Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, revoke alcoholic beverage license number 23-1341, Series 2-COP, held by Maritza Garcia, d/b/a Maritza's Pub. RECOMMENDED this 23rd day of May, 1985 in Tallahassee, Florida. Hearings 1550 Hearings J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 FILED with the Clerk of the Division of Administrative this 23rd day of May, 1985.
The Issue This case concerns the entitlement of the Petitioner, Price Candy Company, Inc., trading as St. James Place, to be granted a new Series 2-COP beverage license from the State of Florida, Division of Alcoholic Beverages and Tobacco.
Findings Of Fact Beginning on June 13, 1978, the Petitioner, Price Candy Company, Inc., began the process of applying for a new Series 2-COP beverage license to be issued by the State of Florida, Division of Alcoholic Beverages and Tobacco. This license was to be issued for a premises located at 117 West Duval Street, Jacksonville, Duval County, Florida. The establishment for which this license is intended is a restaurant located in a building known as the May Cohens Building. The Petitioner leases a portion of that building from May Cohens and the balance of the building which constitutes the structure of the prospective licensed area, is controlled by May Cohens. The part of the building controlled by the Petitioner as a street entrance into the dining room area of the restaurant and an entrance from the May Cohens part of the building, which is an interior entrance to the restaurant. These entrances may be seen in examining the Respondent's Exhibit No. 1 admitted into evidence, which is the Petitioner's sketch of the prospective licensed premises which was submitted to the Respondent as a part of the application. Within this diagram are several pencilled changes to the sketch which represent the current state of the building showing an extension of a wall, thereby closing off any direct access from May Cohens to the restrooms associated with Petitioner's restaurant. On May 30, 1979, the Director of the State of Florida, Division of Alcoholic Beverages and Tobacco indicated his intent to deny the application stated that the reason was "Premises to be licensed is connected to other areas over which the applicant will have no dominion or control." As authority for that statement the Director referred to Subsection 561.01(11), Florida Statutes.
Recommendation It is recommended that the Petitioner, Price Candy Company, Inc., trading as St. James Place, be granted a new Series 2-COP beverage license. DONE AND ENTERED this 19th day of December, 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: James M. Bailey, Area Supervisor Price Candy Company, Inc. 117 West Duval Street Jacksonville, Florida 32204 Daniel C. Brown, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
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 the Application for Alcoholic Beverage License dated March 9, 1988, filed by Ocie C. Allen, Jr., should be approved by the Respondent?
Findings Of Fact Ocie C. Allen, Jr., d/b/a OCA, filed an Application for Alcoholic Beverage License dated March 9, 1988 (hereinafter referred to as the "Application"), with the Division. In the Application, Mr. Allen indicated under "Type of Application" that the Application type was "Other - ownership change because of contract and change of location." Mr. Allen listed himself as the "Applicant" and signed the Application as the "Applicant." The "Current License Number" listed in the Application to be transferred to Mr. Allen is 62-03498, current series 4 COP. The holder of this license was Terri Howell. At the end of the Application there is an "Affidavit of Seller(s)" to be executed by the licensee from whom the license is to be transferred. This affidavit has not been completed in the Application. The purchase price for the business was listed as $86,250.00. By letter dated March 16, 1988, the Division returned the Application to Mr. Allen and informed him that it was being returned for the following reasons: (1.) Need copy of loan in the amount of $86,250.00. (2.) If there are other agreements concerning this change, we will need copies. (Closing Statements) (3.) Need Affidavit of Seller signed by Ms. Howell making sure signature has been notarized on both applications. (4.) If no business name, please use applicants [sic] name also in that blank. Mr. Allen returned the Application to the Division with a letter dated March 21, 1988, and indicated, in part, the following: The Loan of $86,250.00 is 75% of the appraised value for which a 4 COP license was sold in Pinellas County prior to Ms. Howell winning the drawing. This amount is reduced by the amounts she has received from the operation of Spanky's. Thereby the actual amount owed by me to Ms. Howell is $86,250.00 