The Issue Did the licensee repeatedly sell alcoholic beverages to persons under the age of 21?
Findings Of Fact At all times material hereto, Respondent, Jayprakash Patel, d/b/a United Discount Beverage, held alcoholic beverage license number 11-00952, Series 2-APS, for a premises known as United Discount Beverage, each side of U.S. Highway 301, Hawthorne, Florida. Joseph Donnelly, a person under the age of 21, purchased alcoholic beverages on April 27, 1990, to wit: three six packs of beer and two bottles of MD 20/20 wine, without identification at United Discount Beverage from Kirtie B. Patel, an employee of the business. Joseph P. Donnelly had purchased alcoholic beverages without identification on previous occasions at United Discount Beverage from Kirtie B. Patel. Madonna Bristow observed Joseph B. Donnelly purchase alcoholic beverages from United Discount Beverages on April 27, 1990 and on several other occasions previous to that date. Mr. Glen Molander observed Joseph P. Donnelly and Madonna Bristow carrying packages from United Discount Beverage on April 27, 1990. A vehicle driven by Joseph P. Donnelly was involved in an automobile accident on April 27, 1990, and was towed to a secured impoundment on that date. His mother, Kathlene L. Donnelly, recovered six cans of beer and two bottles of MD 20/20 wine from the car. Mrs. Donnelly took the beer and wine to her residence where she concealed it. On May 2, 1990, Inv. Jernigan the six cans of beer and two bottles of MD 20/20 wine obtained from the Donnelly's residence. Inv. Jernigan marked these items as evidence and stored in the vault at the Gainesville Division of Alcoholic Beverages and Tobacco District Office. Investigator Jernigan identified at hearing the six cans of beer and two bottles of MD 20/20 wine he had recovered from the Donnelly's residence. Joseph P. Donnelly identified this evidence at hearing as a portion of the alcoholic beverages which he had purchased at United Discount Beverage from Kirtie B. Patel on April 27, 1990. Joseph Donnelly and Madonna Bristow observed many other individuals who they knew to be under twenty-one years old purchase alcoholic beverages from United Discount Beverage without identification. Kirtie B. Patel plead guilty to a charge of selling alcoholic beverages to a person under age 21 in violation of Section 562.11(1)(a), Florida Statutes, Petitioner's exhibit number 1, to wit: underage operative M. Goldtrap on December 14, 1989. Kirtie B. Patel plead nolo contendere to a charge of selling alcoholic beverages to a person under age 21 in violation of Section 562.11(1)(a), Florida Statutes, Petitioner's exhibit number 2, to wit: Joseph P. Donnelly on April 27, 1990. Licensee, Jayprakash Patel, has previously admitted in an administrative proceeding to have been in violation of Section 562.11(1)(a) within Section 561.29(1), Florida Statutes, to wit: three sales of alcoholic beverages by his employees to persons under the age of 21 during the period May 11, 1989 through December 14, 1989. Jayprakash Patel has become a Responsible Vendor since April 27, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the alcoholic beverage license held by Respondent, Jayprakash Patel, d/b/a United Discount Beverage, license number 11-00952, Series 2-APS, be suspended for six (6) months and a $1,000.00 civil penalty be imposed. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. COPIES FURNISHED: Eric S. Haug Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Don Reid Post Office Box 133 Gainesville, FL 32602 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issue presented is whether Respondent Willie Lee Lewis d/b/a LS Lounge is guilty of the allegations contained in the notice of Administrative Action filed against him, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact Respondent Willie Lee Lewis d/b/a LS Lounge is the holder of alcoholic beverage license No. 53-01765, series 2-COP, authorizing him to operate as a vendor of alcoholic beverages. On May 31, 1996, Respondent filed with the Department his Application for Alcoholic Beverage License and Cigarette Permit and its accompanying Personal Questionnaire form. The Personal Questionnaire form contains a question asking if the applicant has ever been arrested or charged with any violation of the law other than minor traffic violations, and, if so, whether the applicant was convicted. Respondent answered "yes" to the first part of the question and "no" to the second part and added a notation that "adjudication was withheld." At the bottom of that series of questions, the form requests full particulars for any "yes" answer and lists the type of information requested, only a portion of which is legible on the copy of the form admitted in evidence. On this portion of the application, Respondent wrote "Martin County Sherifs [sic] Department." On April 14, 1992, Respondent was charged by Information in the Martin County Circuit Court, Case No. 92-352 CFA, with one count of unlawfully selling, delivering, or possessing with the intent to sell or deliver a controlled substance, cocaine. The second count alleged that Respondent unlawfully used or possessed with the intent to use drug paraphernalia, i.e., a razor blade. Respondent pled nolo contendere to count one, possession of cocaine. On December 9, 1992, the Court entered its Order Withholding Adjudication of Guilt and Placing Defendant on Drug Probation, placing Respondent on probation for a period of two years. When Respondent was completing his application for a beverage license, he went to the Department's offices in Martin County on several occasions. Department employees assisted him in completing his application. Respondent was concerned as to whether he was eligible for licensure due to the arrest which resulted in adjudication being withheld. He discussed that concern with the Department's employees in its Martin County office. The lady he spoke with did not know if Respondent could