The Issue Whether Petitioner is entitled to apply for a new quota liquor license in Martin County, Florida.
Findings Of Fact Prior to March 29, 1990, Respondent duly advertized to the public that it intended to conduct a random selection drawing for quota liquor licenses that had become available in Martin County, Florida, by virtue of the county's growth in population as authorized by the provisions of Chapter 561, Florida Statutes. Petitioner timely filed a complete "Preliminary Application For New Quota Alcoholic Beverage License", the form that was necessary to participate in this drawing for the Martin County license. Petitioner listed as his address 1522 44th Street, West Palm Beach, Florida 33407. The application was accepted by Respondent and Petitioner was assigned a number. Petitioner's number was one of the ones selected by the random drawing. On April 6, 1990, a letter addressed to Petitioner with the heading "Notice of Selection" was prepared by Respondent and signed by Mr. L. B. Schoenfeld in his capacity as Chief, Bureau of Licensing and Records, Division of Alcoholic Beverages & Tobacco. This letter, referring to Mr. Schmoker's application for one of the licenses in Martin County, provided, in pertinent part, as follows: We are pleased to advise that you are one of the preliminary applicants selected in the drawing for an available liquor license in the county as referenced above. When an applicant is selected in a drawing, Florida law requires the selectee to file an appli- cation for a "grant" of the license or an application for the "issuance" of the license. The application for the "grant" of the license deals only with the qualifica- tions of the applicant and those persons listed on the application. The application for "issuance" of the license deals not only with qualifications, but includes among other things the location to be licensed. Having been selected and pursuant to 561.19(2), Florida Statutes and 7A-2.017, Florida Administrative Code, you must file a full and complete application for the "grant" or a full and complete application for "issuance" of the license within 45 days of the date of this letter. Failure to file a complete application for the "grant" or "issuance" of the license within such 45 day period will be deemed as a waiver of your right to file for the new quota license. * * * Please bear in mind that you must file either application within 45 days of the date of this letter, which is calculated to be May 21, 1990. We urge you to move forward promptly in order to save time necessary to process the application and complete the investigative process. ... This letter was addressed to Petitioner and mailed to him by certified mail, return receipt requested, on April 6, 1990, at "1522 44th Street, West Palm Beach, Fl 33407", the address he had listed on his application. The Notice of Selection letter was not received by Petitioner. The original letter in the original mailing envelope was returned to Respondent on May 1, 1990. The markings on the envelope by the U.S. Post Office indicate that delivery was attempted on April 9 and April 18, 1990. The markings further indicate that the letter was ordered to be returned to sender by the Northwood Station, West Palm Beach, Florida, on April 24, 1990, with the explanatory notation that the certified mailing had been "Unclaimed". Respondent made no effort to determine the reasons for the nondelivery because its policy is to rely on postal service for delivery of the notice. There were approximately 11,000 applications received by Respondent for all of the new quota licenses that had become available throughout the State. Of these, approximately 120 notices of selection, similar to the April 6, 1990, letter to Petitioner, were mailed by Respondent. Between 5 and 35 of these notices of selection were returned to Respondent by the U.S. Post Office as being undeliverable. The address listed on Petitioner's application is a single family detached dwelling at which Petitioner has resided since 1972. Petitioner works out of his home and receives his mail by home delivery at the address he gave. When Petitioner is not at home, he has his brother-in-law check his mail. Petitioner checked his mail on a daily basis during April 1990. On June 5, 1990, Respondent mailed to Petitioner at "1522 44th Street, West Palm Beach, Fl 33407", by U.S. Mail, a letter notifying Petitioner of Respondent's intent to deny his entitlement to apply for the new quota liquor license in Martin County. This letter gave Petitioner until June 15, 1990, to show cause why an order of denial should not be entered. No timely response was received by Respondent to its letter of June 5, 1990. On June 27, 1990, Respondent mailed to Petitioner at "1522 44th Street, West Palm Beach, Fl 33407", by certified mail, return receipt requested, a "Notice of Disapproval". This mailing was received and signed for by someone other than Petitioner. On July 23, 1990, Petitioner visited the offices of Respondent in Tallahassee, Florida. During this visit, Petitioner requested an administrative hearing, pursuant to Section 120.57, Florida Statutes, to contest the denial of his entitlement to apply for the quota license and he provided Respondent with the following address: "4937 Windward Avenue, Tequesta, Fl 33455". This is the address of a friend of Petitioner at whose residence Petitioner sometimes received mail. On July 30, 1990, Respondent sent to Petitioner an "Order on Informal Proceedings and Notice of Informal Hearing" by certified mail, return receipt requested, at the address in Tequesta, Florida. This certified mailing was subsequently returned to Respondent as being unclaimed. The U.S. Postal Service's Form PS 1510 can be used by a member of the public to request that the Postal Service determine why a certified mailing was undeliverable. There was no evidence that either party attempted to use that form in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which finds that Bernard T. Schmoker is not entitled to apply for a new quota liquor license in Martin County, Florida. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of February, 1991. CLAUDE B. ARRINGTON 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 February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5853 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 3, 5, and 9 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 2, 6, 11, and 12 are rejected as being subordinate to the findings made. The proposed findings of fact in the first sentence of paragraph 4 are rejected as being subordinate to the findings made. The proposed findings of fact in the second and fourth sentences of paragraph 4 are adopted in material part by the Recommended Order. The proposed findings of fact in the third sentence of paragraph 4 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraphs 7, 8, and 10 are rejected as being subordinate to the findings made or as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 13 are rejected because the Petitioner's testimony about that telephone call lacked certainty as to when the call was made and to whom Petitioner spoke. Further, the proposed findings of fact in paragraph 13 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 14 are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1 and 3-6 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being contrary to the greater weight of the evidence and to the finding that the envelope reflected two attempts at mailing, not three. The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Nancy Waller, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32399-1007 Dennis E. LaRosa, Esquire 1901 Welby Way Tallahassee, Florida 32308 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue This case concerns action by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, through a Notice to Show Cause (Administrative Complaint) to assess a civil penalty, suspend or revoke or deny the renewal of the beverage license of the Respondent, Keith Nothnagel. This action is promoted on the allegation that the Respondent was convicted in the United States District Court for the Eastern District of Michigan of the offense of conspiracy to possess marijuana in violation of the United States Code, Title 21, Section 846, on May 25, 1978, in that this conviction constituted a violation of Subsections 561.15(2) and 561.29(1)(a), Florida Statutes, and thereby subjects the Respondent to penalties found in Section 561.29, Florida Statutes.
