The Issue Did the licensee repeatedly sell alcoholic beverages to persons under the age of 21?
Findings Of Fact At all times material hereto, Respondent, Jayprakash Patel, d/b/a United Discount Beverage, held alcoholic beverage license number 11-00952, Series 2-APS, for a premises known as United Discount Beverage, each side of U.S. Highway 301, Hawthorne, Florida. Joseph Donnelly, a person under the age of 21, purchased alcoholic beverages on April 27, 1990, to wit: three six packs of beer and two bottles of MD 20/20 wine, without identification at United Discount Beverage from Kirtie B. Patel, an employee of the business. Joseph P. Donnelly had purchased alcoholic beverages without identification on previous occasions at United Discount Beverage from Kirtie B. Patel. Madonna Bristow observed Joseph B. Donnelly purchase alcoholic beverages from United Discount Beverages on April 27, 1990 and on several other occasions previous to that date. Mr. Glen Molander observed Joseph P. Donnelly and Madonna Bristow carrying packages from United Discount Beverage on April 27, 1990. A vehicle driven by Joseph P. Donnelly was involved in an automobile accident on April 27, 1990, and was towed to a secured impoundment on that date. His mother, Kathlene L. Donnelly, recovered six cans of beer and two bottles of MD 20/20 wine from the car. Mrs. Donnelly took the beer and wine to her residence where she concealed it. On May 2, 1990, Inv. Jernigan the six cans of beer and two bottles of MD 20/20 wine obtained from the Donnelly's residence. Inv. Jernigan marked these items as evidence and stored in the vault at the Gainesville Division of Alcoholic Beverages and Tobacco District Office. Investigator Jernigan identified at hearing the six cans of beer and two bottles of MD 20/20 wine he had recovered from the Donnelly's residence. Joseph P. Donnelly identified this evidence at hearing as a portion of the alcoholic beverages which he had purchased at United Discount Beverage from Kirtie B. Patel on April 27, 1990. Joseph Donnelly and Madonna Bristow observed many other individuals who they knew to be under twenty-one years old purchase alcoholic beverages from United Discount Beverage without identification. Kirtie B. Patel plead guilty to a charge of selling alcoholic beverages to a person under age 21 in violation of Section 562.11(1)(a), Florida Statutes, Petitioner's exhibit number 1, to wit: underage operative M. Goldtrap on December 14, 1989. Kirtie B. Patel plead nolo contendere to a charge of selling alcoholic beverages to a person under age 21 in violation of Section 562.11(1)(a), Florida Statutes, Petitioner's exhibit number 2, to wit: Joseph P. Donnelly on April 27, 1990. Licensee, Jayprakash Patel, has previously admitted in an administrative proceeding to have been in violation of Section 562.11(1)(a) within Section 561.29(1), Florida Statutes, to wit: three sales of alcoholic beverages by his employees to persons under the age of 21 during the period May 11, 1989 through December 14, 1989. Jayprakash Patel has become a Responsible Vendor since April 27, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the alcoholic beverage license held by Respondent, Jayprakash Patel, d/b/a United Discount Beverage, license number 11-00952, Series 2-APS, be suspended for six (6) months and a $1,000.00 civil penalty be imposed. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. COPIES FURNISHED: Eric S. Haug Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Don Reid Post Office Box 133 Gainesville, FL 32602 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether the respondent committed the violations alleged in the Administrative Action dated June 19, 1996, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with enforcing Florida’s Beverage Law and, specifically, with regulating the sale of alcoholic beverages in the state. Sections 561.02 and .11(1), Florida Statutes. At all times material to this proceeding, Whistle Stop, Inc., held alcoholic beverage license number 60-00055, Series 4COP, for an establishment known as the Whistle Stop, located at 196 and 198 Camino Real, Boca Raton, Palm Beach County, Florida. At all times material