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 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
The Issue Whether respondent's alcoholic beverage license should be disciplined for allegedly serving alcoholic beverages to a person under the age of 19 contrary to Section 562.11(1), Florida Statutes.
Findings Of Fact Respondent holds alcoholic beverage license No. 64-00061, Series 6-COP. Under this license, it operates a liquor store and lounge, where it serves alcoholic beverages, at ABC Liquors #65 ("lounge #65" or "licensed premises"), 2527 Reid Street, Palatka, Florida. (Testimony of Ewing, Holloway, Ottens.) I. At approximately 7:00 p.m. on October 23, 1981, Clay Lamar Strickland, 16 years old, entered respondent's lounge in the company of several friends--one was 20, the others were 19 years old. During the two hours which followed, he ordered and was served by two barmaids, a beer and eight or nine mixed alcoholic drinks. Neither barmaid requested identification. (Testimony of Strickland.) At approximately 9:30 p.m., he left the lounge for twenty minutes, then returned and ordered additional mixed drinks. Again, the barmaids did not check his identification. (Testimony of Strickland.) When he left the lounge at the end of the evening, he was involved in a car accident and charged with driving while intoxicated and wanton reckless driving. After a test was administered, he was informed that the alcohol content of his blood was 0.12 percent. (Testimony of Strickland.) The two barmaids who served Mr. Strickland, Mary Tyler and Brenda Adams, did not intentionally serve alcohol to a minor. They believed he was 19 or older. At that time, he played football for Palatka High School; he was approximately 5'll" tall and weighed 170 pounds. Because of his size and mature-looking face, he could easily have been mistaken for an adult. (Testimony of Adams, Tyler, Strickland.) October 23, 1981, was not r. Strickland's first visit to the lounge. Once before, he had succeeded in purchasing one beer; on other occasions, his identification had been checked and service was refused. He was well aware that he was underage and could not legally purchase alcohol. (Testimony of Strickland.) II. Respondent operates 148 similar liquor stores and lounges throughout Florida. It has announced and repeatedly emphasized to its employees a policy prohibiting sales of alcohol to minors. Its regulations inform new employees of the law against sales of alcohol to persons under 19, and require that bartenders check I.D.s of anyone who "doesn't look 23" or older. Periodic bulletins which must be signed and returned by employees, and posted notes of supervisors' meetings have reiterated respondent's company-wide policy against the sale of alcohol to minors. Further, the manager and night manager of store #65 frequently reminded their employees of the policy against sales to minors and the requirement to check I.D.s when in doubt about a customer's age. Ms. Tyler and Ms. Adams, the barmaids who served Mr. Strickland, were aware of this policy. (Testimony of Holloway, Tyler, Adams; R-1, R-2, R.-3.) On the whole, respondent has been successful in preventing sales of alcohol to minors in its stores and lounges. In the last ten years, it has been cited only ten times for violations relating to the unlawful sale of alcohol to minors. But a disproportionate number of those violations occurred at the Palatka #65 lounge. On two previous occasions, in 1979 and 1981, respondent admitted to unlawful sales of alcohol to minors at the #65 lounge and paid civil penalties. (Testimony of Holloway; P-1, P-6.) Yet, after each of these violations, including the incident involving Mr. Strickland in October, 1981, respondent's remedial action was simply to reinstruct employees at #65 of its policy not to serve alcoholic beverages to minors and to prevent such incidents from occurring. This action was not substantially different from the routine reminders it periodically issued to its employees in the past. (Testimony of Holloway, Ottens, Lindholtz.) At lounge #65, signs were not posted calling attention to its policy that sales to minors were prohibited. Neither did it post an employee at the main entrance to check I.D.s and keep minors out of the premises. (Testimony of Holloway, Ottens, Lindholtz.) III. The foregoing findings support a factual inference that respondent was not reasonably diligent in taking steps to prevent further repetition of sales to minors at its #65 lounge. Having been placed on notice that such incidents were occurring in disproportionate number at #65 lounge, it had a duty to investigate, to determine why such a phenomenon had occurred, and to take further precautionary measures. Instead, it was satisfied to simply remind the employees of store #65 of longstanding company policy.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license for lounge #65 be suspended for thirty days from entry of the final order in this proceeding. DONE and RECOMMENDED this 1st day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1982.
