco products in the State of Florida. The Respondent, Estelle Collins, is the holder of an alcoholic beverages license issued by the Petitioner, License No. 26-00766, Series 2-APS. This license allows the Respondent to sell beer and wine to be consumed off the licensed premises. The license is issued for the Respondent's premises located at 1152 East 21st Street, Jacksonville, Florida, where the Respondent trades under the name 21st Street Grocery. On January 24, 1980, Anthony Lewis Graham, one of the Respondent's patrons in her licensed premises, removed a box from his automobile which was parked on the street in the vicinity of the licensed premises. He carried the box which contained a partially filled quart bottle of Gordon`s Gin; a partially filled quart bottle of Smirnoff Vodka and a partially filled 200 ml bottle of Gordon's Gin into the licensed premises. These bottles contained liquor, that is, alcoholic or spiritous beverages that were not authorized to be sold at the licensed premises under the terms and conditions of the license issued to the Respondent. The box containing the liquor was carried in while an employee of the Respondent was working in the licensed premises and placed behind the meat counter. The box was left with the top opened. It is not clear whether the employee saw the bottles in the box prior to a routine premises inspection conducted by officers with the Division of Alcoholic Beverages and Tobacco. The inspection took place shortly after Graham had brought the alcoholic beverages into the licensed premises. When the officers entered the premises, they identified themselves to the employee working in the store and this employee left to get the licensee. The employee returned with the Respondent, Estelle Collins, and the officers commenced inspection of the premises. In the course of that inspection, they discovered the aforementioned bottles of alcoholic beverages in the box. They also noted other empty liquor bottles in the area of the meat counter and the service counter within the licensed premises. (There had been another occasion in February, 1979, when the Petitioner's officers had discovered empty gin and vodka bottles in the licensed premises, and this former situation brought about a citation to the Respondent but no penalty action was taken against the Respondent.) No testimony was developed on the matter of the instructions which the Respondent had given to her employees on the subject of keeping unauthorized forms of liquor out of the licensed premises. The only remark which was established by the hearing dealing with the question of keeping those items away from the licensed premises was a statement by Graham, who said that it was not unusual for him to go behind the service counter in the licensed premises. Following this inspection and the discovery of the alcoholic beverages, to wit: liquor bottles in the box, the Petitioner brought the present action against the Respondent.
Recommendation It is RECOMMENDED that the Notice to Show Cause/Administrative Complaint accusation placed against the Respondent, Estelle Collins, d/b/a 21st Street Grocery, License No. 26-00766, Series 2-APS, be DISMISSED. 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: William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. Kennedy Hutcheson, Esquire 341 East Bay Street Jacksonville, Florida 32202
Findings Of Fact Early Mitchell t/a Mitchell's Fish Market holds 1-COP beverage license which authorizes the sale of beer only for consumption on the premises. At the time scheduled for the commencement of the hearing Mitchell was not present and the hearing commenced. Exhibit 1 shows that the notice of the hearing was served upon Mitchell on May 10, 1977. Shortly thereafter Mitchell arrived and the hearing proceeded. On October 5, 1976 a beverage agent accompanied by an officer from the Tallahassee Police Department inspected Mitchell's Fish Market. Inside they found a partially filled bottle of Smirnoff vodka which was seized, duly marked, and presented in evidence at the hearing. A description of the bottle was substituted for the exhibit and Exhibit 2 was returned to the Beverage Division. On March 9, 1977 another beverage officer, on a routine inspection of Mitchell's Fish Market, discovered behind the counter concealed in an open beer case, one partially filled bottle of Smirnoff vodka. The bottle was seized, marked for identification and retained in the custody of the seizing beverage officer until such time as it was produced in evidence at the hearing. A description of the bottle was entered into the record and Exhibit 3 returned to the Division of Beverage.