to this proceeding, Rose S. DuMond was president and owner of Whistle Stop, Inc. When investigating sales to underage persons, the Department uses “investigative aides.” These aides are under 21 years of age, who must volunteer to participate in the program and have parental consent to do so. Investigative aides are directed to answer truthfully if asked their age; even thought they are also directed to show identification if asked, the aides generally do not carry identification when attempting to make a purchase. An investigative aide always works with a law enforcement person, who must witness the sale. The Department opened an investigation of the Whistle Stop on May 30, 1996, to check for compliance with the laws prohibiting the sale of alcoholic beverages to persons under 21 years of age. An investigative aide attempted to purchase an alcoholic beverage at the Whistle Stop on June 7, 1996, however, the clerk asked for identification and the purchase was not completed. Consistent with the Department’s practice to offer the targeted establishment a second opportunity to sell an alcoholic beverage to an underage person before closing an investigation, a second visit to the Whistle Stop was made on June 15, 1996. At approximately 8:30 p.m., Special Agent Andrew Panzer drove Investigative Aide Timothy Saloney to the Whistle Stop. Timothy was an experienced investigative aide, who, on the night in question, was 19 years of age. Timothy indicated that he had not received any formal training but just did what he was instructed to do by the agent in charge of the investigation. Usually, his instructions were to enter the establishment under investigation, to select a beer from the cooler and put it on the counter, and to leave it on the counter after paying for it. Timothy was also instructed to tell the truth if asked his age; if asked for identification, he was instructed to tell the clerk he did not have any with him. On this particular night, Special Agent Panzer instructed him to leave his identification in the vehicle. He was to enter the Whistle Stop package store and to attempt to purchase one Budweiser beer. The package store was locked, but a man opened the door of the adjacent lounge area and beckoned him in. Timothy went into the lounge, walked to the bar, and asked Rose DuMond, who was tending bar that night, for a Budweiser. She asked “Are you old enough?” Timothy did not answer by telling Ms. DuMond the truth about his age; rather he replied “Well, what do you think?” or “Why, don’t I look old enough?” Ms. DuMond replied something to the effect that he looked old enough, but she did not ask for identification. She placed a glass on the bar in front of Timothy and poured part of a bottle of Budweiser beer into the glass. She rang up the sale, and Timothy paid for the beer. Agent Panzer entered the bar right after Timothy and stood in the back because Ms. DuMond knew him. He observed Timothy at the end of the bar, saw him in conversation with Ms. DuMond, and saw her serve him the beer. After Timothy had paid Ms. DuMond, Agent Panzer signaled him to leave the bar. Agent Panzer moved forward, took possession of the bottle of beer, and poured some of the contents of the glass into a specimen bottle, which he then sealed. The evidence is clear and convincing that Ms. DuMond sold an alcoholic beverage to a person under the age of 21 years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order finding Whistle Stop, Inc., guilty of violating section 562.11(1), Florida Statutes (1995), imposing an administrative fine in the amount of $1,000, and suspending its license for a period of seven (7) days. DONE AND ENTERED this 24th day of February, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1997. COPIES FURNISHED: Thomas D. Winokur, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Jeff M. Brown, Esquire Lavalle, Brown, Ronan and Soff, P. A. 750 South Dixie Highway Boca Raton, Florida 33431 Richard Boyd, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this matter is whether the Respondent's 1 APS license 15-00386 should be disciplined because of the matters alleged in the Notice to Show Cause filed herein.