obtain a beverage license if adjudication had been withheld. She telephoned the Department's Tallahassee office regarding that question and then advised Respondent that he was not precluded from licensure. Respondent submitted certified copies of the Information and of the Order Withholding Adjudication of Guilt. The Department issued a beverage license to Respondent in May 1996, and Respondent set up his business. He entered into a lease for the business premises at a cost of $1,000 a month and spent $5,000 to $6,000 renovating the premises. He leased a big- screen T. V. at a cost of $200 a month. He purchased D. J. equipment for $8,000. He purchased inventory, hired employees, and began advertising. It costs Respondent approximately $1,800 a week to operate the business. He has a one-year contract for radio advertising and renewed the lease for his business premises for another year in May of 1997. It is the policy of the Department to determine on a case-by-case basis whether a person who has a criminal history should be given a license. The Department does issue licenses to persons who have been charged with a crime, have pled nolo contendere to those charges, and have had adjudication withheld and been placed on probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent not guilty of the allegations against him and dismissing the notice of Administrative Action. DONE AND ENTERED this 12th day of September, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1997. COPIES FURNISHED: Leslie Anderson-Adams, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Iola Mosley, Esquire Whitfield & Mosley, P.A. Post Office Box 34 West Palm Beach, Florida 33402 Lt. Bob M. Young 800 Virginia Avenue, Suite 7 Fort Pierce, Florida 34982 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Richard Boyd, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether Petitioners' applications for the delinquent renewal of their special restaurant licenses pursuant to Section 561.27(2), Florida Statutes, should be denied for the reasons set forth in the Notices of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: There are various types of DABT-issued licenses authorizing the retail sale of alcoholic beverages. Among them are quota licenses, SRX licenses, and SR licenses. All three of these licenses allow the licensee to sell liquor, as well as beer and wine. Quota licenses, as their name suggests, are limited in number. The number of quota licenses available in each county is based upon that county's population. SRX and SR licenses are "special" licenses authorizing the retail sale of beer, wine, and liquor by restaurants. There are no restrictions on the number of these "special" licenses that may be in effect (countywide or statewide) at any one time. SRX licenses are "special restaurant" licenses that were originally issued in or after 1958.3 SR licenses are "special restaurant" licenses that were originally issued prior to 1958. For restaurants originally licensed after April 18, 1972, at least 51 percent of the licensed restaurant's total gross revenues must be from the retail sale of food and non- alcoholic beverages.4 Restaurants for which an SR license has been obtained, on the other hand, do not have to derive any set percentage or amount of their total gross revenues from the retail sale of food and non-alcoholic beverages. DABT-issued alcoholic beverage licenses are subject to annual renewal.5 License holders who have not timely renewed their licenses, but wish to remain licensed, may file an Application for Delinquent Renewal (on DABT Form 6015). Until recently, it was DABT's longstanding policy and practice to routinely grant applications for the delinquent renewal of SR and other alcoholic beverage licenses, regardless of the reason for the delinquency. DABT still routinely grants applications to delinquently renew alcoholic beverage licenses other than SR licenses, but it now has a "new policy" in place with respect to applications for the delinquent renewal of SR licenses. The "new policy" is to deny all such applications based upon these SR licenses' not having been in "continuous operation," action that, according to DABT, is dictated by operation of Section 561.20(5), Florida Statutes, a statutory provision DABT now claims it had previously misinterpreted when it was routinely granting these applications. Relying on Section 561.20(5), Florida Statutes, to blanketly deny all applications for the delinquent renewal of SR licenses was the idea of Eileen Klinger, the head of DABT's Bureau of Licensing. She directed her licensing staff to implement the "new policy" after being told by agency attorneys that this "was the appropriate thing [from a legal perspective] to do." Abkey and Amy Cat have SR licenses that were originally issued in 1956 "per general law and not pursuant to any special or local act." Maneros has an SR license that was originally issued in 1952 "per general law and not pursuant to any special or local act." As applicants applying to delinquently renew their SR licenses, Petitioners are substantially affected by DABT's "new policy" that SR licenses cannot be delinquently renewed because they have not been in "continuous operation," as that term is used in Section 561.20(5), Florida Statutes. Their applications for the delinquent renewal of their licenses would have been approved had the status quo been maintained and this "new policy" not been implemented. Abkey filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on February 21, 2007. On the application form, Abkey gave the following "explanation for not having renewed during the renewal period": "Building was sold. Lost our lease." On April 2, 2007, DABT issued a Notice of Intent to Deny Abkey's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. Maneros filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on June 4, 2007. On the application form, Maneros gave no "explanation for not having renewed during the