LESS the amount she has received during the operation of Spanky's, approximately, $60,000.00. The Application was not modified by Mr. Allen. In a letter dated March 24, 1988, the Director of the Division requested the following additional information from Mr. Allen: (1.) Need Affidavit of Seller signed by Ms. Howell making sure signature has been notarized on both applications. (2.) Complete (No.5) Type of License Desired: (Series ). By letter dated March 28, 1988, Mr. Allen responded as follows to the Division's request for information: Enclosed is the application for transfer. Ms. Howell signature [sic] on the Independent [sic] Contractor Agreement is the only signature of hers that will be furnished to you. By letter dated April 4, 1988, the Division informed Mr. Allen that Terri Howell, the licensee, needed to sign the Affidavit of Seller. The Division notified Mr. Allen that it intended to deny the Application in a letter dated May 31, 1988. Mr. Allen was provided a Notice of Disapproval of the Application in a letter dated June 29, 1988. The following reasons were given for denial of the Application: Application to transfer the license does not bear the signature of the current licensee and, therefore does not evidence a bonafide [sic] sale of the business pursuant to [Section] 561.32, Florida Statutes. Application incomplete as applicant has failed to provide complete verification of his financial investment. Also, applicant has failed to provide records establishing the annual value of gross sales of alcoholic beverages for the three years immediately preceding the date of the request for transfer. The Division is, therefore, unable to fully investigate the application pursuant to Florida law. By letter dated July 19, 1988, Mr. Allen requested a formal administrative hearing to contest the Division's denial of the Application. Mr. Allen sent a letter to the Division dated October 27, 1988, with an Affidavit requesting permission to pay a transfer fee of $5,000.00 "in lieu of the 4-mill assessment."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case dismissing the case with prejudice. DONE and ENTERED this 17th day of January, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1989. COPIES FURNISHED: Ocie C. Allen, Jr. Post Office Box 10616 Tallahassee, Florida 32302 Lt. B. A. Watts, Supervisor Division of Alcoholic Beverages and Tobacco Department of Business Regulation 345 S. Magnolia Drive, Suite C-12 Tallahassee, Florida 32301 Harry Hooper Deputy General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927
Findings Of Fact Respondent, Seminole Park and Fairgrounds, Inc., holds alcoholic beverage license number 69-255, Series 12, RT, which licensed premises is located at Seminole Greyhound Park, a greyhound racing facility in Casselberry, Florida. The officers of this corporation who are accused of filing false personal questionnaires with Petitioner are Paul Dervaes, Jack Demetree, William Demetree and Ernest Drosdick. Paul Dervaes and William Demetree also filed a certificate of incumbency and stock ownership which is also alleged to have been false. The principal issue concerns the involvement of John Fountain in the affairs of Seminole Park and Fairgrounds, Inc. Fountain is a convicted felon who was adjudicated guilty of bookmaking in the Jacksonville Federal District Court in October, 1972. The principal parties to this matter, Paul Dervaes, Jack and William Demetree and Ernest Drosdick knew from the outset that John Fountain was a convicted felon ineligible for licensing in this state under either the pari- mutuel or beverage laws. John Fountain conceived the idea of acquiring Seminole Park and Fairgrounds, Inc., a money-losing harness racing facility, and obtaining necessary legislation to convert the facility to greyhound racing. Fountain first brought this idea to his long-term friends and business associates, Jack and William Demetree, in the mid to late 1970's. Fountain also initiated the involvement of another longtime friend, Paul Dervaes, as President of Seminole Park and Fairgrounds, Inc. When the enterprise was short of cash in late 1978 and early 1979, Fountain made successive loans of $152,000 and $169,499.82 to the corporation through Paul Dervaes for use in converting and operating Seminole Park. When the necessary legislation was passed to convert to a greyhound facility, John Fountain, for several months, worked long hours without any salary as head of the physical conversion project for the Demetrees. Fountain originated the Super 8 betting feature at Seminole Park, one of the cornerstones of the track's promotion and publicity endeavors. Fountain also, after the conversion was complete and the facility was opened for business, authorized complimentary meals and drinks at the licensed