Findings Of Fact The Respondent, Keith Nothnagel, holds license No. 62-1311, series 2- COP, issued by the State of Florida, Division of Alcoholic Beverages and Tobacco. This license allows the Respondent to sell beer and wine to be consumed on his premises located at 606-608 Court Street, Clearwater, Florida. The beverage license was issued on January 17, 1977, at a time subsequent to the commission of an offense for which the Respondent pled guilty to conspiracy to possess marijuana in violation of the United States Code, Title 21, Section 846, and this plea was made on March 15, 1978. On May 24, 1978, the Respondent was found guilty of the offense and convicted and sentenced to serve one (1) year. The Respondent did serve seven (7) months of that sentence. A copy of the Judgment and Commitment Order may be found as Petitioner's Exhibit No. 1 admitted into evidence. It is on the strength of this plea and adjudication of guilty and sentence that the Petitioner has charged the Respondent with violations of Subsections 561.15(2)(a) and 561.29(1)(a), Florida Statutes.
Recommendation It is recommended that the action through this Notice to Show Cause filed against the Respondent, Keith Nothnagel, be DISMISSED. DONE AND ENTERED this 16th day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary Jo M. Gallay, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Waldense D. Malouf, Esquire 325 South Garden Avenue Clearwater, Florida 33516 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Petitioner, v. DOAH NO. 79-1287 DABT NO. 33234A THE INN BETWEEN/KEITH NOTHNAGEL, Respondent. /
The Issue Did the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Department) act within its authority, pursuant to Sections 561.17 and 561.19(2), Florida Statutes, and Rule 61A-5.0105, Florida Administrative Code, in issuing the Notice of Intent to Deny Petitioner's application for an alcoholic beverage license on the basis that Petitioner had failed to timely file a completed application?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of issuing new quota liquor licenses. In 1994, the Department held a lottery drawing for new quota liquor licenses in Polk County, Florida. Petitioner was an applicant for a new quota liquor license in Polk County, Florida in the 1994 lottery. Petitioner was not a successful applicant in the 1994 lottery but was an alternate in the event one or more of the successful applicants in the 1994 lottery failed to qualify for a new quota liquor license. The Department sent a Notice of Selection dated February 10, 2000, by Certified Mail through the U. S. Postal Service, to Petitioner at 3636 Dranefield Road, Lakeland, Florida 33811, the address Petitioner had on file with the Department. The Notice of Selection was returned to the Department undelivered with the notation "no such number." Petitioner's new address (not on file with the Department) was 3200 Flightline Drive, Lakeland, Florida 32811. Petitioner failed to advise the Department that he had moved to a new address The Notice of Selection advised Petitioner that one or more of the successful applicants of the 1994 lottery drawing had failed to qualify or to file the proper application for a new quota liquor license and, as a result, the Department was proceeding with the next eligible applicant in accordance with rankings based on the drawings. The Notice of Selection advised Petitioner that he was now eligible to apply for a new quota liquor license but that he must file a full and complete application for the issuance of the license within 45 days of the date of the Notice of Selection. The deadline stated in the Notice of Selection for filing the application for issuance of the license was March 28, 2000. On March 31, 2000, the Department mailed a Final Warning Notice to Petitioner advising him that the Department intended to deny Petitioner's entitlement to apply for a new quota liquor license in Polk County. Petitioner received the Final Warning Notice even though it was mailed to the same address as the Notice of Selection. The Final Warning Notice gave Petitioner until April 10, 2000, to furnished the Department additional information as to why he should not be disapproved due to his failure to timely file a full and complete application for the issuance of a new quota liquor license in Polk County. The Final Warning Notice also advised Petitioner that "[t]his time period" (April 10, 2000) "should not be considered as an extension of time originally granted to file an application for licensure." Petitioner's testimony was that he interpreted the Final Warning Notice as giving him until April 10, 2000, to file a full and complete application for licensure. As a result, Petitioner made a telephone call on April 4, 2000, to the Division of Alcoholic Beverages and Tobacco (DABT) using the telephone number listed on the Final Warning Notice in an attempt to get an application for licensure. Petitioner does not remember the person's name at DABT that he spoke with on April 4, 2000. In essence, Petitioner testified that this person told him that it was too late to apply and that he would be getting a denial letter and he would have the opportunity to appeal at that time. It was the Department's position that the Final Warning Notice was to advise Petitioner that there was no record of the Department having received Petitioner's full and complete application for licensure. Also, it was to give Petitioner an opportunity to prove to the Department, no later that April 10, 2000, that he had in fact filed the application with the Department no later than March 28, 2000. By a Notice of Disapproval dated April 10, 2000, the Department advised Petitioner that it had disapproved his entitlement to apply for a new quota liquor license in Polk County due to Petitioner's failure to timely file a full and complete application for a new quota liquor license in Polk County. This notice also advised Petitioner of his right to a hearing under Chapter 120, Florida Statutes, to contest this decision. Petitioner has never filed a full and complete application for a new quota liquor license with the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's request for relief. DONE AND ENTERED this 9th of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2001. COPIES FURNISHED: Phillip A. Kuhn, Esquire 1533 Tomahawk Trail Lakeland, Florida 33813-3748 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre, 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre, 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On March 25, 1983, Mr. Luther Thomas, petitioner in this case, who operates an automotive repair shop in Gainesville, Florida, entered the Respondent's local office and secured an Application for Alcoholic Beverage License (DBR Form 700-1) and the related Personal Questionnaire (DBR Form 710L). These forms were filled out, signed under oath by Petitioner and submitted to Respondent for processing on March 28, 1983. At the time the forms were submitted, the questionnaire had on it a question regarding whether the applicant had ever been arrested for or charged with a violation of a felony law or misdemeanor law of the State of Florida, any other state, or the United States, excluding minor traffic laws. This form was marked "No" by Petitioner. Whether he did it at the time of submittal or when it was brought to his attention by a beverage officer who came to his place of business is in question, but when it was done is immaterial. The fact remains that Petitioner stated "No" when in fact, according to his testimony at the hearing, he had been charged several times: once for failure to pay support, and twice for driving while under the influence. Also, in addition, in 1968, he appeared before a judge on an allegation of assault with intent to commit homicide, but was never arrested. He voluntarily reported to the courthouse without being placed under arrest, and the allegation was dismissed. However, since Petitioner could not state with any particularity what actually happened, and since Respondent did not produce any evidence of a charge or arrest, this incident is not considered as being reportable. The DWIs and the failures to pay support were not felonies at the time of commission. Sometime after the submission of the application, Beverage Officer