Findings Of Fact At all times pertinent, Respondent, Wilbert Barrington, d/b/a Barrington Inn (Respondent), has held license number 43- 19, Series 2-COP, for the sale of beer and wine at the Barrington Inn on State Road 59, north of Lloyd, Jefferson County, Florida. Respondent's license does not authorize him to sell gin. December 2, 1984, Respondent sold two 200 ml. bottles of Seagram's Gin at his licensed premises, one to a patron and one to an undercover agent employed by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent has had three prior similar violations. Respondent denied the allegations and testified at final hearing that the Division's undercover agent was not at his licensed premises on December 2, 1984, that he did not sell any gin on December 2, 1984, and that he does not sell gin or vodka at his licensed premises.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended, in view of Respondent's prior violations and testimony at final hearing, that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking alcoholic beverage license number 43-19, Series 2-COP, held by Respondent, Wilbert Barrington, d/b/a Barrington Inn. RECOMMENDED this 16th day of October, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings, The Oakland Building 309 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1985. COPIES FURNISHED: Thomas A. Klein Staff Attorney Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301 Ike Anderson, Esq. P. O. Box 56 Monticello, FL 32344 Richard B. Burroughs, Jr. Secretary The Johns Building 725 S. Bronough Street Tallahassee, FL 32301 Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronorugh Street Tallahassee, FL 32301
Findings Of Fact The Respondent, Edward Lee Howell (Howell), holds alcoholic beverage license number 46-01252, Series 2-COP, for licensed premises located at 2712 Towles Street, Fort Myers, Florida, known as Mr. B's Lounge. Violation of Local Ordinance Lee County Ordinance 76-9, as amended by Ordinance 79-1, provides in pertinent part: All places or establishments within the unincorporated area of the county and lawfully licensed by the State Beverage Department of Florida, may sell or serve, or permit to be sold, served or consumed, any type of alcoholic beverage of any kind whatsoever for consumption both on or off the premises only during the hours of 7:00 a.m. and 2:00 a.m. of the following morning every day of the week, including Sundays. Howell was cited on or about July 1, 1989, for allegedly violating this "hours of sale" ordinance, but he was aquitted in August, 1989. In 1990, Lee County Sheriff's Office (LCSO) Deputy James Nygaard warned Howell a half dozen times not to sell alcoholic beverages after 2 p.m. On or about December 28, 1990, Nygaard cited Howell for allegedly violating the ordinance by allowing a patron to consume alcoholic beverages on the premises after hours. Howell was tried and acquitted because it was not proven that the patron was drinking an alcoholic beverage. After successive reassignments to another patrol zone and to work as a detective, Nygaard was reassigned to patrol the East Zone in January, 1995. Beginning in January, 1995, Nygaard warned Howell twice not to sell alcoholic beverages after 2 p.m. On or about March 11, 1995, Nygaard cited Howell for violating the ordinance. Howell denied the charges, which still were pending in criminal court at the time of the final hearing. Nygaard testified that, this time (in contrast to the December, 1990, charge), he retained a sample of the contents of the container out of which the patron was drinking after 2 p.m. He testified that the sample was tested and found to be an alcoholic beverage. But the evidence shed no light on the extent of Howell's responsibility for the violation (e.g., how long after 2 p.m. the violation occurred, whether the violation was flagrant, whether Howell was even on the premises at the time of the violation or, if not, how diligent he was in training his employees on how to prevent violations of the "hours of sale" ordinance.) Howell denied that he sells or serves or allows alcoholic beverages to be served, sold or consumed in violation of the ordinance. Mr. B's remains open after 2 a.m. and patrons dance and listen to music, but Howell testified that they are not allowed to drink alcohol in the lounge after 2 a.m. Towles Street Near Mr. B's Mr. B's Lounge is in a section of Fort Myers, Florida, where in recent years violent crime increasingly has become an undeniably serious problem to area residents and the LCSO, which is the law enforcement agency having jurisdiction. Towles Street is a two-lane road that runs between Edison Avenue and State Road 82 outside the city limits of the City of Fort Myers. During the evening hours, especially on weekends, large numbers of people park cars in the street and congregate in the area. Some of these people patronize Mr. B's, but many more congregate in the street and on both sides of the street up and down Towles Street in the vicinity of Mr. B's. A good number of these