The Issue The central issue in this case is whether Petitioners are entitled to apply for a new quota liquor license.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Prior to March 22, 1989, the Department notified the Petitioners that they had been selected in the drawing for a new quota beverage license for Broward County. Petitioners were advised that, in order to become eligible to receive the new quota license, they were required to file a complete application for the issuance of the license within 45 days. The deadline for such filing was calculated to be May 8, 1989. This date was not disputed. On or about April 6, 1989, Petitioner, Harvey R. Bernstein, and his brother, Jerome, went to the Fort Lauderdale office of the beverage division. The purpose of the visit was to secure information relative to the application Petitioners intended to file. While at the office, Petitioner spoke with Patricia Cohen, an employee at that location, who attempted to assist Mr. Bernstein by providing various forms to him. According to Mr. Bernstein, Ms. Cohen advised him that he would not have to disclose a business location on the application if he were to put the license immediately into escrow. Ms. Cohen did not recall that conversation but was able to confirm that she did meet with Mr. Bernstein to provide certain forms. Subsequently, on or about April 20, 1989, Petitioner went to the Sarasota beverage office. On that visit Mr. Bernstein spoke to Ruth Branch and Linda Angell. Both of these employees advised Mr. Bernstein that he would be required to disclose a business location on the application and that the application would have to be acted upon with the issuance of the license before it could be placed into escrow. Because Mr. Bernstein disputed that advice (based upon his recollection of the meeting with Ms. Cohen), the Sarasota branch contacted Tallahassee which, in turn, called the Fort Lauderdale beverage office. In response to the inquiry, Russell Smith telephoned the Sarasota office while Mr. Bernstein was still there. Captain Smith advised Mr. Bernstein that the license could not be placed in escrow in the manner he proposed, that a business location would have to be included in the application, that the fee would have to be paid, and that, once issued, then, at that time, the license could go into escrow. Petitioners' application was filed on May 8, 1989. The application did not contain a business address/location for the proposed license; instead, under the heading "Current Business Name:" Petitioners answered "none." Under the heading "Current Location Address:" Petitioners answered "escrow." All questions related to the business address were answered "escrow." All sections of the application requesting information regarding zoning, health code compliance, and right of occupancy to the business location were left blank. The front page of the application contained a checklist which indicated all of the pertinent address/location information was required to be complete. Petitioners were advised both by the verbal instructions given by Captain Smith and by the terms of the application itself that a business location together with the information related to the location were required with the submission of the application. The weight of the persuasive evidence established that, for whatever reason, Petitioners ignored the instructions. Their application as submitted on May 8, 1989, was incomplete.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the request filed by the Petitioners Harvey Roy Bernstein and Christina H. Bernstein to approve the application for a new quota beverage license be denied. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1500 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3903 Rulings On The Proposed Findings of Fact Submitted By The Department: Paragraph 1 is accepted. Paragraph 2 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 3, 4, 5 and 6 are accepted. Paragraph 7 is rejected as argument but see finding reached in paragraph 2. Paragraphs 8 through 11 are accepted. Paragraph 12 is rejected as irrelevant. Paragraphs 13 and 14 are accepted. Rulings On The Proposed Findings of Fact Submitted By The Petitioners: None submitted. Petitioners submitted a handwritten summary of the argument which has been reviewed prior to the submission of this Recommended Order. To the extent that Petitioners rely on the belief that they were entitled to submit the application without a business location and have represented that as fact, same is rejected as contrary to the weight of credible evidence and contrary to law. COPIES FURNISHED: Thomas A. Klein Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Harvey R. Bernstein Christine H. Bernstein 5029 Sandy Shore Avenue Sarasota, Florida 34242 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact The Tanga Lounge, operated by Respondent Rodde Inc., is located at 6333 West Columbus Avenue, Tampa, Florida. This facility has been licensed by Petitioner at all times relevant to these proceedings. Respondent's records show Mr. Joe Redner as the sole stockholder and corporate officer of Rodde, Inc., which is the holder of alcoholic beverage license No. 39-738. Case No. 81-2566 contains three counts of begging or soliciting for alcoholic beverages by employees of Respondent on August 6, 1980. Testimony by former Beverage Officer White established that the solicitations of three drinks by two employees were made as charged in the Notice to Show Cause. White purchased the drinks as requested by these employees, who received a "ticket" for each of the drinks purchased for them by White. Case No. 81-2567 contains 44 counts of begging or soliciting drinks by various employees of Respondent and 44 counts charging that Respondent conspired with these employees for the purpose of soliciting drinks. These charges are primarily based on the investigations of Beverage Officers Gary Hodge and Michael Freese. The period of their investigation was October 17, 1980 through May 15, 1981. Count 52 was based on a solicitation of Detective Phil Mickel of the Tampa Police Department, who was in the licensed premises in an undercover capacity on November 6, 1980. At the request of dancer-employee Cathy Andrews, Mickel purchased a "double" for her and observed that she received two tickets from the waitress. 