Woodrow came out to Petitioner's place of business to do a sketch of the layout which was needed to process the application. During this visit, Woodrow indicated to Petitioner that they needed to talk about his arrest record. At this point, Petitioner responded to the effect that he "ain't never been arrested." The prior involvement for assault with intent to commit homicide was known to Respondent and considered at the time it issued him a prior beverage license in 1973 or 1974. Mr. Thomas felt that since he had not been arrested then, since the allegation had been dismissed, and since he had previously been issued a license with this information known to Respondent, there was no reason to list it again. This former license lapsed when Mr. Thomas went out of business after a heart attack. It was not disciplined or revoked by Respondent. The questionnaire form which Petitioner filled out contains, in the oath, the reference to Section 559.791, Florida Statutes (1981), which provides that a false statement in the questionnaire or application constitutes grounds for denial of a license. The "pending and undetermined criminal and felony charges" referred to in Respondent's letter of denial, according to Petitioner, related to three separate worthless checks. These charges were reduced to a misdemeanor and resolved by Petitioner making restitution. No jail time or fine was imposed. Mr. Thomas is presently facing misdemeanor charges in Alachua County, Florida, in violation of Section 837.06, Florida Statutes (1981) , based on the same alleged false statement in the questionnaire as are used as basis for denial of his license here.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner, Luther Thomas, doing business as Lake Road Beverages, be issued an alcoholic beverage license as applied for. RECOMMENDED this 14th day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 14th day of December, 1983. COPIES FURNISHED: Mr. Luther Thomas 2824 N.E. 12th Street Gainesville, Florida 32601 Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Petitioner was notified by DABT on September 18, 1984, that its name had been drawn in the lottery for a new quota liquor license in Hillsborough County, Florida. The prescribed application form was timely filed by Petitioner on November 2, 1984. The lease for the premises at which the license was to be operated was a three-month lease which expired before DABT took action on the application. Thereafter, Petitioner did not have a lease on premises from which to operate the license. On March 7, 1985, Petitioner waived the 180-day period given in the statute which DABT had to rule upon the application. On August 8, 1986, Petitioner requested DABT issue the license in escrow. On August 13, 1986, DABT denied the request to issue a new quota license in escrow and gave Petitioner 45 days in which to file a new application, Part II. Petitioner timely filed this second application September 26, 1986. Upon review by DABT this application was deemed incomplete by reason of lack of approved zoning of the site and Petitioner was so notified. All information requested by DABT was provided with respect to the zoning of the proposed site, except certification by zoning officials that the site was wet zoned. On February 9, 1987, Petitioner's application was denied for the reason that the applicant had failed to obtain zoning approval for the proposed site. Patsy Frenchman is the sole owner of the stock in Hillsborough County Liquors, Inc., and has operated package stores in Alachua County for some time. Following the waiver of the 180-day period in which DABT had to rule on the application the file "fell through a crack" and no action was taken by Respondent for over a year. When this file again became active it was determined to allow Petitioner to resubmit a new application and the 45-day period in which to do so was started. Petitioner prepared the new application, found a site in Ruskin, Florida that had previously been used as a package store, took the landlord to the County Zoning Department in Ruskin who confirmed the prior zoning of the site, and then negotiated a lease for this site. When she returned the following day to the Ruskin Zoning Office to get her application signed off by the Zoning Department that the site was properly zoned, she was told that it was necessary to have the application signed off by the main Hillsborough County Zoning Office in Tampa, Florida. Petitioner then took the application to Tampa where no record that this site was wet zoned could be located. Petitioner was advised that she could apply for zoning and was given the proper forms with which to do so. After being told by the main zoning office that the site was not zoned to allow the sale of alcoholic beverages, Petitioner obtained the services of an attorney to help straighten out the problem. Petitioner submitted the application with a letter from the zoning official stating the zoning of this property was zoned C-1 (neighborhood commercial) and this zoning would allow the sale of alcoholic beverages after going through the alcoholic beverage zoning process (Exhibit 2). This application was deemed incomplete by Respondent because it did not contain a site for the license which was properly zoned. However, DABT did not disapprove the application but gave Petitioner time to sort out the zoning problems. Hillsborough County has what is referred to as spot zoning. A site can be zoned to accommodate a liquor store but once the operator moves from the site the zoning reverts to a general commercial zoning and cannot be used as a package store site without again obtaining zoning for such a purpose. Apparently, Petitioner did not fully understand this concept but continued to assume that once the site was zoned for a package store it could again be so used without the necessity of going through the procedures and expenses of rezoning. Near the end of the 180-day period for Respondent to act on the application, DABT requested a waiver of this 180-day period but Petitioner declined to so waive. A final check with the Hillsborough County Zoning Department made by Respondent's Tampa Office on February 4, 1987 revealed that the site selected by Petitioner was not wet zoned and that Petitioner had never submitted an application to have the site zoned for use as a package store. All of this information was submitted to Respondent's Tallahassee office and on February 9, 1987, the 180th day from the second authorization to Petitioner to file, the application was denied. Once a new quota liquor license has been issued the holder can place the license in escrow for 18 months. In many cases the initial site shown on the application for a new quota license is a small space inadequate for the licensee to operate from, but which meets the zoning requirements for licensure. Upon issuance of a new quota license, some licensees have immediately requested same be placed in escrow for up to 18 months while an adequate site is located. While the first application was pending, Petitioner testified she inquired of the Tampa Beverage Office if she could amend her application to a new site since the 3 month lease on the originally approved site could not be renewed and was advised she could not. DABT personnel have no recollection of having given such information and no documentation of such an inquiry was presented. DABT has in the past allowed an applicant for a new quota license to change to a new location while the application was being processed. (Exhibit 5). Here Petitioner never obtained an approved new location nor applied to have the application amended to show the new location. Section 361.19(2), Florida Statutes, provides for the issuance of new quota licenses by the Division. This section provides in part that if the applicant is found qualified, the new quota license shall be granted; however, it shall not be issued until the applicant establishes to the satisfaction of the Division that the premises to be licensed qualify under the Beverage Law. The long-standing interpretation of this section by the Division is that the granting and issuing of a new quota license is done simultaneously when the applicant and the location meet all requirements, and is not bifurcated into a process of granting a license and then issuing a license.