people drink too much and become noisy and violent. (Not all of the drinking takes place in Mr. B's, and not all of what is drunk comes from Mr. B's. Many of these people buy their alcoholic beverages elsewhere, or bring them from home, and drink their alcoholic beverages outside on and along Towles Street.) Many drive at recklessly high speeds up and down the street (when the streets are passable.) Loud music is played from stereos in car driving up and down the street and parked in the street. Some of these people, drunk or not, come to the area with the intention to engage in crime, violence and other disruptive conduct. More and more carry knives and firearms, or keep them in their cars, and many use or threaten to use their weapons. Assaults and armed robberies are common. The area around and including Mr. B's has become known to those who frequent it as a place to go to "hang out" and be a part of this violent scene. The violence, including stabbings and shootings, has become so prevalent that residents of the area who do not participate in the violence are afraid to leave their homes at night and, even in their homes, they are not completely safe from stray bullets. The violence and reputation for violence on Towles Street in the vicinity of Mr. B's has become like no other place in Lee County. One LCSO deputy testified that he has heard more automatic weapon fire on duty at night on Towles Street than he heard during his entire experience as a member of the United States armed forces. Some deputies testified that, especially on weekends, there often are so many cars parked illegally in Towles Street that deputies patrolling the area or responding to complaints have to park their police vehicles on Edison Avenue or State Road 82 and walk in. They believe that, when they are seen approaching, the people congregating in the vicinity of Mr. B's lock their weapons in cars and that many of them enter Mr. B's to avoid the deputies. On occasion, the crowds of people encountered by LCSO deputies on Towles Street do not disperse so readily. Once, two deputies responding to a call for service in the vicinity of Mr. B's were assaulted before reaching the lounge and received injuries, including a broken jaw, requiring medical attention in the hospital. (Howell assisted the deputies in subduing the assailant.) On another occasion, it took deputies approximately an hour to control and disperse the crowd, during which time another call for LCSO assistance had to go unanswered for half an hour. Some of the incidents on Towles Street occur before 2 a.m., but many occur later, after the LCSO patrols have been reduced to a single shift. With fewer deputies on patrol, the violence on Towles Street becomes an even greater problem for law enforcement. By the time backup arrives in response to calls on Towles Street, practically no deputies remain available to patrol or respond to calls for service in the rest of the zone. The Licensed Premises No sketch of the licensed premises was introduced in evidence. The evidence was that Mr. B's faces Towles Street and that the front door opens onto a front step that is separated from the street by an unpaved strip of grass and dirt about seven feet wide. Until very recently, Mr. B's had only four parking spaces and did not have a parking lot. The precise extent of the licensed premises was not made clear from the evidence. During an inspection of the licensed premises on February 23, 1995, DABT Special Agent Odom recovered 141 spent gun shell casings in the vicinity of Mr. B's, including: seventy-four 74 9mm's; three 38 Specials; sixteen 16 357 Magnums; four 45-caliber; three 30-caliber; three 44 Magnum; one 10mm; 2 25- caliber; and nineteen 12 gauge shotgun shell cases. Some of these spent shell casings were recovered between the front door to Mr. B's and Towles Street. Most were recovered within 15 to 20 feet from the lounge building, but some were recovered as far as 20 yards away, including some that were found all the way across Towles Street on the opposite side of the street. Four were recovered under the cushion of a couch inside Mr. B's, but there was no evidence how they got there and no evidence that they were fired inside Mr. B's. Except for these four, it was not proven that any of the spent shell casings actually were recovered from the licensed premises themselves. From February, 1991, through October, 1994, there have been 135 calls for LCSO service arising out of incidents in the vicinity of Mr. B's. Some of the calls reported finding lost property or suspicious persons or were for the purpose of reporting some other information to the LCSO. Many of the calls were for relatively minor offenses, such as disturbances, trespassing, vandalism, nuisances, car accidents and highway obstruction. But many were for more serious crimes such as assaults, use or display of firearms, burglaries and robberies. Although many of these calls were placed from a telephone at Mr. B's, the evidence was not clear which, if any, of the incidents