Findings Of Fact At all times pertinent to the allegations in issue here, the Division was the state agency responsible for the licensing of the sale of alcohol and alcoholic beverages in Florida. Respondent operated the S & D Food Market at 531 Blake Avenue, Cocoa. On August 27, 1991, SA Wylie, a member of the Division's Orlando office, was, along with several other Special Agents, including SA Felton, assisting the Florida Department of Law Enforcement to serve search warrants and search covered premises, including that of the Respondent. When he arrived at the Respondent's facility he asked the clerk on duty to show him the alcoholic beverage license for the store and determined it permitted only the sale of packaged beer for off-premises consumption. He conducted an inspection of the store to insure only beer was being sold in compliance with the license and discovered several bottles of wine in the cooler along with wine cooler and beer. These items were in the display section open to the public. Mr. Wylie went around back into the cooler and found more wine, and when he went into the store's back storage room, found cases of wine stacked up against the wall. When he saw this, he went back to the clerk and asked why wine was being sold when the license permitted only the sale of beer. The clerk claimed to know nothing about it. Wylie asked for the invoices for the wine purchases and the clerk went to get them. While waiting in the office, Mr. Wylie also saw several cartons of cigarettes which showed a Publix stamp on the end. The presence of these stamps on the cartons indicated to him that the cigarettes had been purchased at Publix and not from a wholesale distributor. He assumed the cigarettes were for resale, though all other cigarettes in the store were in the display rack out front. These cigarettes were legal. When the clerk came back with the invoices, Wylie also asked him for the purchase receipt for the cigarettes and the clerk went to get that, too. In the meantime, SA Felton arrived on the scene and Wylie turned over all the wine and the cartons of cigarettes to her. Felton inventoried the wine and determined there were in excess of 76 full cases of wine in addition to numerous loose bottles.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered in this case dismissing the allegation that Respondent, Edward Andre Jones, possessed cigarettes not purchased from a wholesale dealer, but finging him Guilty of the allegation of possessing unauthorized alcoholic beverages on the premises covered by 1 APS license 15- 00386; placing his license on probation for one year, and assessing an administrative fine of $1,000.00. RECOMMENDED in Tallahassee, Florida this 27th day of January, 1993. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1993. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Lane Vaughn, Esquire 2007 South Melbourne Court Melbourne, Florida 32901 Janet E. Ferris Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue The Division of Beverage seeks to assess a civil penalty against, or to suspend or revoke beverage license 23-748 issued to Respondent setting forth the following two reasons as alleged in the administrative complaint: 1/ That on June 2, 1975, investigation revealed that Respondent failed to disclose an interest of Daniel Guthry, in its sworn application dated February 4, 1971, contrary to Section 561.17, Florida Statutes. That, on or about June 16, 1975, investigation revealed that Respondent conspired to violate the beverage laws by permitting a person found not qualified, to engage in the business of selling or dealing in any way in alcoholic beverages, contrary to Florida Statutes, 562.23 to wit, Florida Statutes 561.17. Based upon my observation of the witnesses and their demeanor while testifying, I make the following:
Findings Of Fact Florence Fitzgerald is the mother of Daniel Guthry. Mr. Guthry is a graduate of the Cornell Hotel and Restaurant School and a graduate of the Miami Law School. While a student at the University of Miami Law School, Guthry opened a small restaurant known as the Ale House which was a college pub. It was successful until sometime in 1965 when a civil law suit was filed and the Ale House was closed. The contention of the Petitioner is that Guthry owned 100 percent of Specialty Taverns of America, Inc., and that he attempted to transfer the license from the Ale House to the Stable which was a restaurant located on 79th Street which was then owned by a Virginia Mariani. 2/ Petitioner alleges that Guthry attempted to effectuate this transfer while he had been previously denied a license based on a prior beverage law violation during his operation of the Ale House. Petitioner introduced checks indicating that Guthry had drawn checks to pay for salaries, beer and wine and other day to day operations of The Depot. Daniel Guthry was also the owner of Collegiate Marketing and Petitioner contends that Collegiate Marketing and Specialty Taverns, Inc., are interrelated corporations and through this interrelationship, bills are paid for The Depot. Evidence was also introduced indicating that Guthry paid bills for both Collegiate Marketing and The Depot including phone bills and other personal items such as parking tickets, haircuts, medical and dental expenditures, property taxes, repair bills, stocks and other incidental items. The contention is further made that Guthry holds himself out as being the owner of The Depot and that while he operated the Stable, he wanted a 4-COP license which is a license which allows the licensee to sell mixed drinks, beer and wine whereas he then owned a 2-COP license which only permitted him to sell beer and wine. A check was also introduced by Petitioner indicating that Guthry had drawn a check for $1,000 in payment to his mother, Mrs. Fitzgerald. Finally, the contention is made that by these acts, Guthry has free control of The Depot for all receivables and that there is absolutely no control by Fitzgerald over the licensed premises. It is further alleged that Guthry advised several persons including suppliers that he was the owner of The Depot. At the conclusion of the Petitioner's case, Respondent moved for a dismissal based on an allegation that Petitioner had advanced no evidence indicating that there was a conspiracy nor was there any evidence of any