The Issue Whether the Division of Alcoholic Beverages and Tobacco (DABT) should take disciplinary action against respondent or its DABT license for the reasons alleged in the notice to show cause?
Findings Of Fact At all pertinent times, respondent 201 West, Inc. d/b/a Central City/Congo Craig's Safari, has held a quota license, No. 11-00259 4COP, authorizing it to sell alcoholic beverages at 201 West University Avenue, Gainesville, Florida. On August 23, 1991, Craig Cinque, respondent's sole shareholder and officer, executed on respondent's behalf a consent agreement which petitioner accepted and filed on September 6, 1991, resolving administrative proceedings then pending. The consent agreement provides: "The second and third floors now known as 'Congo Craig's' shall not admit customers under 21 years of age for a period of two years " Underaged Patrons Apprehended At eleven o'clock on a crowded Saturday night, September 7, 1991, five DABT officers entered Congo Craig's to check patrons' ages. DABT and other witnesses agreed that the bar had enough staff demanding proof from patrons of their ages as they entered, and that the lighting was adequate for this purpose. The DABT officers checked a number of already admitted patrons' "ID's" themselves, and found a false one that a 20-year-old woman, Amy L. Bruns, whom they saw drinking draft beer, had used to gain admission. The Maryland driver's license described a woman of its bearer's height and weight, but depicted a blonde, not the brunette the officers accosted. Petitioner's Exhibit No. 3. The next time DABT officers, again a contingent of five, discovered an under age patron at Congo Craig's was on October 12, 1991, another Saturday night when DABT and other witnesses agreed that the bar had enough staff checking patrons' ages as they entered, and that the lighting was adequate. Kim M. Chiappara, then 20 years and eight months old, was sharing a pitcher of draft beer with her older sister and others when she was interrogated by the DABT officers that night. A search of her person turned up no false identification. She was not asked whether she had used any, or borrowed her sister's identification, to get by the bouncers. The next Friday night DABT officers apprehended Dari A. Layne, who was born on October 27, 1972, at Congo Craig's shortly before midnight, as she was consuming a mixed drink. The "very good" counterfeit Pennsylvania driver's license she produced when asked for identification has her photograph, but lacks a holographic state stamp on the obverse and has a photocopied reverse, albeit duly laminated. After midnight on the same foray, DABT officers discovered Kim C. Stampler, three months and a week shy of her 21st birthday, holding a clear plastic cup containing a purple liquid. She denied having false identification, but a DABT officer's search turned some up. Also in the early hours of October 19, 1991, DABT officers arrested Christopher Wisniewski, an apparently intoxicated 16-year-old, whose father, also apparently intoxicated, only reluctantly admitted their relationship. Christopher, who was not asked what or whose identification, if any, he had used to get in, had a valid Florida driver's license on his person. Bar Tender Arrested The personnel that respondent assigned to check patrons identification as they entered did not take their stations until five o'clock evenings, an hour after opening. Aware of this, the DABT dispatched Randy Gordon (a stout, older- looking 19-year-old, who has succeeded two out of three times in efforts of this kind at some ten other establishments) to Congo Craig's. He readily gained admission between four and half past on the afternoon of November 8, 1991, without being asked for identification. The first customer of the evening, Randy asked Eric Frauman (who had agreed at the last minute to fill in for another bartender, and who ordinarily worked evenings when the bouncers, not the bartenders, are responsible for checking customers' identification) for a hamburger and a beer. Although he had been told to "card" everybody, Mr. Frauman neglected to ask young Mr. Gordon for identification. The second customer that evening was Ernest Wilson, the special DABT agent responsible for paying five dollars an hour for Mr. Gordon's services. Mr. Wilson took the beer, and Mr. Gordon, who paid for both, got the hamburger, which he described as very good. Mr. Frauman, a graduate student hoping to work as an educational counselor, was arrested and eventually prosecuted criminally. Precautions Taken Respondent is qualified as a responsible vendor, and was so certified during the time DABT made such certifications. All of the 18 employees respondent relies on for "security," those checking patrons' ages at night as well as the daytime bartenders and servers, are current with regard to the courses, tests and update meetings the responsible vendor program requires. Respondent's managers are current on requirements for managers. At weekly meetings of the managers, underage drinking was a regular topic. A book depicting driver's licenses in various jurisdictions is kept on the premises, and respondent's employees who testified seemed knowledgeable on the subject. Employees responsible for checking patrons' ages are told to require, at least of anybody who looks younger than 45, a driver's license, military identification or a passport. Several repeat customers testified that they had invariably been "carded." Although Congo Craig's can lawfully accommodate no more than 925 persons at any one time, the crowd "turns over" as the night wears on. From 35,000 to 45,000 patrons were on the premises between September 7, 1991, and November 18, 1991. During this period, DABT officers made several visits on which they failed to find a single patron under the age of 21. According to Kim Ehrich, who once worked at Congo Craig's, but now works elsewhere, Congo Craig's is probably the "strictest" bar in Gainesville, and does a more thorough job checking identification than the three other bars where she has worked in Gainesville. Willful Breach A week or so before the party at Congo Craig's on October 3, 1991, Charlotte Olsen, then social chairperson for the Phi Sigma Sigma sorority, told somebody at Congo Craig's that some of the party-goers would be under 21 years of age. She offered the sorority's wrist bands to demarcate those old enough to drink legally, but Congo Craig's used its own instead. Mr. Cinque was aware that underaged persons were expected to attend the party scheduled for the second and third floors, and decided to allow it, despite the consent agreement, in order to preserve "good will." About half of the 50 to 60 people at the party were under 21 years of age. He added staff, he testified, in an effort to stymie drinking by underaged attendees. This effort proved dramatically unsuccessful. Past Problems DABT established (in aggravation of penalty only) that respondent has a long history of problems of the kind proven in this case, dating to when respondent's father owned the establishment. When Mr. Cinque worked as a manager, before he became the owner, DABT issued some ten orders to show cause alleging beverage law violations, most of which respondent admitted. Since the younger Mr. Cinque assumed ownership, DABT has filed eight additional orders to show cause, the first seven of which were consolidated and disposed of by the consent agreement accepted by DABT on September 6, 1991.