premises at Seminole Park and authorized petty cash disbursements for a wedding present for a newspaper reporter and the distribution of gasoline without charge from Seminole Greyhound Park's fuel tanks. On March 31, 1980, Paul Dervaes, who at the time held 53 percent of the outstanding stock of Seminole Greyhound Park, sent a memo to William Demetree and sought to extricate himself from a managerial position at the track on the basis that the Demetrees appeared not to be satisfied with his managerial abilities. In this memo, Dervaes identified himself as a minority stockholder of the enterprise, despite his then ownership of a majority of 53 percent of the shares of stock. Respondent has sought to explain such incongruity by candidly admitting that Dervaes was fronting for John Fountain as to 43 shares or 43 percent of the stock in Seminole Park. As this time, Ernest Drosdick, who had for years handled all legal affairs for Seminole Park as well as for William Demetree, advised Dervaes and Jack and William Demetree that the loans to Seminole from John Fountain through Paul Dervaes had to be repaid so that the involvement of Fountain could be terminated. Drosdick's advice was predicated on Fountain's felony conviction and he noted that Fountain's continued involvement in such manner would be violative of the pari-mutuel and beverage licensing laws. The corporation thereupon obtained $321,499.82 in early April of 1980, such sum being the total of the principal but not interest due on the $152,000 and $169.499.82 loans made from John Fountain to Seminole Park through Paul Dervaes. Drosdick's advice was not consistently applied, however, with regard to recalling the loans from John Fountain. The $321,499.82 was paid by check to Paul Dervaes on April 1, 1980, which Dervaes deposited in his bank account. William Demetree then asked Dervaes if $160,000 of the funds just paid him could be borrowed back from Fountain despite Drosdick's advice against such loans. The re-loan was agreeable with Fountain and on April 9, 1980, Dervaes wrote a check in the amount of $160,000 back to Seminole Park and Fairgrounds, and on April 21, repaid the remaining $161,499.82 to Fountain. The $160,000 loan was reflected in an April 9, 1980, note signed by William Demetree as Chairman of Seminole Park and Fairgrounds, Inc. It was also acknowledged by William Demetree that he knew the money was coming from John Fountain. It is this loan, which was repaid as to principal only in November of 1980, that was not reflected on the personal questionnaires of each of the principal parties. At the time the April 9, 1980, $160,000 loan was made by Fountain to Seminole Park through Dervaes, all of the principal parties, Paul Dervaes, Jack and William Demetree and Ernest Drosdick, knew that John Fountain was a convicted felon and knew that his involvement through loans would be impermissible under pari-mutuel and beverage licensing statutes. It was established that the $160,000 loan was not listed on the personal questionnaires filled out in July of 1980, by each of the aforementioned individuals despite the clearly expressed directive of such questionnaire forms, which states: List the total amount and sources of money you personally are investing in the proposed operation. Also, list any persons, corporations, partnerships, banks, and mortgage companies who have or will invest or lend money in the proposed operation. Immediately prior to the applicant's signature line on the personal questionnaire form is the following statement: I swear or affirm under penalty of perjury as provided for in Florida Statute 837.06 that the foregoing information is true to the best of my knowledge, and that no other person, persons, firm or corporation, except as indicated herein, has an interest in the alcoholic beverage license for which these statements are made. Immediately under the signature line is a boxed-in passage entitled "WARNING" with the word "warning" capitalized and underlined and the following: Read carefully, this instrument is a sworn document. False answers could result in criminal prosecution, subject to fine and/or imprisonment. The principal parties seek to excuse their failure to include the Fountain loan on their personal questionnaires by claiming that Drosdick, who is now deceased, was unaware of the $160,000 loan, that he filled out the questionnaires for them and that they merely signed them under oath and attested to their veracity without reading them. This testimony is not credible in view of the material, self-serving omission made on these questionnaires. Therefore, Respondent's agents, who are experienced businessmen, must be held responsible for their sworn statements. The principals have also sought to excuse their conduct on the basis that any matters which