intent or interest on the part of Daniel Guthry. The undersigned denied the motion for dismissal inasmuch as there was, at least in the undersigned's opinion, sufficient evidence to indicate that a prima facie case had been established. Richard H. W. Maloy, an attorney practicing since 1953 in Dade County, Florida, indicated that he has represented Florence Fitzgerald in sundry matters since 1968 and he also represented Daniel Guthry during the late 1960's. Guthry approached Maloy sometime in the early `70's about forming a corporation to purchase the license on 79th Street (The Stable). Maloy checked with the Secretary of State to see if the corporate name, Specialty Taverns, Inc., was available and when he determined that it was, articles were drawn up showing that Guthry owned 80 percent of the shares while Maloy owned 10 percent and another undisclosed person owned the remaining 10 percent. The corporation was formed on February 4, 1970. According to Maloy, Guthry wanted to make application immediately with the Division of Beverage to effectuate a transfer and personal data forms were submitted on Guthry, Mr. Hanson and Mr. Maloy to the Division of Beverage. On February 5, 1970, a signed application was submitted to the Division of Beverage and on the following day a health inspection was made of the premises. Maloy was advised on February 11, that the stock was to be transferred to Fitzgerald and not Guthry. It should be noted that at that point, the license transfer application had been filed. This advice came to Maloy via a telephone call from Mrs. Fitzgerald who advised that she had tendered all the money and was liable for all the other obligations for the premises in question. At that time, all stock rights were given to Mrs. Fitzgerald and while Guthry remained as president, he owned no stock. He testified that he was unaware that Guthry had previously made application to the Division of Beverage and had been rejected when the above referenced application was submitted. According to the evidence, that application was filed on or about February 20, 1970 and Guthry listed himself as being the owner of the Stable. A report was rendered to the Division of Beverage on April 3, 1970, indicating that Guthry had violated the beverage laws while he operated the Ale House in the late 1960's. Maloy received a certified copy of Guthry's beverage violation at the Ale House on April 17, 1970. The Division of Beverage denied his application on May 12. Mr. Kimbrow advised Maloy that since Mrs. Fitzgerald owned all the stock etc., that she should submit her application for the license transfer and this was done on February 4, 1971. On May 22, 1970, Guthry resigned as president of Specialty Taverns of America, Inc. On April 14, 1971, the transfer application was approved and it was transferred from Mrs. Morioni, the prior owner to Mrs. Fitzgerald. On October 1, 1971, the license fee of $1,750 was paid. The license was held in escrow until February 11, 1972. During the period February to May of 1972, plans were made by Fitzgerald to purchase the restaurant and during that period, all ideas regarding its operation were formulated by Guthry. Maloy testified that he frequents the restaurant on a regular basis and he has witnessed both Daniel Guthry and Mrs. Fitzgerald present and he is personally aware that Mrs. Fitzgerald is the sole owner of the Depot's stock. He also testified that Guthry exercises managerial authority. Mrs. Fitzgerald testified that she is very active in the business and she hires and fires employees. She maintained records of checks and reconciles all cancelled checks. She owns the company outright and purchased it in part by obligating herself for a $50,000 mortgage from the First National Bank of South Miami. She testified that her son Daniel Guthry, only manages the restaurant. She testified that while he manages the restaurant, she maintains absolute control over the entire operation and that Guthry received no benefit from the appreciation of the business. Guthry testified that the Depot was opened on February 8, 1974. He testified that he can only hire and fire employees with his mother's consent and that he never invested any money in the Depot. Arnold Hampton, a certified public accountant, for the Depot, testified that the corporation has had a net loss carried forward at least since 1974, and that Fitzgerald advanced loans to the corporation on an as needed basis. He testified that checks were used to repay the loans that she had advanced, which according to him were the checks received into evidence. Barry Tamlon, an employee at the Depot and a prior employee of the Ale House since 1966, testified that he was the former manager of the Ale House. He testified that Fitzgerald manages the Depot on a continuous basis and that Guthry does so incidentally, during his extensive travels on an intermittent basis. Mrs. Fitzgerald testified that her son only derives prestige and fulfillment from operating a successful restaurant but that he receives no economic compensation other than incidental expenses. In conclusion she testified that he received no profits from the corporation and has no obligations to repay any of its bills. Based on the above facts, the undersigned finds that there is insufficient evidence to establish that Mrs. Florence Fitzgerald and her son Daniel Guthry engaged in a conspiracy to violate the beverage laws as alleged or that Respondent failed to disclose the interest of Daniel Guthry. It is clear from evidence introduced that Guthry has no ownership or other interest in the licensed premises. Mrs. Fitzgerald whose testimony as corroborated by Maloy lends support for Respondent's claim that Mrs. Fitzgerald is the sole owner of approximately eighty percent (80 percent) of the Depot's stock. While the evidence indicates that Guthry manages the Depot apparently without much restriction from Mrs. Fitzgerald, there has been no showing and no claim is made by Petitioner that a person who has previously violated a beverage law is incapable of managing a restaurant that has a beverage license. Based on these findings, I therefore conclude that Petitioner has failed to establish that Respondent has engaged in the conduct as alleged in its administrative complaint. I shall therefore recommend that it be dismissed in its entirety.