instigating calls actually occurred at Mr. B's. It seems clear that the police records use a reference to "Mr. B's" as as short hand way of describing Towles Street in the vicinity of Mr. B's. Some of the incidents in the vicinity of Mr. B's constituted violent crimes. Since 1988, there have been: two murders; four attempted murders; 11 batteries with a firearm; two batteries with a knife; one sexual battery or attempted rape; one shooting into a vehicle; one robbery with a firearm; and two batteries with a dangerous weapon. Most of these crimes occurred outside of Mr. B's, and the evidence did not prove that they occurred on the licensed premises, or how close to the licensed premises they occurred. One incident that clearly occurred on the licensed premises was a fight that broke out during the early morning hours of February 12, 1995. One person was hit on the head with a claw hammer, and another was stabbed with a knife. After some of the participants left Mr. B's, fighting continued outside on the street. Someone telephoned the LCSO, and when deputies arrived, they witnessed four men kicking another who was lying on the ground behind a car, while approximately fifty other people stood watching. As the deputies approached, a man with a sawed-off shotgun walked up to the man lying on the ground and shot him in the leg. It was not clear from the evidence whether any of the people involved in the incident outside on the street had been patrons of Mr. B's. On or about August 3, 1993, the LCSO investigated an incident in which a patron of Mr. B's was shot while walking out the door of Mr. B's. The victim did not know who shot him or where the shot came from. On or about June 7, 1994, the LCSO investigated an incident involving an alleged sexual battery or attempted rape that occurred in the restroom at Mr. B's. The alleged victim in that case withdrew her complaint, and the case was closed. One LCSO deputy testified that he has received several telephone calls from a pay phone down the street at Edison Avenue reporting assaults and other crimes that allegedly occurred inside Mr. B's and that the victim reportedly was afraid to place the call to the police while still at Mr. B's (for fear of further assault.) But there was no specific evidence about any of these alleged crimes. Although some local residents blamed Mr. B's for the loud music heard in the neighborhood, especially on weekend nights, it was not clear whether the loud music being heard by the local residents actually is coming from Mr. B's, as opposed to being played from car stereos on the streets. The Respondent's Responsibility for the Violence and Noise It was not proven that Howell does anything to condone violence and noise in or around Mr. B's Lounge or that he is protecting criminals from apprehension by the LCSO. To the contrary, almost all of the crime reports to the LCSO from 2712 Towles Street were placed by Howell himself or his employees. Not only has Howell telephoned the police for assistance on many occasions, he also has put himself at risk of physical harm by helping law enforcement officers subdue violent subjects in and around the premises. In addition, Howell employs a bouncer who uses a metal detector to try to insure that no weapons are brought into Mr. B's and denies entrance to certain people known to cause problems. (Surprisingly, given the kind of people who congregate on Towles Street, there also was no evidence sufficient to support a finding of illegal drug use in or about the licensed premises.) One LCSO sergeant recalled an occasion when he confronted Howell about problems in and around Mr. B's and, in the sergeant's opinion, Howell treated him rudely. Howell does not recall the incident. No other law enforcement officer testified to any occasion when Howell was anything but cooperative with law enforcement. There was no evidence that the DABT counseled Howell on measures to take to reduce violence on his licensed premises. For example, the DABT could have required the Respondent to supervise and control the entire licensed premises, including both the building and grounds (including parking lot). The Respondent also could have been required to fully cooperate with law enforcement in its efforts to control crime in the area, including allowing LCSO complete access to the licensed premises. See Section 562.41(5), Fla. Stat. (1993). Instead, the evidence was that the LCSO complained to the DABT about Mr. B's on or about February 20, 1995, that the DABT inspected the premises on February 23, 1995, and that the DABT then initiated the proceedings that led to the issuance of the Emergency Suspension Order on or about March 16, 1995. Since Mr. B's has been under the Emergency Suspension Order, there have been markedly fewer problems for law enforcement and law-abiding residents in the area. The people who had been congregating near Mr. B's and causing problems either have found somewhere else to congregate or have dispersed for the time being. Mr. B's apparently attracted and served as