transpired between John Fountain and Paul Dervaes in connection with the loan were personal matters between Dervaes and Fountain and thus immaterial to the corporation. However, this theory avoids recognizing that personal questionnaires were submitted by four individuals and not by the corporate entity. It was established that each of the four individuals had knowledge of the $160,000 loan in question and thus were required to list such loan on their personal questionnaires. It was Fountain who conceived the idea of conversion, who supplied the capital necessary to effectuate the conversion, who without salary headed the physical conversion of the facility and who after the opening of the track authorized the expenditure of funds and the giving of certain gratuities at the track. Fountain was clearly and intimately involved with the overall success of the track. Indeed, the original loans in the amount of $152,000 and $169,499.82 from Fountain called for the payment of 10 percent interest and the $160,000 loan called for the payment of 15 percent interest, none of which has ever been paid. Such interest, as of September 30, 1982, had accrued in the amount of $15;173. Dervaes acknowledged that such interest was but a "paper transaction" in that the principal parties and Fountain all knew and agreed that Fountain would not be paid until such time as the track paid Dervaes the interest. Consequently, Fountain has held with the full knowledge of all the principal parties, an impermissible pecuniary interest in the licensed facility which continues to the present time. The Certificate of Incumbency and Declaration of Stock Ownership submitted as part of the beverage license application process was likewise incorrect. It reflected Jack and William Demetree as 50 percent each owners of Seminole Park and Fairgrounds, Inc. when, in fact, the separate corporate entity Seminole Greyhound Park, was the sole stockholder of this corporation. Such document was signed by William Demetree and certified as being true and correct by Paul Dervaes under oath. William Demetree and Paul Dervaes attempt to place the blame on Drosdick for improperly preparing the document. However, they signed this document and cannot avoid responsibility for their sworn statements.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's alcoholic beverage license no. 69-255. DONE and ENTERED this 23rd day of November, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1982. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Steven A. Werber, Esquire 2000 Independent Square Jacksonville, Florida 32202 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant to this proceeding, Respondent held alcoholic beverage license No. 26-1715. The licensed premises is located at 621 Davis Street, Jacksonville, Florida. Petitioner's undercover investigator and confidential informant (CI) entered the licensed premises on March 9, 1982. Thereafter, the CI purchased cannabis from a patron of the licensed facility (Count 3) Petitioner's investigator returned to the licensed premises with the CI on March 10, 1982, on which date both the CI and the investigator purchased cannabis from a patron. On this occasion the patron was identified as a seller by the bartender when she was asked who would sell cannabis. These transactions were carried out openly (Count 4) Petitioner's investigator was again in the licensed premises on March 11, 1982, and observed the open sale and use of cannabis. He identified the substance sold and smoked by its appearance and smell (Count 5) . In those instances where Petitioner's investigator and CI made purchases, the substances were tested by the Florida Department of Law Enforcement Crime Lab, and confirmed to be cannabis. See Petitioner's Exhibit One. On March 24, 1982, Petitioner's investigator visited the licensed premises where he again observed the open sale and use of cannabis by patrons as well as by an employee (barmaid) of Respondent. The investigator also purchased cannabis from patron during this visit (Count 8). On March 25, 1982, Petitioner's investigator was on the licensed premises and observed the open sale and use of cannabis. He made purchases of this substance from a patron around 2:00 pm. and again about 11:30 p.m. (Count 9). Petitioner's investigator was in the licensed premises on March 26, 1982. He again purchased cannabis from a patron (Count 10). Respondent was not observed on the premises during any of the above periods. It was not, therefore, demonstrated that he had actual knowledge of the illegal activity.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order suspending Respondent's alcoholic beverage license for a period of 45 days. DONE and ENTERED this 7th day of December, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1982.