Recommendation Based on the above finding and conclusions, I recommend that the complaint filed herein be dismissed in its entirety. DONE and ENTERED this 21st day of September, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact 1718, Inc. held alcoholic beverage license number 58- 1581, Series 2-Cop; for the premises of the Fox Hunter, 1718 South Orange Avenue, Orlando, Florida, at all times relevant to these proceedings. The license was issued on June 18, 1981. Although the testimony of Captain Jack B. Wallace that John and Fay Knight (Knights) were the owners of the real property located at 1718 South Orange, Orlando, Florida, went unrebutted, the record does not reveal the date when John and Fay Knight became the owners of the real property located at 1718 South Orange Street, Orlando, Florida. The Knights were absentee landlords and leased the premises to 1718, Inc. d/b/a/ Fox Hunter (Fox Hunter) through a real estate agency in Orlando, Florida. On June 3, 1985 Petitioners mailed a letter to the Knights informing them that the alcoholic beverage license of Fox Hunter had been suspended on an emergency basis due to 13 alleged sales of narcotics on the premises by employees of Fox Hunter; that Respondent had requested a hearing on the charges; that Petitioner would seek license revocation with prejudice as provided in Section 561.58, Florida Statutes (1983); that the Petitioner would present evidence at the hearing in support of license revocation with prejudice; and that the Knights would be advised of the date, time and location of the hearing at a later date. The record does not reveal that Petitioner ever advised the Knights as to the date, time and location of the hearing, however, counsel for Respondent announced at the time of the hearing that he would be representing the Knights. Additionally, the record does not reveal that a copy of the original or Amended Notice To Show Cause was ever furnished to the Knights. Nor does the record reveal that the Knights had any knowledge of any previous violations at the premises. On April 29, 1985, Orlando Police Officer Kerry Farney (Farney) went to the premises of Fox Hunter and spoke to dancer Joyce Travis concerning the purchase of cocaine. Joyce agreed to sell Farney a half gram for $50.00. Farney gave Joyce $55.00, including $5.00 for a dance which she performed, and Joyce returned to Farney a dollar bill wrapped around two- plastic packages of cocaine. Officer Farney returned to the Fox Hunter on April 30, 1985, and spoke with dancer Lisa Nolen a/k/a Dusty concerning the purchase of a quarter gram of cocaine. Dusty agreed to sell the cocaine and obtained $25.00 from Farney. She later returned to Farney and handed him a plastic package containing cocaine. Officer Farney again returned to the Fox Hunter on May 2, 1985 and was later met there on this same day by Investigator Rodney Russ (Russ). The Officers arranged to purchase cocaine from the dancer Dusty. Farney gave Dusty $30.00, $5.00 for a dance and $25.00 for a quarter gram of cocaine. Russ gave Dusty $50.00 for one half gram of cocaine. After going into the dancers' locker room, Dusty returned to the officers and handed to Farney a dollar bill wrapped around two plastic packages of cocaine and asked Farney to pass it to Russ. Farney passed the cocaine wrapped in the money to Russ which Russ opened and inspected the two plastic-packages of cocaine contained therein. Later that same night Dusty delivered the cocaine to Farney which he had paid for earlier. Russ returned to the Fox Hunter on May 3, 1985 and entered into conversation with dancer Laura, who asked if he was looking for a quarter gram of cocaine. Russ stated that he wanted a half gram and Laura responded that she would see what she could do. After speaking with an unknown male patron, Laura returned to Russ and stated that all he had left was three- tenths of a gram for $30.00. Russ stated that he would take the three tenths of a gram and gave Laura $30.00. Laura again approached the unknown patron and then returned to Russ after being assured by Russ that he was not a cop or with law enforcement, placed a bill in his pocket. Russ removed and opened the bill and inspected the plastic package of cocaine. Russ returned to the