Recommendation It is, accordingly, RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco suspend respondent's license for ten (10) days. DONE and ENTERED this 10th day of December, 1992, at Tallahassee, Florida. ROBERT T. BENTON, II 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 11th day of December 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact Nos. 1-21, 24, 25, 28, 29, 31, 34- 46, 50, 53-56 and 58 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 22 and 23, it is not that easy to make out the eye color of the woman depicted on the license. With respect to petitioner's proposed finding of fact No. 26, Ms. Chiappara did not testify at hearing; it is not clear what sworn statement is meant. With respect to petitioner's proposed finding of fact No. 27, the evidence suggested that she used the counterfeit license to gain entry. With respect to petitioner's proposed findings of fact Nos. 30 and 33, the method of entry was not proven, but there was speculation. With respect to petitioner's proposed finding of fact No. 32, she was drinking a purple beverage. With respect to petitioner's proposed finding of fact No. 47, she so testified. Petitioner's proposed findings of fact Nos. 48, 49 and 59 are properly proposed conclusions of law. Petitioner's proposed findings of fact No. 51 and 52 have been rejected as not established by the weight of the evidence. With respect to petitioner's proposed finding of fact No. 57, the number of allegations is immaterial. Respondent's proposed findings of fact Nos. 1-10 and 14-17 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, Mr. Frauman did not usually work the day shift. With respect to respondent's proposed finding of fact No. 12, time constraints do not account for the failure to honor the consent order. Respondent's proposed finding of fact No. 13 is properly a proposed conclusion of law. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, Florida 32399-1007 Sy Chadroff, Esquire 2700 S. W. 37th Avenue Miami, Florida 33133-2728 Donald D. Conn General Counsel The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
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 Whether petitioner's application for transfer of an alcoholic beverage license should be granted, or denied on the ground that the license has been revoked.
Findings Of Fact On January 25, 1977, Armando Calo, through counsel, filed a Notice of Lien with DABT stating that he was a bona fide mortgagee on an alcoholic beverage license (4-COP, lic. no. 23-1901) held by the Intimo Lounge, Inc., 1601 Collins Avenue, Miami Beach, Florida. Citing Section 561.65, Florida Statutes, he enclosed a copy of his chattel mortgage and a check payable to DABT in the amount of $5.00. (P-1) By return letter dated February 4, 1977, C. L. Ivey, Jr., DABT's Licensing Supervisor, acknowledged receipt of Mr. Calo's Notice of Lien and stated that it would be made part of the Intimo Lounge, Inc. license file. At that time, administrative license revocation proceedings were pending against Intimo Lounge, Inc. So Mr. Ivey sent a copy of his February 4, 1977 acknowledgment letter to DABT's Miami Office, and included this notation: P.S. John: You need to immediately notify Attorney Solomon's [Calo's attorney's] office if and when an order to revoke is issued. He will then go to court to seek a judicial transfer. (P-2) On March 22, 1977, Charles A. Nuzum, DABT's Director, executed an order revoking Intimo Lounge, Inc.`s alcoholic beverage license. (R-1) Eight days later, on March 30, 1977, Armando Calo sued Intimo Lounge, Inc., seeking to foreclose his chattel mortgage on its alcoholic beverage license. By letter of the same date, counsel for Mr. Calo, citing Section 561.65, Florida Statutes, notified DABT of the filing of the foreclosure action; he also asserted that Mr. Calo had no knowledge of or participation in the causes for which the Intimo Lounge, Inc. beverage license was revoked. Copies of subsequent pleadings filed in the action were sent to DABT's legal department. DABT thus knew the suit was filed and was aware of its continued progress. (Testimony of Barone; P-3, P-4, P-11) The Circuit Court of Dade County ultimately entered a final judgment of foreclosure in Mr. Calo's favor. On August 17, 1979, pursuant to such judgment, the Clerk of the Court sold the Intimo Lounge, Inc. beverage license, at public sale, to intervenor Rene Valdes, 1710 N.W. 7th Street, Suite 7201, Miami, Florida for $25,000. Notice of the sale was published in the Miami Review, a newspaper circulated in Dade County. On August 28, 1979, the Clerk issued a Certificate of Title pursuant to Chapter 45, Florida Statutes. This Certificate certified that Intimo Lounge, Inc.`s alcoholic beverage license (4-COP, license no. 23-1901) had been sold to Rene Valdes on August 17, 1979, and that "no objections to the sale have been filed within the time allowed for filing objections." (Testimony of Valdes; P-5, P-6) Although DABT was aware of the protracted mortgage foreclosure litigation involving the Intimo Lounge, Inc. beverage license --which it had earlier revoked -- it never protested or sought to block the foreclosure action. It was not a party to the action; neither did it attempt to become one. (Testimony of Barone, Valdes) In September, 1979, a month after the judicial foreclosure sale, Nathaniel Barone, counsel for Intimo Lounge, Inc., wrote R. B. Burroughs, Jr., Secretary of the Department of Business Regulation, asking what steps were necessary to keep the Intimo Lounge, Inc. beverage license viable. An internal memorandum suggests that DABT was, at first, unprepared to answer that question and preferred, instead, to delay answering until an application for the license was filed. But, on October 4, 1979, Harold F. X. Purnell, the Department's General Counsel replied on behalf of Secretary Burroughs: It is the Division's position that the . . . license has been and presently