The Issue Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about September 28, 1976, one Leouigildo Hernandez, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in his possession, with the intent to sell, a controlled substance; cocaine, and whether said cocaine was sold to one E. Santiago, for the price of $100 in U.S. currency, and whether said sale was consummated at the aforementioned beverage license premises, on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage license premises, a controlled substance, to wit; cocaine contrary to Section 893.13, F.S. thereby violating Section 561.29, F.S. Whether or not on or about October 30, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage license premises of Intimo Lounge, Inc. d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $100 U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, on the aforementioned beverage licensed premises, a controlled substance, to wit; cocaine, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. Whether or not on or about November 4 & 5, 1976, one Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales, an agent, servant or employee of the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did have in her possession, with the intent to sell, a controlled substance, to wit; cocaine, and whether or not said cocaine was sold to one E. Santiago, for the price of $2,200, U.S. currency, and whether or not said sale was consummated at the aforementioned beverage licensed premises, on the aforementioned date, contrary to Section 893.13, F.S., thereby violating Section 561.29, F.S. A count seven was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing. A count eight was originally charged against the Respondent, but that charge was dismissed at the commencement of the hearing. Whether or not on or about November 20, 1976, a bottle of non-tax paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered on the licensed premises, and whether or not said bottle bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid, contrary to Section 562.16, F.S., thereby violating Section 561.29, F.S. Whether or not on or about September 1, 1976, and continuing until on or about November 24, 1976, the beverage licensed premises of Intimo Lounge, Inc., d/b/a Intimo Lounge, did maintain a public nuisance, to wit; maintain a place where controlled substances were illegally sold, kept or used, contrary to Section 823.10, F.S., thereby violating Section 561.29, F.S. Whether or not investigation revealed that on or about November 20, 1976, the Respondent, its agent, servant, or employee, did remove, deposit, or conceal a beverage, to wit, one (1) 2,000 cc bottle of Ron Medeliin Rum, with the intent to defraud the state of tax, contrary to Section 562.32, F.S. and Section 562.30, F.S., thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to this complaint the Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, was the holder of a license no. 23-1901, held with the State of Florida, Division of Beverage, and that license was for the premises located at 1601 Collins Avenue Miami Beach, Florida. The management of the licensed premises makes arrangements to hire entertainment in the form of musicians. This arrangement is made through agreement with the band leader. One of these agreements was made with a band leader who had as his band member Leouigildo Hernandez. On September 28, 1976, Officer E. Santiago, of the Miami Beach, Florida, Police Department entered the licensed premises and while in the licensed premises entered into discussion with Hernandez. Hernandez left the bar proper and came back with an amount of a substance known as cocaine. Santiago paid Hernandez $100 for the quantity of cocaine and the sale was consummated in the licensed premises. On October 30, 1976, Officer Santiago returned to the licensed premises. Santiago had been in the licensed premises many times prior to that occasion. Among the persons he had seen in the bar was Thelma Bilbao, a/k/a Thelma Clemencia Cruz, a/k/a Thelma Morales. Morales was the girlfriend of Anthony Bilbao, one of the principals in the ownership of the licensed premises. Morales had also served Santiago drinks in the bar on more than 50 occasions. On the evening in question, October 30, 1976, discussion was entered into between Santiago and Morales about the purchase of a substance known as cocaine. Morales produced a quantity of the cocaine and reached across the bar that she was standing behind and handed the quantity of the substance cocaine to Santiago, who was in the area where customers were served at the bar. Santiago paid her $100 for the cocaine. In the late hours of November 4 and early hours of November 5, 1976, Santiago again entered the licensed premises, his purpose for going to the licensed premises was to purchase a large quantity of cocaine from Morales. This arrangement had been entered into based upon the sample of cocaine that had been provided him on October 30, 1976. Morales left the licensed premises and returned 3 to 5 minutes later with a quantity of cocaine, for which Santiago paid her $2,200. On one of the above occasions of a purchase of cocaine from Morales, while in the licensed premises, Morales had conferred with Anthony Bilbao. In the course of that conference, Bilbao told Morales to be careful to whom she sold because "you don't know him", meaning Santiago. In the course of an investigation in the license premises on November 28, 1976, a bottle of non-tax-paid alcoholic beverage, labeled Ron Medeliin Rum, was discovered in the licensed premises, which bore no federal strip stamp or any other indication that the lawfully levied federal and/or state taxes had been paid. The size of the bottle was 2,000 cc.