Fox Hunter on May 7, 1985 and entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. Joyce stated that she would be able to get it later. Joyce subsequently asked Russ how much he wanted to buy and Russ responded that he wanted a half gram. Russ gave Joyce a $100.00 bill and she went into the women's dressing room. Joyce later returned to Russ and gave him $25.00 change wrapped around two clear plastic packages of cocaine. Russ returned to the Fox Hunter on May 8, 1985, and was solicited by dancer Joyce for the purchase of two beers. Russ returned to the premises of the Fox Hunter on May 9, 1985, and entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. Joyce left Russ to talk to an unidentified black male and returned to inform Russ that she could get the half gram of cocaine from the black male after he split it up and that Russ would have delivery soon. The male went into the restroom and when he emerged from the restroom, Joyce approached him and then went into the women's restroom. After exiting the restroom, Joyce performed a dance for Russ, during which she told him to take a dollar bill out of her garter. Russ took the dollar bill and opened it up to inspect two tinfoil packages of cocaine. Russ returned to the licensed premises on May 10, 1985, and again entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. When Joyce agreed, Russ handed her $75.00. Joyce subsequently returned to Russ and handed him a plastic package of cocaine which Russ placed into the cellophane wrapper of his cigarette pack. Joyce stated that the person from whom she had obtained the cocaine only had a quarter gram but would be getting a delivery soon, at which time Joyce would give Russ his other quarter gram. Russ did not obtain the additional quarter gram prior to leaving the premises on this occasion. Russ returned to the Fox Hunter later the night of May 10, 1985 and spoke with Joyce about obtaining his remaining quarter gram of cocaine and she advised him that delivery had not been made. Russ then talked with dancer Laura about obtaining some cocaine. Laura first said that it would be after 2:00 a.m. when the bar closed but when Russ told her he could not wait that long she obtained a short quarter gram from an unidentified white male. Laura then left to go into the women's restroom. When she returned to Russ, Laura placed a plastic package of cocaine in his pocket stating that she had tried the substance and it was good. Russ removed the package from his pocket and inspected it. As Russ was leaving, Joyce approached him near the entrance and handed him a plastic package containing his remaining quarter gram of cocaine. Russ returned to the premises of the Fox Hunter on May 15, 1985, and was solicited by the dancer Dusty to purchase her a bottle of champagne for $5.75, which he did. Russ again went to the Fox Hunter on May 16, 1985 and entered into conversation with the dancer Laura concerning the purchase of a half gram of cocaine. Laura stated that she would be able to get him some. Laura approached and spoke to an unknown patron and the dancer Michelle, after which she went into the women's dressing room. She shortly returned to Russ and placed two plastic packages of cocaine into his pocket. On May 17, 1985, the Respondent served an Emergency Order of Suspension and Search Warrant on the Fox Hunter. Located during the search was a dollar bill wrapped around a package of cocaine, a plastic package of cocaine, a package of marijuana and several marijuana cigarettes. The sale or delivery of the cocaine on April 29, 30, 1985 and May 2, 3, 7, 9, 10, 16, 1985 to investigator Farney and Russ took place in and around the dance area of the premises. On April 20, 1982 the Respondent served a letter of warning to Fox Hunter alleging that on August 4, 1981, an employee had solicited the sale of an alcoholic beverage in violation of Section 562.131, Florida Statutes and further alleging that on October 30, 1981, an employee had delivered a controlled substance to a police officer on the premises. No proof was offered as to the disposition of those matters, or indeed, whether the incidents ever actually took place. In July, 1984, the manager of Fox Hunter --Lawrence Siegel -- apprehended one of its employees