is revoked pursuant to the actions pre- viously taken by [DABT]. Further, that in the absence of an order of appropriate jurisdiction entered in a proceeding to which the Division is a party we are powerless to transfer such license. (Testimony of Barone; P-7, P-10) Meanwhile, Rene Valdes, notified DABT of his purchase of the Intimo Lounge, Inc. beverage license and asked that it be held in escrow while he found a suitable purchaser and location. When DABT refused, Mr. Valdes petitioned the court, which had rendered the foreclosure judgment, to require DABT to process and transfer the license. The court denied his petition, at least in part, because DABT was not a party to the proceeding. After the court hearing, Mr. Valdes, together with his attorney, Charles Kelly, and DABT's counsel, Mr. Purnell, met outside the chambers and discussed their next step. Mr. Kelly discussed seeking a mandamus ordering DABT to issue the license. Mr. Purnell suggested, instead, that Mr. Valdes find a location and purchaser for the license, then submit an application to DABT -- something which Mr. Valdes had not yet done. Although Mr. Purnell did not assure them that the application would be approved, both Mr. Valdes and Mr. Barone gained an impression that it would be. 2/ Mr. Valdes, following Mr. Purnell's suggestion, found a location and buyer, then applied for a transfer of the license. DABT's denial resulted in this proceeding. (Testimony of Barone, Valdes) Under Section 561.65(1), Florida Statutes (1977), a lender licensed by the state holding a lien on an alcoholic beverage license had the right to enforcement of his lien against the license within 12 days after any order of revocation, provided it was revoked for causes which the lienholder had no knowledge and did not participate. If the lienholder purchased the license at foreclosure sale, he could operate under it or transfer it to a qualified person. Until August 17, 1980, it was DABT's long-standing practice and policy to make no distinction between licensed and unlicensed lenders (lien-holders). It allowed both licensed and unlicensed lienholders to file notice of liens against beverage licenses and honored the subsequent transfer of the license if the lien was enforced within 12 days of revocation. This practice was abruptly changed on the basis of an agency legal opinion. On August 17, 1980, one month before Gui-Dom filed its application, DABT's General Counsel rendered a legal opinion limiting Section 561.65 relief to lenders licensed by the state. After that date, until 1981, when the legislature removed the "licensed lender" language of Section 561.65, DABT applied Section 561.65 literally and only accepted liens filed by licensed lenders. (Testimony of LaRosa; P-13) But in October, 1980, DABT did not deny Gui-Dom's application for transfer of the Intimo Lounge, Inc. license because Armando Calo, the lienholder, lacked a lender's license. Instead, the application was denied because the license had been earlier revoked. As later explained by Barry Schoenfeld, DABT's Chief of Licensing: 2 [DABT] felt at the time that . . . there really was no license, that the license had already been revoked, and that there was no license for the court to sell [to Valdes]. (P-13, p. 25). But Section 561.65 specifically permits liens, under specified conditions, to survive license revocation. When asked to explain DABT's position in light of Section 561.65, Mr. Schoenfeld replied, "I don't know that I can explain it." (P-13, p. 16) Neither could Mr. Schoenfeld adequately explain why, in cases similar to this, DABT has approved license transfers while, here, they have not. (P-13, p. 23) It was not until after the denial of Gui-Dom's application that DABT contended that Section 561.65, Florida Statutes (1977), provides no relief because Armando Calo was not a licensed lender. (P- 9, P-13). Rene Valdes, a beverage license broker, operates a business known as "Beverage License, Inc." He specializes in obtaining and transferring alcoholic beverage licenses for clients and has a working knowledge of the Beverage Law, including DABT rules and practice. When he purchased the Intimo Lounge, Inc. license at the judicial sale, he did not know that it had been revoked by DABT. He did, however, know that there was license revocation litigation between Intimo Lounge, Inc. and DABT. He also knew that DABT had issued an emergency order suspending Intimo Lounge, Inc.'s license; and he knew that there were circuit court foreclosure proceedings involving the license. Yet he failed to ascertain the status of the license -- either by checking the files of DABT or the circuit court. But even if he had discovered that the license had been revoked, under DABT's long-standing practice and interpretation of Section 561.65, it would have made no difference. The license would have "survived" revocation because Armando Calo had timely enforced his lien. And it could have been sold at a judicial sale and transferred to a new qualified purchaser. (Testimony of Valdes, Harris; P-13) DABT has provided no record foundation for its abrupt discontinuance of prior agency practice and policy in August, 1980, a policy which allowed both licensed and unlicensed lien holders to file and timely enforce liens against beverage licenses. This policy enabled a lien to survive license revocation; and the license, which had been revoked earlier could then be transferred by judicial sale. The only explanation given for the change in policy, a change which DABT now relies on as cause for denying Gui-Dom's application, is that the agency changed its legal interpretation of Section 561.65 (1977). (Testimony of LaRosa; P-13)
Recommendation Based on the foregoing, it is RECOMMENDED: That Gui-Dom's application for transfer of alcoholic beverage license no. 23-1901, series 4-COP, be granted. DONE AND RECOMMENDED this 3rd day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.