renewal period"; however, the application was accompanied by a letter from a Maneros representative, which read, in pertinent part, as follows: I am today submitting a delinquent renewal application for the above-referenced alcoholic beverage license. The building has been demolished, and there is a vacant lot at the site at this time. Redevelopment is scheduled for this area, and I expect new construction to begin shortly. The license was first issued to this location 55 years ago. I have inquired with the City of Hallandale Beach, Florida, and there remains a question as to whether zoning approval for this type of alcoholic beverage license would be permitted under current uses once reconstruction is complete. The licensee of record wishes to reinstate and possibly use or transfer the license. . . . On June 8, 2007, DABT issued a Notice of Intent to Deny Maneros' application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued. Amy Cat filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 1999) on December 6, 2006. On the application form, Amy Cat gave the following "explanation for not having renewed during the renewal period": "Building was closed." On June 8, 2007, DABT issued a Notice of Intent to Deny Amy Cat's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 1999, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a Final Order granting Petitioners' applications for the delinquent renewal of their SR licenses. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 30th day of April, 2008.
The Issue Should discipline be imposed on the alcoholic beverage license held by Respondents for selling, serving, or giving an alcoholic beverage, on the licensed premises, to a person under the age of 21 in violation of Section 562.11, Florida Statutes?
Findings Of Fact The Division of Alcoholic Beverages and Tobacco ("Division") is empowered to revoke or suspend the alcoholic beverage license of any person holding a license under the Beverage Law for certain classes of violations enumerated in Sections 561.29, Florida Statutes. In addition, or alternatively, the Division may impose a civil penalty against a licensee for those violations. See Section 561.29, Florida Statutes. The Division issued an alcoholic beverage license to Now, Inc. and Azam, Mohammed Monsurul d/b/a Red Barn, license no. 7402731, series 2APS, which was in effect at all times relevant to this inquiry. That license is subject to the disciplinary opportunities created in Section 561.29, Florida Statutes. The licensed premises are located at 805 West New York Avenue, Deland, Florida. Mr. Mohammed Monsurul Azam owns a one- third interest in Now, Inc. His two brothers own the remaining interest in one-third shares. Mr. Gregory Campbell was born on October 1, 1979. On May 22, 1998, Mr. Campbell purchased a keg of beer from Mr. Azam at the licensed premises in Deland, Florida. In the transaction Mr. Campbell paid money directly to Mr. Azam for the purchase of the beer. Neither Mr. Azam nor any other person working for Now, Inc. asked Mr. Campbell to produce identification to establish Mr. Campbell's age. Mr. Campbell had purchased alcoholic beverages from the Red Barn on three or more occasions before this date and had not been asked for identification on the other occasions. Mr. Azam was among the persons from whom Mr. Campbell purchased beer at the Red Barn on prior occasions. When Mr. Campbell purchased the beer from Mr. Azam, a receipt for the purchase was prepared by Mr. Azam. Mr. Azam wrote Mr. Campbell's name and telephone number down in association with the purchase of the beer on May 22, 1998. When Mr. Campbell purchased the beer on May 22, 1998, he was accompanied by Mr. Brian Kucera and Clifton Wilson. Neither of those individuals was directly involved in the purchase of the beer to the extent of producing identification in support of the purchase or paying money to Mr. Azam or another employee(s) of Now, Inc. The keg of beer that was purchased from Mr. Azam on May 22, 1998, was placed in an automobile that Messrs. Campbell, Kucera, and Wilson were riding in. Those three persons then drove away from the licensed premises with the beer. The beer in the keg was not consumed. At the insistence of Mrs. Glenda Campbell, Gregory Campbell's mother, the beer was returned to the licensed premises. At that time a deposit was returned for the keg and keg tap, but not for the contents of the keg. Mr. Campbell had paid for the contents, and for the deposit on the keg and keg tap when the beer was purchased on May 22, 1998.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Mohammed Monsurul Azam sold Gregory Campbell, who was under the age of 21, an alcoholic beverage, to wit beer, contrary to Sections 561.29(1)(a) and (3) and 562.11, Florida Statutes, and imposing a suspension of seven days and a civil penalty of $1000 against beverage license no. 7402731, series 2APS. DONE AND ENTERED this 9th day of December, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 9th day of December, 1998. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Craig T. James, Esquire Post Office Box 2087 Deland, Florida 32721-2087 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue This case concerns the issue of whether the Respondent properly denied Petitioner's entitlement to a quota beverage license in Bradford County, Florida. At the formal hearing the Petitioner called as witnesses Allen F. Nash and, by deposition, L. B. Schoenfeld. Petitioner also testified on her own behalf. The Respondent called as its only witness Allen F. Nash. The Petitioner offered and had admitted into evidence four exhibits. The Respondent offered no exhibits into evidence. Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that these proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions in this order, they were considered by the Hearing Officer and rejected as being not supported by the evidence or unnecessary to the disposition of this cause.