and a patron engaged in a drug transaction: he detained them and called the Orlando Police Department, and the two were taken into custody. The Petitioner's response to this action was to issue a citation against the Fox Hunter for the alleged sale, even though it was Lawrence Siegel who uncovered the transaction and apprehended the perpetrators. Mr. Siegel contacted Lt. Farmer of the Orlando Police Department and requested assistance in placing an undercover officer in the lounge as an employee. Mr. Siegel wanted to interdict narcotics and assist in the apprehension of the persons who might be dealing with them. However, the request was turned down because, as Lt. Farmer explained, the police department did not have the necessary resources to assist in this manner. The record is not clear as to the period of time Lawrence Siegel maintained contact with the police, but he did contact them about the problem, identifying suspected dealers and providing names and descriptions of vehicles. However, Jason Robaudo replaced Lawrence Siegel as night manager during this period of time. James Robaudo was present in the licensed premises during most of, if not all of, the time during which the unlawful activities accursed. Although the record is not entirely clear on the details, there were other alcoholic beverage establishments in the same general area that had been charged with the sale of controlled substances on the premises where a heavy fine plus a short license suspension had been imposed rather than a license revocation or a license revocation with prejudice.
Recommendation For all of the foregoing reasons it is RECOMMENDED that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 58-1581, Series 2-COP, issued to 1718, Inc., d/b/a Fox Hunter. Respectfully submitted and entered this 3rd day of September, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 September, 1985. COPIES FURNISHED: Louisa E. Hargrett, Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Richard L. Wilson, Esq. 1212 East Ridgewood Street Orlando, Florida 32803 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr. Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
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 Whether petitioner's application for a beverage license should be denied on the ground that she was convicted of a beverage law violation within the past five years.
Findings Of Fact In April, 1981, Applicant applied to the Division for a 2-COP alcoholic beverage license. If granted, the license will allow her to sell beer and wine for consumption on the premises of her business, Disco Junction, located at 1702 Hammondville Road, Pompano Beach, Florida. (R-2.) Court records indicate that, by judgment dated January 22, 1981, Applicant was convicted by the County Court of Broward County on three charges of selling liquor without a license. She was sentenced to 90 days' probation and required to pay certain fines, contributions, and costs. These beverage law violations constitute the sole ground for the Division's denial of her license. (Testimony of Boyd; R-1.) In December, 1980, Applicant met William Piroth, a Pompano Beach police officer. He is assigned to investigate crimes committed in the area of Pompano Beach where she seeks to operate her business establishment. Since December, 1980, she has assisted him by providing information concerning criminal activity in the area. If she is licensed, she has promised to continue doing so. (Testimony of Broadway, Piroth.) Based on her help in the past and her promise of continued assistance in the future, Officer Piroth asked the Broward County Court to set aside her earlier conviction so that she would be able to qualify for a beverage license. The court granted his request and, by order rendered on August 25, 1981, set aside its earlier judgment and withheld adjudication. (Testimony of Piroth;
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Applicant's request for a beverage license be GRANTED. DONE AND ORDERED this 1st day of December, 1981, 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 1st day of December, 1981.
The Issue Was the Petitioner's application denied for good cause and is the Petitioner entitled to the beverage license for which he applied?