Findings Of Fact By Stipulation filed September 11, 1986, the parties agreed to findings of fact 1-11. Donna Sawyer filed a preliminary application to participate in the state lottery for liquor license on January 20, 1984, on Department of Business Regulation form No. 747L. On September 18, 1984, Donna Sawyer was notified by Respondent that she had been selected in the lottery held on September 12, 1984, to be eligible to apply for a state quota liquor license. That on or about November 2, 1984, Donna Sawyer, acting through her wholly owned corporation, Sarasota County Liquors, Inc., filed a sworn "application for Alcoholic Beverage License" (Department of Business Regulation Form No. 700L), with the Division of Alcoholic Beverages and Tobacco. That application included a description of a location which was to be the licensed premises. A Personal Questionaire, Department of Business Regulation Form 710L, was also included by Petitioner with said application. The license application was denied by Respondent on March 8, 1985. The grounds for the denial as stated in the denial letter were Petitioner's failure to provide: (1) proof of right of occupancy to the premises Petitioner was seeking to license; (2) verification of financial investment; (3) business name, and (4) sketch of the premises affixed to the application. On April 10, 1985, Sandra Allen, Esquire, acting on behalf of Petitioner, requested an administrative hearing in order to contest the March 8, 1985, denial of the subject license. Joseph Forbes, Esquire, of Gainesville, Florida, was then retained by Petitioner to resolve the denial of the requested license, which was then pending before the Director of the Division of Alcoholic Beverages and Tobacco, as an informal administrative proceeding, pursuant to Section 120.57(2), Florida Statutes. In this capacity, Forbes, among other things filed a Motion for Continuance and Stipulation in this case attached to a June 6, 1985 cover letter. Forbes thereafter reached an agreement in the informal proceeding with Thomas Klein, Esquire, then counsel of record for Respondent, evidenced by letter dated October 1, 1985, which in its relevant portions indicated: This is to continue our telephone conversation of October 1, 1985, in which the following was discussed and agreed upon: Sarasota Liquors - your client will have 45 days from the date of this letter to cure the defects set forth in the March 8, 1985 letter of denial. Please direct your client to respond to the Tallahassee office. In order to rectify the original deficiencies causing the license denial, Petitioner re-filed an Application for Alcoholic Beverage License, Department of Business Regulation Form 700L, including exhibits, with Respondent, on or about November 13, 1985. Petitioner's re-filed license application was denied by Respondent on February 19, 1986, for two reasons: (1) "Application incomplete as applicant does not have right of occupancy to the premises for which she is seeking to license," and (2) "Division is unable to fully investigate applicant's financial documentation." On or about November 4, 1985, while searching for a location to submit as the licensed premises, in the re-filed application of November 13, 1985, Donna Sawyer and Ocie Allen met with Alton Allen at 258 S. Tamiami Trail, Sarasota, Florida, who was an agent for Walter Spector, owner of several retail store spaces at that address. Ocie Allen, acting on behalf of his corporation, Ft. Myers A & T Corporation, entered into a lease for a store at 258 S. Tamiami Trail, Sarasota, Florida. On or about November 4, 1985, Ocie Allen, acting on behalf of his corporation Ft. Myers A & T Corporation, purportedly subleased the premises at 258 S. Tamiami Trail, Sarasota, Florida to Petitioner. That Petitioner had submitted a letter dated November 4, 1984, signed by Jim Irey, as President of Florida Home Equity of Lee County, Inc., which is attached to the November 13, 1985 application, which stated that certain financial support would be available to the subject alcoholic beverage sales contemplated by Petitioner. That as a result of the investigation following the November 13, 1985 application, Respondent was "unable to fully investigate applicant's financial documentation," since Respondent's agents were unable to locate Jim Irey or his company at the address indicated on the November 4, 1984 letter. Based upon the evidence presented, the following additional findings of fact are made: Donna Sawyer's preliminary application to participate in the state lottery for a quota liquor license included instructions to the applicant that it was the first part of a two part application and that the second part would require proof of occupancy for the premises to be licensed. The second part of the application was that license application filed with the Division of Alcoholic Beverages and Tobacco on November 2, 1984, and again on November 13, 1985. As part of the notification that she was eligible to apply for a state quota liquor license, Donna Sawyer was advised that she had 45 days to file a full and complete application and that if she failed to do so, this failure would be deemed as a waiver of her right to file for a new quota liquor license. The letter also advised her that the Division had 180 days from the date of the drawing to act upon her application. The Petitioner's first quota liquor license application was denied on March 8, 1985. March 8, 1985, was within 180 days of the applicable lottery drawing held on September 12, 1984. The agreement of the parties to resolve the March 8, 1985, denial of the subject license evidences an tacit agreement by the parties to waive any applicable time limits existing at that time in order to allow the Petitioner to resubmit a corrected application within 45 days as allowed by the Thomas Klein letter of October 1, 1985. The Division investigated the Petitioner's second application and determined that the applicant did not have a right of occupancy to the premises sought to be licensed, 258 Tamiami Trail, Sarasota, Florida, because Petitioner only had a purported sublease for the subject premises from Ft. Myers A & T Corporation. Ft. Myers A & T Corporation had obtained a lease for the property on November 4, 1985, from Walter Spector, deceased at the time of the administrative hearing. Said lease between Walter Spector, lessor, and Ft. Myers A & T Corporation, lessee, provided that subleases must be approved by the lessor and be in writing. The Petitioner did not produce evidence of written authorization by Walter Spector to allow Ocie Allen or Ft. Myers A & T Corporation, Inc., to sublease the subject premises to the Petitioner or to any other person. The only evidence of such authorization was the hearsay statement by Ocie Allen that Walter Spector had orally given such authorization. Furthermore, Mr. Alton Allen, then agent for Mr. Spector for leasing this property testified he had no knowledge that Mr. Spector was ever informed of a sublease. Therefore it is found that the sublease violated a material provision of the underlying lease from Walter Spector to Ft. Myers A & T Corporation. Mr. Ocie Allen, agent for the Petitioner and Donna Sawyer, testified and it is found that there was no intention for the Petitioner to operate an alcoholic beverage license at the 258 Tamiami Trail location. Petitioner's November 13, 1985, license application was also denied on February 19, 1986, for: Application incomplete as . . . the Division is unable to fully investigate applicant's financial documentation. This denial was due to the Division's agents being unable to verify the availability of financial funding from Florida Home Equity of Lee County, Inc. The Petitioner had submitted a November 9, 1984 letter from that corporation in its November 13, 1985 license application offering certain funding. Upon checking phone directories and making attempted telephone calls to the source named in that letter, the Division was not able to find the named business as source of funding. The Division further investigated Florida Home Equity of Lee County, Inc. as an alleged source of funding by sending an agent, Robert B. Baggett, to the address supplied by the applicant in a November 9, 1984 letter from Florida Home Equity of Lee County, Inc., only to find that no such business was located there and no neighbors knew of a new location. Sandra Allen, Esquire, testified that the source of the funding at the time of the second application was a new company run by the same person who was behind Florida Home Equity of Lee County, Inc., which was named as the source in the November 9, 1984 letter. However, this new company's name and address and verification of continued financial support to the Petitioner could not reasonably be determined by the Division and no evidence was presented that the Division had ever been provided with said new company's name or location prior to the denial of the second license application. Contradictory testimony was presented by Lt. Ewing and Sgt. Mills as to the existence of a policy requiring a "14 day" deficiency notice letter to applicants. It is clear that that policy was not recognized in the office supervised by Sgt. Mills. It was also not established that Lt. Ewing had the authority to set or enunciate policy for the Division.