Findings Of Fact The Petitioner in this case is an applicant for a quota beverage license and filed her initial application for that license on October 23, 1981. That application was titled "Preliminary Application for New Quota Alcoholic Beverage License." Paragraph five of the instructions contained in the preliminary application referred to above states: This is Part I of a two (2) part application. Part II will be fur- nished to you if selected in the drawing. Part II includes among other things, health approval (if required), zoning approval and proof of right of occupancy. On October 13, 1982, the Petitioner was notified by letter from the Director of the Division of Alcoholic Beverages and Tobacco that she had been selected in the random drawing on October 6, 1983, for a new quota beverage license for Starke, Bradford County, Florida. This letter informed Petitioner that her name had been drawn and that the agency must act on her application within 180 days of the drawing. Paragraph three of that letter states: We suggest that you contact our Jackson- ville field office located at the Richard P. Daniel Building, 111 East Coastline Drive, Suite 514, Jacksonville, as soon as pos- sible. You must file your complete appli- cation which will include, among other items, a location, zoning approval, and fingerprints, if you are not already a current licensee, for yourself and those to be interested with you in your business. Please bear in mind that our agency has only 180 days from the date of the drawing to act upon your application. We urge you to move forward in order to save time necessary to process the appli- cation and complete the investigative process. On October 22, 1982, the Division of Alcoholic Beverages and Tobacco forwarded to Petitioner the forms necessary to complete Part II of the application process. Those forms and the accompanying letter were received by the Petitioner. Petitioner failed to file Part II of the application and on April 7, 1983, the Division of Alcoholic Beverages and Tobacco by letter notified the Petitioner that her entitlement to a quota beverage license had been disapproved. The authority for such disapproval was given as Florida Statute 561.17 and Florida Statute 561.19. The information which was to be provided subsequent to the drawing, which was not included in the preliminary application, included: Information relating to the right of the applicant to occupy the premises to be licensed. The health approval of the premises to be licensed. This approval must be signed by a proper representative of the state/county health authorities. Information relating to the zoning of the premises to be licensed. A portion of the second application form in section 7 must be completed by the local zoning authorities and must reflect that the premises to be licensed complies with the local zoning ordinance for the sale of alcoholic beverages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco issue a final order denying Petitioner's application for a quota beverage license. DONE AND ENTERED this 16th day of November, 1983, at Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1983. COPIES FURNISHED: Dennis E. LaRosa, Esquire 516 North Duval Street Tallahassee, Florida 32301 James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida u2301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether the Petitioner is entitled to an alcoholic beverage license.