Findings Of Fact Henry McCalister and Willie Mack applied for a beverage license to the Division of Alcoholic Beverage and Tobacco, Department of Business Regulation. Willie Mack was notified that this application was to be denied because he had been convicted of a felony within the past 15 years pursuant to Section 561.15, Florida Statutes. He was further advised that he was entitled to a hearing pursuant to Section 120.57, Florida Statutes. The Respondent failed to produce at hearing any evidence of Mack's conviction of a felony.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Respondent issue the applicant the beverage license for which they applied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of September, 1978. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Willie Mack 834 Robinson Avenue Jacksonville, FL 32209 Francis Bayley, Esq. Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32304
Findings Of Fact Aki-San held an alcoholic beverage license which expired October 1, 1977. Only on January 10, 1978, did Aki-San make application for "delinquent renewal" of its license. In the unlicensed interim, one of respondent's truckdrivers continued to deliver Kirin beer to Aki-San. At all pertinent times, respondent was licensed as a distributor of alcoholic beverages. Respondent employs numerous truckdrivers to distribute alcoholic beverages to some 2,000 licensees under the beverage law. Each driver has a route book containing the license number of each of the customers for which he is responsible. The truck drivers have standing instructions to insure, before delivering alcoholic beverages, that the licensees they serve have renewed their licenses for the year. Posted on a bulletin board on respondent's premises, in October of 1977, was a notice reminding the drivers to ascertain whether their customers' licenses had been renewed.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the notice to show cause issued in this case. DONE and ENTERED this 17th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Clifford Distributing Company 990 S.W. 21st Terrace Ft. Lauderdale, Florida Mary Jo M. Gallay Staff Attorney 725 South Bronough Street Tallahassee, Florida 32304
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: At all times material to the instant case, Respondent has held alcoholic beverage license number 16-07413, authorizing him to sell alcoholic beverages on the premises of Pic A Pac (hereinafter also referred to as the "Store"). Respondent was the owner of Pic A Pac until February of 1994, when he sold the Store. Pic A Pac is a "drive-through" convenience store located at 3390 West Davie Boulevard in Fort Lauderdale, Florida. It has two "drive through" windows at which motorists are able to purchase items without leaving their vehicles. On the evening of June 12, 1992, John Raymond drove up to one of these windows in his red, four-door, 1987 Ford Escort and asked Respondent, who was manning the window, for two bottles of Jack Daniels Lynchburg Lemonade, a "wine cooler" product that is marketed as an alcoholic beverage. Raymond was born on September 25, 1974, and thus was only 17 years of age on June 12, 1994. Notwithstanding that he had shoulder length hair and was wearing a nose ring and an earring, Raymond's appearance that evening was not such that an ordinarily prudent person would have believed him to be 21 years of age or older. 2/ Moreover, Raymond neither said nor did anything to give Respondent reason to believe that he was not under 21 years of age. He did not show Respondent, nor did Respondent ask him to produce, any identification. Nonetheless, Respondent sold to Raymond the two bottles of Jack Daniels Lynchburg Lemonade that Raymond had requested. He did not give Raymond a receipt. After Raymond paid him, Respondent put these alcoholic beverages in a brown paper bag and handed the bag to Raymond. 3/ He did not give Raymond a receipt. Raymond took the bag and placed it on the disengaged emergency brake between the driver's and front passenger seat. The latter was occupied by Respondent's companion, Jason Campbell, who like Raymond, appeared to be well under 21 years of age. Raymond then drove off. 4/ The transaction between Respondent and Raymond was observed, through binoculars, by Albert Heinermann, a special agent with the Department, who, along with two other Department special agents, was on surveillance in the area. Heinermann was in a vehicle parked approximately 40 to 50 yards from the Store. When Heinermann saw Raymond drive off, he followed after him in his vehicle and pulled him over less than a block from the Store. A search of the vehicle revealed the paper bag containing the two bottles of Jack Daniels Lynchburg Lemonade that Raymond had purchased from Respondent. The bottles were unopened. Heinermann confiscated the alcoholic beverages and arrested Raymond and Campbell. One of the other special agents working with Heinermann that evening, Mike Fraher, went to the Store and arrested Respondent. Criminal charges were filed against Respondent. After the conclusion of the criminal case, the two bottles of Jack Daniels Lynchburg Lemonade that Raymond had purchased from Respondent and that Heinermann had confiscated were destroyed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order dismissing the charge in the Notice to Show Cause that Respondent unlawfully possessed fireworks on his licensed premises, finding Respondent guilty of the charge in the Notice to Show Cause that he unlawfully sold alcoholic beverages on his licensed premises to a person under 21 years of age, and penalizing Respondent for such unlawful conduct by suspending his alcoholic beverage license for a period of seven days and fining him $1,000.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1994. STUART M. LERNER 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 24th day of June, 1994.