The Issue The issue in this case is whether the Respondent's alcoholic beverage license should be revoked, suspended, or otherwise disciplined for a violation of Section 562.11, Florida Statutes, a provision of the Florida Beverage Law, which prohibits the sale of alcoholic beverages to a minor. At the formal hearing the Petitioner called as witnesses: Thomas L. Stout, Bernard W. Cooper, Timothy J. Culley, and Craig Brady Cooper. Mr. Antonino Sciarrino testified on behalf of respondent. The Petitioner offered and had admitted into evidence two exhibits and the Respondent offered no exhibits into evidence. Both the Respondent and counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the hearing officer. To the extent that those proposed findings and conclusions of law are inconsistent with the findings and conclusions contained within this order they were considered by the hearing officer and rejected as being unsupported by the evidence or unnecessary to the resolution of this cause.
Findings Of Fact At all times material to this action the Respondent was the holder of beverage license number 21-478, Series 2COP. This license was issued for the licensed premises located at 499 Goodlette Road, Naples, Florida. The licensed premises is a convenience store that also sells various types of food and dry good items plus sandwiches and beer. The Goodlette Food Mart, Inc. is owned and managed by Antonino Sciarrino, the President of the Respondent corporation. The Goodlette Food Mart opened for business on January 1, 1982. Prior to this time Mr. Sciarrino operated a deli in New York City where he also sold beer. Sometime during October, 1982 (the specific date being unknown) , Craig Cooper, a minor, 16 years of age was stopped by a Naples police officer and found to be in the possession of a six-pack of beer. This beer had been purchased by Craig Cooper at the Goodlette Food Mart and he informed the police officer of this fact. Mr. Cooper was asked by the police officer if he would be willing to cooperate in a controlled buy at the Goodlette Food Mart. Mr. Cooper indicated that he would. Subsequent to the October stop Craig Cooper agreed to cooperate with the police in making a controlled purchase of alcoholic beverages at the Goodlette Food Mart and on November 6, 1982, Mr. Cooper was contacted by a Naples police officer and was given cash. He was asked to go to the Goodlette Food Mart and to use the cash he had been given to attempt to purchase alcoholic beverages. From the police station Craig Cooper drove to the Goodlette Food Mart and Officer Culley of the Naples Police Department followed him. While Craig Cooper went inside the Goodlette Food Mart Officer Culley observed from the parking lot, Craig Cooper entered the Goodlette Food Mart and went directly to the cooler area where soft drinks and alcoholic beverages are kept. He removed a six-pack of Heineken Beer. He then proceeded to the cash register and paid for the beer. The cashier on duty was Robert Peterson. He did not question Craig Cooper or ask him for any identification at the time that Mr. Cooper paid for the beer. Mr. Cooper then left the store and turned the beer over to Officer Culley. At the time of the purchase by Craig Cooper, the manager Antonino Sciarrino was not present in the store. Mr. Sciarrino, was in the store 10 to 12 hours a day, but was generally not present in the evenings. Robert Peterson had been hired as a part-time employee approximately two or three months prior to November 6, 1982. Mr. Sciarrino had no prior problems with Robert Peterson and was not aware of any instances where he had sold beer to minors. At the time Robert Peterson was hired, he was instructed to not sell to minors and to always ask for and check identification prior to selling alcoholic beverages. There was also a sign posted in the employees room where they clock in and clock out which warned them that they could be criminally prosecuted for failing to check identification and for selling alcoholic beverages to minors. The Goodlette Food Mart had a policy against selling to minors and all employees were instructed regarding this policy and were required to check identification prior to selling alcoholic beverages. There were signs posted on the cooler and the cash register informing customers that minors were prohibited from purchasing alcoholic beverages and that identification was required, There was also a sign next to the cash register which reminded the cashier to check the customers' I.D. when purchasing alcoholic beverages. This sign also gave the date and year which the birthdate on the identification had to predate in order for the person to purchase alcoholic beverages. The purpose of this sign was to enable employees to more efficiently and more accurately check identifications. Immediately following notification of the November 6, 1982, sale to Craig Cooper, Mr. Sciarrino terminated Robert Peterson's employment with the Goodlette Food Mart.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That thee Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed. DONE and ORDERED this 14th day of October, 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 14th day of October, 1983. COPIES FURNISHED: Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Antonino Sciarrino, President Goodlette Food Mart, Inc. 499 Goodlette Road Naples, Florida Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