a focal point for these people. It seems that suspending the Respondent's license has had a positive effect on the level of crime in the immediate vicinity. (However, some law enforcement officers seemed to support Howell's opinion that the people causing the problems near Mr. B's eventually will find another place to hang out and cause problems.) Clearly, the LCSO and many of the local residents would like to see Mr. B's closed permanently. But the reduction in violence and loitering after the Respondent's beverage license was suspended does not, in itself, prove that the Respondent was culpably responsible for violence and loitering that occurred while the licensed premises were open and operating. Howell operates a package store, not far from Mr. B's but within the city limits of Fort Myers, and near another lounge. City police regularly patrol the area, and it has relatively few of the problems experienced on Towles Street. A more frequent and visible law enforcement presence on Towles Street also would reduce violence and disturbances there. Five to ten years ago, Mr. B's operated in the same location with fewer problems. In those earlier years, LCSO patrolled the area more frequently. In those days, parking laws were enforced more consistently, and LCSO patrol cars could drive down Towles Street without difficulty. When loiterers were encountered in the street, LCSO required them to either go inside Mr. B's or go home.
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 (DABT), enter a final order: (1) dismissing the charges in the Notice to Show Cause against the Respondent, Edward Lee Howell; and (2) also dismissing the Notice to Show Cause seeking to impair the licensed location owned by the Respondent, William A. Bell. RECOMMENDED this 21st day of April, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-1403 and 95-1404 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. (However, the reputation attached to licensed premises actually applies not only to the licensed premises but also to Towles Street and the area surrounding Mr. B's. First sentence, rejected as not proven. (Many of the 176 calls on DABT Ex. 3 were not made from Mr. B's.) Second and third sentences, accepted and incorporated to the extent not subordinate or unnecessary. (However, it only was proven that a few of the violent acts actually were committed on the licensed premises.) Accepted and incorporated to the extent not subordinate or unnecessary. (One of the questions for determination in this case is the extent of Howell's "affirmative duty.") Rejected as not proven that the violent acts were committed by patrons or, if they were patrons, that they were committed on the licensed premises. Otherwise, the first sentence is accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. However, in the public mind, "Mr. B's" describes not just the licensed premises but also Towles Street and the area surrounding Mr. B's. First sentence, rejected as not proven that the initial service call reported the shooting of a patron. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the incidents described in the second sentence occurred during the investigation. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the 141 shell casings were recovered in the Respondent's "parking lot." (They were recovered from the immediate vicinity of Mr. B's, starting from the side of the building and extending for up to approximately 40 yards away, and including on the opposite side of Towles Street across from the licensed premises. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (Nygaard warned Howell several times in 1990 before arresting him. Howell was tried and acquitted on a judge's ruling that it was not proven that the patron was drinking alcoholic beverages after hours. After Nygaard was reassigned to the East Zone in January, 1995, he again arrested Howell on similar charges, which Howell denies and which are still pending.) Accepted but subordinate and unnecessary. Accepted and incorporated. Howell's Proposed Findings of Fact. (Howell wrote a letter from which findings arguably have been proposed, as indicated.) Rejected as contrary to the greater weight of the evidence that the crimes described in the evidence did not "in the vicinity of" Mr. B's. Accepted that the Respondent recently added a parking lot and incorporated to the extent necessary. Accepted that, if they cooperate, the Respondent and LCSO can solve some of the problems, and incorporated to the extent necessary. Bell's Proposed Findings of Fact. (Bell also wrote a letter. Much of the letter is argument but findings arguably also have been proposed, as indicated. For purposes of these rulings, the unnumbered paragraphs of Bell's letter are treated as consecutive, separate proposed findings.) Accepted and incorporated. Rejected as argument and as not supported by any evidence. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as argument and as conclusion of law. Accepted and incorporated that Howell called LCSO frequently to report crime. Rejected as not proven that none of the incidents involved Mr. B's, that all involved "just the neighborhood"; accepted and incorporated that many of the calls involved incidents occurring off the licensed premises. The rest is rejected as argument and as subordinate and unnecessary. Rejected as not supported by the record that most of the alcoholic beverages drunk by people hanging around in Towles Street are from sources other than Mr. B's; accepted and incorporated that much is, and that all the liquor is. (Mr. B's has a Series 2-COP license.) Rejected as argument, as subordinate and unnecessary, and as unsupported by any evidence. Accepted and incorporated that LCSO has reduced patrols in the area, in part due to budgetary constraints but also in part due to the illegally parked cars that block Towles Street, and that Howell places many of the telephone calls reporting crime in the area. Otherwise, rejected in part as unsupported by any evidence, in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated that reduced police presence in areas like Towles Street increases crime. Otherwise, rejected as argument, as subordinate and as unnecessary. Accepted and incorporated that the DABT did not prove lack of due diligence. Otherwise, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. In part, rejected as contrary to the greater weight of the evidence (that only one of the violent crimes was reported to have originated in Mr. B's.) (See Findings of Fact 19 and 20.) Otherwise, accepted and incorporated in part. In part, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated that the wounds were not received on the licensed premises. Otherwise, rejected as cumulative. Accepted and incorporated that the evidence did not clearly identify either the victim or the assailant as being patrons. Otherwise, rejected in part as argument and conclusion of law, and in part as subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Cumulative. Accepted and incorporated that Towles Street presents a difficult police problem and that increased patrols and manpower could help. Otherwise, rejected in part as unsupported by any evidence (the nine-block area), in part as argument, and in part as subordinate and unnecessary. Accepted and incorporated that many people congregate in the streets and that policing them is made difficult by the congestion. Otherwise, rejected in part as argument and in part as subordinate and unnecessary. 17.-18. Cumulative. Rejected that Tamayo's statement was naive. Accepted and incorporated that the problem could move elsewhere if Mr. B's were closed. Otherwise, argument, subordinate and unnecessary. Generally accepted and incorporated to the extent not subordinate or unnecessary, or argument. However, Bell does not seem to acknowledge the serious problems faced by law enforcement in the Towles Street. Rejected as contrary to the greater weight of the evidence that no problems occur before 2 a.m. Also, subordinate, unnecessary, and argument. 22.-23. Argument. COPIES FURNISHED: Thomas A. Klein, Esquire Chief Attorney Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1020 Edward Lee Howell 1348 Brook Hill Drive Ft. Myers, Florida 33916 William A. Bell 19450 Tammy Lane Ft. Myers, Florida 33917 Lynda L. Goodgame, Esquire General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris, Division Director Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1020
The Issue The issue presented in this case is whether the Petitioner has established by a preponderance of the evidence that Respondent sold alcoholic beverages to a person under the age of 21, in violation of Section 562.11(1)(a), Florida Statutes, as alleged in the Notice To Show Cause issued October 8, 1992.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent, Jin I. Jeon, (licensee), held license number 39-03637, series 2-APS, authorizing him to sell alcoholic beverages on the premises of the Diwan Food Store, located at 7504 N. Florida Avenue, Tampa, Hillsborough County, Florida (premises). On or about September 16, 1992, Special Agent A. Murray, Special Agent K. Hamilton, Investigative Aide D. Snow and Intern M. Dolitsky went to Diwan Food Store to investigate complaints of alcoholic beverage sales to minors. Investigative Aide D. Snow's date of birth is November 11, 1973. She was 18 years of age on September 16, 1992. In accordance with the intructions of the law enforcement officers, Investigative Aide Snow entered the premises and selected a one-quart bottle of Budweiser beer, an alcoholic beverage, from a cooler. The bottle of beer was sealed and clearly marked as an alcoholic beverage. She proceeded to the cash register, where the Respondent was waiting. Snow paid the Respondent, who rang up the sale on the register. The Respondent did not request to see Snow's identification, nor did he ask her whether she was at least 21 years of age. The Respondent's defense was that he was not the person who sold Snow the beer. When he was confronted with the charges, he disclaimed any knowledge