5 Former Tampa Police Department Detective Nick Haynes was in the licensed premises on November 6, 1980, and was approached by the dancer-employee, Cheryl Jonas, who requested that Haynes purchase a drink for her. He did so. This transaction occurred as charged in Count No. 51. Beverage Officer Freese individually and in conjunction with Beverage Officer Hodge, accounted for 38 solicitation charges (Counts 53-57, 59-63, 66, 68-88, and 163-167) . The solicitations charged in Counts 53, 55, 71-80, 83, - 84, 88, 163, 166 and 167 occurred as alleged and involved direct requests for the purchase of drinks ("Will you buy me a drink," or words of similar import) . Freese observed employees receive tickets for these drinks from the bartender or waitress in most instances. The solicitations charged in Counts 54, 56, 57, 59-63,66, 68-70, 81, 82, 164 and 165 were not supported by evidence of direct requests for the beverage purchases by employees of Respondent. At a meeting held about December 17, 1980, Beverage Officers Freese and Hodge were instructed by their supervisor to require that dancers request drinks before ordering. This procedure was adopted to avoid situations where the beverage officer was not asked to buy a drink, but eventually received the bill for the dancer's drink. In implementing the instructions, Freese used these or similar words: "If you want a drink, ask for it.", This statement possibly misled the dancers to believe that Freese was inviting them to order whenever they wanted drinks. The date when Freese first used this statement was not established, but it was subsequent to the mid-December meeting. It was noted that Freese was not solicited during the first two months of the investigation. Therefore, all or substantially all of the solicitation charges involving Freese took Place after he first issued the "invitation." Beverage Officer Hodge individually testified as to solicitation Counts 58, 64, 65 and 67. Counts 58, 65 and 67 did not involve a direct request for beverage purchase. Count 64 occurred as alleged and was based on a direct request for beverage Purchase ("Why don't you buy me one now?"). This request was made during the early morning of January 13, 1981. Although this was after the December meeting which Hodge attended, it was not shown that he made any statement which could have been interpreted as an "invitation" by any employee of Respondent. The fact that customers regularly Purchased drinks for the dancers was well known to the management as evidenced by the tickets issued to employees for drinks purchased in their behalf. These tickets were redeemable by the dancers for one dollar each. Thus, employees were rewarded and implicitly permitted to solicit drinks. Respondent's announced policy was, however, to reprimand or discharge any employee who was caught begging or soliciting drinks. This policy was attested to by bartenders; former employees and dancers. Although it cannot be found that Respondent actively encouraged its employees to solicit drinks, it did encourage socializing with customers to a degree which would elicit offers to purchase drinks for them. Respondent has since discontinued the practice of issuing tickets or other employee incentives to obtain customer purchased drinks. Counts 127 through 161 involve drug charges. Purchases were made by Beverage Officer Freese and Hedge, individually and together. Their testimony and that of Florida Department of Law Enforcement Crime Lab personnel established that controlled substances were purchased from dancer-employees of Respondent on the licensed premises as charged in Counts 127 through 137, 156 and 158. The transactions which-were established to have been carried out involved cocaine, methaqualone and cannabis deliveries by dancer-employees Margie Wade, Janie Marsie, Lori Basch and Lisa Scibilia on February 21, 24, 27; March 2, 9, 13, 17, 23; May 13, 15, 1981. It should be noted that Counts 136 and 137 actually involved one transaction where Hodge and Freese split the delivery. Count 161 concerned a transaction outside the licensed premises and this count, as well as Count 158, involved an employee of another establishment. Petitioner's Exhibit 43 and the supporting testimony concerned a transaction for which there was no charge. Counts 138 through 151, 154 and 159-161 alleged conspiracies to deliver controlled substances corresponding to other counts which alleged actual deliveries. There was testimony on the involvement of third person (not shown to be associated with the Respondent) only as to Counts 134, 146, and 147, which essentially covered a single transaction. No other evidence of conspiracy was presented. On one occasion, Redner was in the Tanga Lounge and within about 15 feet of the beverage officer and the dancer when the delivery took place. However, there was no evidence that Redner was involved or that he had any knowledge of the transaction. Testimony by a former employee that Redner participated in drug use was lacking in credibility and was not corroborated. Counts 3 through 30 and 33 through 50 are charges of lewd dancing by employees of Respondent on the licensed premises. The charges cover 46 dances on 12 separate dates between