Recommendation Based upon the violations as established in the hearing on the notice to show cause, it is recommended that the license no. 23-1901 held by Respondent, Intimo Lounge, Inc., d/b/a Intimo Lounge, be revoked. DONE AND ENTERED this 24th day of February, 1977, in Tallahassee ,Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Michael B. Solomon, Esquire Division of Beverage Theodore M. Trushin, Law Office The Johns Building 420 Lincoln Road, Number 600 725 Bronough Street Miami Beach, Florida 33139 Tallahassee, Florida 32304 Nathaniel Barone, Esquire 777 N.E. 79th Street Miami, Florida 33138
Findings Of Fact 10. The Division hereby adopts and incorporates by reference the Finding of Fact in foto, as set forth in the Recommended Order.
Conclusions The Director, Division of Alcoholic Beverages and Tobacco, Department of Business and Professional Regulation (hereinafter’Division’), after consideration of the complete record of this case on file with the Division, hereby enters this Final Order.
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.
The Issue By notice to show cause, petitioner charged that respondent, individually or through the acts of its agent/employee, violated the provisions of Section 562.11(1)(a), Florida Statutes, by selling an alcoholic beverage on its licensed premises to a person under the age of 21. Respondent requested a formal hearing on the charges, and the matter was referred to the Division of Administrative Hearings. At the hearing, petitioner called three witnesses and offered three exhibits which were admitted into evidence. Respondent testified on his own behalf and offered no exhibits. A transcript of the hearing was not ordered, and the parties were granted leave until August 21, 1989 to file proposed findings of fact. Petitioner timely filed proposed findings of fact and conclusions of law. A ruling on each of petitioner's proposed findings of fact has been made and is reflected in the Appendix to this recommended order. On August 24, 1989, respondent filed a letter which is here deemed to be his proposed findings of fact; however, his filing was untimely.
Findings Of Fact At all times material hereto, respondent, Coast Line Petroleum, Inc. d/b/a Toms Texaco, held an alcoholic beverage license number 60-04813, series 2- APS for the premises known as Toms Texaco in Lantana, Florida at 401 N. Dixie Highway. Mr. Thomas Przybylski is the President of respondent and appeared on behalf of the licensee. On or around April 4, 1989, petitioner's investigator conducted an investigation of respondent's licensed premises to determine if respondent was selling alcoholic beverages to underaged persons. The investigation was prompted by complaints received by petitioner from the Lantana Police Department. Petitioner's practice in making such investigations was to employ an underaged person and send the underaged person onto the licensed premises to purchase an alcoholic beverage. The underaged person was instructed not to carry any form of identification and to respond truthfully if asked his age or for identification. Julio A. More was employed by petitioner as an Investigative Aide. On April 4, 1989, following petitioner's instructions, Mr. More, who was eighteen at the time and appeared to be no older than his age, entered the licensed premises at issue. It was a busy afternoon at Toms Texaco. Mr. More picked a beer out of the inventory and attempted to purchase it from Mr. Przybylski, who was working that afternoon. Mr. Przybylski asked Mr. More if he had any identification to which Mr. More replied that he had none. Mr. Przybylski then sold Mr. More the beer. Petitioner's investigator witnessed the sale and confiscated the tendered beer. Mr. Przybylski as an employee and officer of respondent sold an alcoholic beverage to an individual who was eighteen at the time of the sale. Accordingly, respondent is guilty of selling an alcoholic beverage to a person under 21 years of age. The proof demonstrated that petitioner has promulgated disciplinary guidelines for offenses similar to the one at issue; and that the appropriate penalty in this case would be the imposition of a fine of $1,000 and twenty-day suspension of the license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on respondent an administrative fine of $1,000 and suspending respondent's license for a period of twenty days. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of September 1989. JANE C. HAYMAN 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 7th day of September 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO.89-3006 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraphs 3 and 4. Addressed in paragraph 4. Irrelevant. Adopted in paragraph 5. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Thomas John Przybylski, Jr. Coast Line Petroleum, Inc. 10670 Cypress Bend Drive Boca Raton, Florida 33498 Lt. Debbie Pfitzenmaier Elisha Newton Dimick Building 111 Georgia Avenue, Room 207 West Palm Beach, Florida 33401 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey Director The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000