Findings Of Fact John Harry Michaels filed a preliminary application to participate in the state lottery for a new quota license on January 16, 1984. The application form completed by Mr. Michaels in this stage of the application process contained instructions to the applicant that it was the first part of a two-part application. The instructions also informed Mr. Michaels that a right of occupancy is required, and should accompany the second part of the application if his name is drawn in the lottery for new quota licenses. Mr. Michaels, as part of his voluntary enlistment, was on military duty in the Armed Forces outside of the state on May 16, 1984. On September 18, 1984, Mr. Michaels was notified by Respondent that he had been selected in the drawing held on September 12, 1984, for an available liquor license in Martin County. This selection of Mr. Michaels' name granted him the opportunity to continue the application process for the state quota liquor license in Martin County. The letter notifying Mr. Michaels of his eligibility also informed him that the second part of the application must be completed within forty-five days from the date the letter was issued. This second part of the application required proof of a right to occupancy of a specified location and verification of the financial investment made by the applicant. On November 2, 1984, the forty-fifth day, Mr. Michaels, acting through his wholly owned corporation, filed the document entitled "Application for Alcoholic Beverage License." When the application was submitted to the Respondent, it did not contain: a business location, zoning approval, a right of occupancy, a sketch of the premises, and documentation to support the stockholder's financial investment. Attached to the document was a letter from the attorney who represented the corporation. The letter requested an additional forty-five day extension of time to properly complete the application. The letter explained that Mr. Michaels was on military duty outside of Florida and had been unable to make arrangements to comply with the original time period. On February 5, 1985, the Respondent was granted the requested extension with an expiration date of March 22, 1985. On the final day of the extension, the Petitioner's attorney requested a second extension. The letter stated that Mr. Michaels was unable to leave his post to return to Florida to obtain a properly zoned location. The letter did not address any new matters, nor did it explain why the forty-five days previously requested was insufficient. This request was denied on April 3, 1985, because there was no showing made that the Petitioner had made a good faith attempt to comply with the first extension. In the Respondent's denial letter, the Petitioner was informed that a letter of denial for the application was forthcoming. On April 23, 1985, the Petitioner filed amendments to its application with the Respondent. The amended application was reviewed in the district office. The investigator sent the amended application to the central office in Tallahassee and recommended disapproval of this application for a number of reasons: There were no financial verification, no lease, and no right of occupancy included with the amended application. A lease, Joint Exhibit 12, was submitted to the district office on April 26, 1985, and was forwarded to Tallahassee the same day. On May 31, 1985, the application was denied because it was incomplete due to the Petitioner's failure to timely file the following items within the granted extension period: 1) a right of occupancy; for a specific location; 2) complete verification of the financial investment. The written denial of the Petitioner's application by the Respondent took place after the 180 day time period for granting a beverage license issued by lottery had expired.
The Issue The Division of Alcoholic Beverages and Tobacco seeks by this action to suspend or revoke or otherwise discipline License No. 56-00475 belonging to the licensee Clayton E. Adams. The basis for such action is the allegation that Mr. Adams violated Section 893.13, Florida Statutes, by delivering three pounds of marijuana to an individual named Jackie Long for which Mr. Adams received $800. The Petitioner called no witnesses but relied upon the stipulation entered into by the Respondent as to the facts alleged in the count set forth in the Notice to Show Cause. Mr. Clayton E. Adams testified on behalf of the Respondent, Blueberry Grocery and Curb Market. The Respondent offered into evidence nine exhibits, all of which were admitted without objection.
Findings Of Fact Mr. Clayton E. Adams, doing business as Blueberry Grocery and Curb Market, is the licensee of Beverage License No. 56-00475, license series 1-APS. The Petitioner and Respondent stipulated to the facts alleged in the one and only count of the Notice to Show Cause and based upon said stipulation, I find as follows: On or about August 10, 1981, Clayton E. Adams, did violate Section 893.13, Florida Statutes, to wit: Clayton E. Adams did deliver three pounds of marijuana to Jackie Long and did receive $800 for same, in violation of Section 893.13, Florida Statutes within Section 561.29, Florida Statutes. The licensed premises is located on Highway 85 North in Crestview, Florida, and is a grocery store. There is no on-premises consumption of alcohol. The transfer and sale of the marijuana by Mr. Adams took place at 10:00 o'clock at night. This was some two hours after the 8:00 o'clock closing time of the Blueberry Grocery and Curb Market. The only connection between this transaction and the licensed premises was the fact that the transfer took place in the parking lot of the Blueberry Grocery and Curb Market. The Blueberry Grocery and Curb Market is operated primarily by the wife of Clayton E. Adams. Mr. Adams drives a truck full-time and works at the store only on weekends. Prior to his arrest and charge for the sale of marijuana, Mr. Adams had no prior record and has no other evidence of violation in connection with his beverage license. With regard to the drug charge, the Circuit Court of Okaloosa County withheld adjudication of guilt, placed Mr. Adams on probation for five years, and imposed a $1,000 fine. As of the date of the hearing in this matter, Mr. Adams had been on probation for approximately one year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Beverage License No. 56-00475 be revoked but that the revocation be suspended pursuant to Section 561.29(5), Florida Statutes, for a period of four years. It is further recommended that such suspension of the revocation be conditioned upon there being no further violations of the laws of the State of Florida or the rules and regulations of the Division of Alcoholic Beverages and Tobacco. In the event that no such violation has occurred during that four-year period, it is further recommended that the revocation be withdrawn, at the end of the suspension period. DONE and ORDERED this 20th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1983. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Clayton E. Adams Blueberry Grocery and Curb Market Highway 85 North Crestview, Florida Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Harold F.X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 75 South Bronough Street Tallahassee, Florida 32301
The Issue The central issue in this case is whether the Petitioner's application for a new quota license should be approved or disapproved.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: On December 17, 1986, the Department processed a preliminary application for a new quota alcoholic beverage license for Broward County which was submitted in the name of Donald Chester Morton. The preliminary application provided, in pertinent part, an affirmation for the applicant and all persons listed which stated: I hereby certify and affirm under penalty of perjury as provided for in 837.06 and 559.791, Florida Statutes, that the foregoing information is true and correct to the best of my knowledge. The preliminary application instructions further stated: Each person listed anywhere on the application must sign affirming that the answers are true and correct to the best of their knowledge. Following notification of being selected, Petitioner filed an application for a new-temporary 3 PS license on August 21, 1987. This temporary license was issued by the Department and was to expire on November 18, 1987. During the period the temporary license was in effect, the Department conducted an investigation which revealed that the original preliminary application had not been signed by the applicant, Donald Chester Morton. Instead, the applicant's father, William Chester Morton, had signed his son's name on that portion of the preliminary application which required an affirmation. Based upon this discovery, the Department issued a Notice of Disapproval on April 25, 1988 The notice provided as follows: As a disapproved applicant you are entitled to a hearing pursuant to 120.57, Florida Statutes, Florida Administrative Procedure Act, provided you file a written request for an administrative review of this decision within twenty-one (21) days of the date of this letter. Thereafter, on May 16, 1988, Petitioner filed a request for an administrative review of the decision and alleged the basis to be "Chapter 120.57 of the Florida Statutes." Prior to the submission of the preliminary application Donald Chester Morton had authorized his father to sign the form on his behalf. This authorization was given in a telephone conversation when the younger Morton determined he could not, due to work scheduling, file the preliminary application for himself. The senior Morton also filed a preliminary application in his own behalf. Coincidentally, both Mortons were chosen for quota licenses. Prior to the submission of the preliminary application in the name of Donald Morton, no written power of attorney was executed. William Chester Morton, acting on the verbal instructions from his son, signed the preliminary application. All information on the preliminary application, other than the affirmation, was true and correct. Neither Morton notified the Department of the manner in which the preliminary application had been executed. The facts regarding the father signing for his son came out during the background investigation of the license.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Bureau of Licensing and Records enter a final order disapproving Petitioner's application for a new quota beverage license. DONE and RECOMMENDED this 11th day of October, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 11th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2924 Rulings on Petitioner's proposed findings of fact: Petitioner's proposed findings of fact are rejected as a recitation of the proceedings, argument, or commentary which have not been set forth in a form which allows specific rulings to be made. The following facts gleaned from the discussion offered by Petitioner are accepted: That William C. Morton had no interest in the license acquired by the applicant, Donald C. Morton. That Donald C. Morton took all steps to comply with the Department's regulations regarding the temporary license. That William C. Morton was verbally authorized to sign the preliminary application for his son. It is the policy of the Department to require an applicant to personally sign the preliminary application although the rule does not specifically prohibit execution by verbal power of attorney or agency. Rulings on Respondent's proposed findings of fact: Paragraphs 1,2, and 3 are accepted. While the exact date is uncertain from the record, the fact that during the investigation it was discovered that Morton's father executed the preliminary application is accepted. Consequently, that portion of paragraph 4 which makes that assertion is accepted. Paragraph 5 is accepted. With the exception of the date, paragraph 6 is accepted. See the comment to paragraph 4 above. Paragraph 8 is rejected as unsupported by the record. Paragraph 9 is accepted. Paragraph 10 is rejected as irrelevant, immaterial or unnecessary to the resolution of the issue of this case. Paragraphs 11 and 12 are accepted. COPIES FURNISHED: Raymond A. Doumar ALLSWORTH DOUMAR CAZEL CURTIS & CROSS 1177 Southeast 3rd Avenue Fort Lauderdale, Florida 33316-1197 Harry Hooper Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Daniel Bosanko, Director Department of Business Regulation Division of Alcoholic Beverages The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