October, 1980, and February, 1981, performed by 11 different dancer-employees. The acts complained of in these counts were witnessed and attested to by Beverage Officers Hodge and Freese and Tampa Police Department Detective Mickel. The alleged lewd conduct included exposing of the breasts, vagina and anus by dancers during their on-stage performances. Typically, the dancers received dollar tips which customers placed in their bikini bottoms. Some dancers allowed customers to reach inside the bikinis in order to touch their pubic areas. On several occasions the dancers squatted and picked up the dollar bills with their exposed genital areas. On December 11, dancer Cathy Andrews rubbed her vagina, then rubbed the genital area of Beverage Officer Freese, who was observing the dance. Mr. Redner was present during much of the alleged lewd conduct. Although Redner testified that "flashing" was acceptable, the exposure of sexual organs as attested to was not limited to brief "flashes," but was prolonged. Further, Respondent's contention that dancers receiving tips tried to avoid contact by customers is not credible. Rather, the testimony of the officers established that dancers frequently encouraged customers to place their hands against the dancers pubic areas when offering tips. Respondent's, lounge is advertised as an adult entertainment facility and is generally known to include nude dancing. There was no competent evidence as to community standards for this type of conduct in the Tampa area, nor was there any evidence that these acts shocked or offended anyone present other than the investigating officers. Detective Mickel conceded that about five other bars he has visited offer this type of entertainment. Counts 31 and 32 concern an offer of prostitution by one of the dancer-employees to the beverage officers. Their testimony established that the offer was made as charged. This was, however, a single incident and there was no evidence that such offers were recurring or that Respondent had knowledge of this transaction. Counts 1 and 2 of Case No. 81-2567 allege that Robert Rodriguez holds an undisclosed interest in the licensed premises. Such interest, if any, was not reflected in the license transfer application submitted on April 23, 1976. Rather, Joseph Redner and Joe DeFriese were identified as the sole stockholders with no direct or indirect interest held by any other person. Rodriguez previously owned an interest in Deep South Plantation Foods, Inc., whose alcoholic beverage license was revoked by Petitioner. Redner was at one time employed by Rodriguez as manager of Deep South Petitioner asserts that Rodriguez became ineligible to hold an interest in an alcoholic beverage license as a result of the revocation, pursuant to Section 561.15, Florida Statutes, and that he and Redner therefore concealed Rodriguez's subsequent interest in the Tanga Lounge. Respondent contends that Rodriguez is the manager of the Tanga Lounge, but holds no direct or indirect interest therein. Rodde, Inc., was organized on April 19, 1976, and a $2,000 down payment deposit on the contract for purchase of the Tanga Lounge and liquor license was made on April 20, 1976, pursuant to contract signed by DeFriese and the prior owners on that date. This $2,000 check was issued by Robert Rodriguez against his own account. Petitioner produced this cancelled check (Petitioner's Exhibit 4) and numerous other documents which establish that Rodriguez participated in all aspects of Rodde, Inc., management and financial operations since its inception. Rodriguez has unrestricted authority to withdraw funds from corporate accounts and has signed or cosigned for loans and credit purchases. Rodriguez also utilized a Rodde, Inc., credit card to pay personal expenses on a vacation to Las Vegas in 1979. There was no evidence of reimbursement or other accounting to the corporation for these expenditures. The testimony of the Rodde, Inc., employees did not corroborate Redner's testimony that Rodriguez is manager of the Tanga Lounge. Rather, these employees believed Rodriguez was somehow associated with the business, but regarded Redner as the manager and their only supervisor. Rodriguez issued two checks for $1,408.05 on December 1, 1979, one payable to himself and the other to Redner (Petitioner's Exhibit 32) . These checks each carried the notation "bonus $1500", with a further notation apparently accounting for $91.95 in withholding tax. In view of Rodriguez's duties and functions within the corporation, this "bonus" can only be considered a participation in profits. Redner's credit rating and financial management skills are poor. Therefore, Respondent contends that a manager with strength in these areas was needed to ensure business success. However, Rodriguez's unlimited authority in dealing with corporate funds, the investment or loan of his personal funds, his participation in business profits and the absence of any apparent supervisory duties are inconsistent with the employee theory held out by Respondent.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent be found guilty of the charges contained in Counts 1, 2 and 3 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2566. It is further RECOMMENDED that Respondent be found guilty of the charges contained in Counts 1, 2, 31, 32, 51, 52, 64, 127-137, 156, and 158 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2567. It is further RECOMMENDED that all other charges be dismissed. It is further RECOMMENDED that Respondent's Alcoholic Beverage License No. 39-738 be revoked. DONE and ENTERED this 9th day of July, 1982 at Tallahassee, Florida. R. T. CARPENTER, 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 9th day of July, 1982.
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.