of them and blamed an employee, Min Sup Lee, whom he believed must have been the person involved in the sale. He immediately fired Lee because of the charges. Lee testified that he was employed by the Respondent from March 1992 through January, 1993. Lee testified that he worked for Respondent six days a week, primarily at night, and that he was the person in charge of the cash register the majority of the time. He asserted that he probably worked the cash register on the night of the violation. However, he denied ever having seen either Special Agent Murray or Special Agent Hamilton, or Investigative Aide Snow, and he denied any knowledge of the incident. It seems clear that Lee was not the person who sold the beer to the Investigative Aide Snow. Communication problems (the Respondent's English language limitations) may be at the root of the Respondent's inability to understand and to carry out his responsibilities as a vendor under the Beverage Law. Later on the evening of the sale in question, Special Agent Murray returned to the store to talk to the Respondent about the violation but she was not confident that he understood anything she was saying. It is possible that, due to the Respondent's lack of facility with the English language, he did not understand that Murray was charging him with illegal sale of alcoholic beverages to a minor and that, when, some time later, the Respondent came understand the nature of the charge against him, he assumed that his employee must have been responsible. On the other hand, it is possible that the Respondent knows full well his responsibilities under the Beverage Law, and knows full well that he failed to meet those responsibilities on September 16, 1992, but that he knowingly and unfairly tried to use his employee to avoid his own responsibity. In any event, it is found that it was the Respondent, not Lee, who sold the beer to Snow and that, in all likelihood, Lee either was not working on September 16, 1992, or was occupied elsewhere with other responsibilities when Snow and Murray were in the store. The Division's standard penalty for the violation alleged in the Notice to Show Cause is a twenty-day license suspension and a thousand dollar ($1,000.00) civil penalty. This standard penalty has been noticed as proposed Rule 7A-2.022, Penalty Guidelines, pending public workshop and approval.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: (1) finding the Respondent guilty as charged in the Notice to Show Cause; (2) suspending the Respondent's alcoholic beverage license for twenty days; and (3) ordering the Respondent to pay a $1,000 civil penalty. RECOMMENDED this 27th day of July, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 27th day of July, 1993. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32399-1007 Jin I. Jeon 7504 N. Florida Avenue Tampa, Florida 33604 John Harrison, Acting Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Donald D. Conn, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee Florida 32399-1000
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times material hereto, respondent, Cesar J. Reyes, held alcoholic beverage license number 23-05034, series 2-COP, for the premises known as Busy Cafeteria Bar (the "premises"), located at 4601 West Flagler Street, Miami, Dade County, Florida. In November 1993, Special Agent Joe Lopez of the Division of Alcoholic Beverages and Tobacco, together with the assistance of a confidential informant (CI), began an undercover investigation of the premises. Such investigation was predicated on information Special Agent Lopez had received from federal authorities which indicated that narcotics were being sold upon the premises. On December 1, 1993, Special Agent Lopez and the CI entered the licensed premises. While inside the premises, the CI met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On the same occasion, Special Agent Lopez met with respondent, and he also purchased a small plastic package containing 1/2 gram of cocaine for $30.00. 1/ On December 2, 1993, Special Agent Lopez and the CI returned to the licensed premises. While inside the licensed premises, they again met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On December 7, 1993, Special Agent Brian Weiner of the Division of Alcoholic Beverages and Tobacco served respondent with an emergency order suspending his alcoholic beverage license, and placed respondent under arrest for the sale of cocaine. Incident to such arrest, Special Agent Weiner searched respondent's person and discovered six small plastic packages, each containing 1/2 gram of cocaine, in a small box tucked under respondent's waist band.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing Counts 1 and 2 of the notice to show cause, finding respondent guilty of Counts 3, 4, 5 and 6 of the notice to show cause, and revoking respondent's alcoholic beverage license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1993. WILLIAM J. KENDRICK 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 December 1993.
