The Issue This case concerns the issue of whether the Respondent's application for a quota beverage license should be granted. At the formal hearing, the Respondent called as witnesses Mr. Berry Wiggins and Mr. Alfred S. Bridges, president and sole shareholder of the Respondent. Petitioner called as witnesses Sgt. Norman Stephens, Beverage Officer John T. McMullen, Alfred S. Bridges and Barry Schoenfeld. The parties submitted proposed findings of fact and conclusions for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not consistent with the findings and conclusions in this order, they were considered by the Hearing Officer and rejected as being not supported by the evidence or unnecessary to a resolution of this cause.
Findings Of Fact The Respondent holds beverage license number 62-248-4-COP SR. This license is issued to the licensed premises known as the Blue Fountain Restaurant and Lounge located at 1045 North Greenwood Avenue, Clearwater, Florida. The beverage license held by Respondent is a special restaurant license with specific requirements relating generally to the sale of food, seating capacity, and hours of operation. These requirements must be met during daily operation in order for the Respondent to retain its beverage license. On January 29, 1979, Respondent by and through its president and sole shareholder, Alfred S. Bridges, applied to the Division of Alcoholic Beverages and Tobacco for a consumption on premises quota license for the Blue Fountain Restaurant and Lounge. Quota licenses do not have the special requirements applicable to special restaurant licenses and are limited in number by the population in each county where issued. On March 22, 1979, the Respondent's application was denied on the basis that no quota beverage licenses were available in Pinellas County. Respondent was informed by the Division of Alcoholic Beverages and Tobacco that additional licenses would probably be available in 1980 following the 1980 census. The Respondent did not dispute the fact that there were in fact no quota licenses available at the time that his application was submitted and considered, and the denial of Respondent's application on that ground by the Division of Alcoholic Beverages and Tobacco was proper. Following the 1980 census, the legislative program for the selection of persons to receive quota beverage licenses by lottery became effective. The Respondent twice applied for such a license but was not drawn in the lottery on either occasion, and therefore was not entitled to a quota license of those applications. The licensed premises is located in an area which is predominantly black and poor. The individuals residing in this area do not frequently utilize the restaurant facilities at the licensed premises and generally cannot afford to order full course meals. There are numerous fast-food restaurants in the same area as the licensed premises and this coupled with the limited financial resources of the patrons in the area makes it financially difficult for Respondent to operate under a special restaurant license. The requirement that the Respondent be able to serve at any given time a certain number of full course meals and the cost of operating a kitchen and food service also places a substantial financial burden on the Respondent. There is no statutory authority or agency rule which permits the Division of Alcoholic Beverages and Tobacco to grant an application for a quota beverage license based on hardship. The Division of Alcoholic Beverages and Tobacco has never issued a quota beverage license based on hardship and has no policy of considering hardship as a criteria for obtaining such a license.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Division of Alcoholic Beverages and Tobacco issue a Final Order denying Respondent's application for a quota beverage license. DONE and ENTERED this 23rd day of November, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1983. COPIES FURNISHED: Daniel J. Bosanko, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Alfred S. Bridges, President Willow Run, Inc. d/b/a Blue Fountain Restaurant and Lounge 1045 North Greenwood Avenue Clearwater, Florida 33515 Harold F.X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue The Division of Alcoholic Beverages and Tobacco seeks by this action to suspend or revoke or otherwise discipline License No. 56-00475 belonging to the licensee Clayton E. Adams. The basis for such action is the allegation that Mr. Adams violated Section 893.13, Florida Statutes, by delivering three pounds of marijuana to an individual named Jackie Long for which Mr. Adams received $800. The Petitioner called no witnesses but relied upon the stipulation entered into by the Respondent as to the facts alleged in the count set forth in the Notice to Show Cause. Mr. Clayton E. Adams testified on behalf of the Respondent, Blueberry Grocery and Curb Market. The Respondent offered into evidence nine exhibits, all of which were admitted without objection.
Findings Of Fact Mr. Clayton E. Adams, doing business as Blueberry Grocery and Curb Market, is the licensee of Beverage License No. 56-00475, license series 1-APS. The Petitioner and Respondent stipulated to the facts alleged in the one and only count of the Notice to Show Cause and based upon said stipulation, I find as follows: On or about August 10, 1981, Clayton E. Adams, did violate Section 893.13, Florida Statutes, to wit: Clayton E. Adams did deliver three pounds of marijuana to Jackie Long and did receive $800 for same, in violation of Section 893.13, Florida Statutes within Section 561.29, Florida Statutes. The licensed premises is located on Highway 85 North in Crestview, Florida, and is a grocery store. There is no on-premises consumption of alcohol. The transfer and sale of the marijuana by Mr. Adams took place at 10:00 o'clock at night. This was some two hours after the 8:00 o'clock closing time of the Blueberry Grocery and Curb Market. The only connection between this transaction and the licensed premises was the fact that the transfer took place in the parking lot of the Blueberry Grocery and Curb Market. The Blueberry Grocery and Curb Market is operated primarily by the wife of Clayton E. Adams. Mr. Adams drives a truck full-time and works at the store only on weekends. Prior to his arrest and charge for the sale of marijuana, Mr. Adams had no prior record and has no other evidence of violation in connection with his beverage license. With regard to the drug charge, the Circuit Court of Okaloosa County withheld adjudication of guilt, placed Mr. Adams on probation for five years, and imposed a $1,000 fine. As of the date of the hearing in this matter, Mr. Adams had been on probation for approximately one year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Beverage License No. 56-00475 be revoked but that the revocation be suspended pursuant to Section 561.29(5), Florida Statutes, for a period of four years. It is further recommended that such suspension of the revocation be conditioned upon there being no further violations of the laws of the State of Florida or the rules and regulations of the Division of Alcoholic Beverages and Tobacco. In the event that no such violation has occurred during that four-year period, it is further recommended that the revocation be withdrawn, at the end of the suspension period. DONE and ORDERED this 20th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1983. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Clayton E. Adams Blueberry Grocery and Curb Market Highway 85 North Crestview, Florida Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Harold F.X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 75 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Petitioners should remain eligible for entitlement to a new quota alcoholic beverage license in St. Lucie County, Florida under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On December 4, 1989 the Petitioners filed an application for inclusion in the drawing for a new quota alcoholic beverage license for St. Lucie County, Florida in accordance with Section 561.19(2), Florida Statutes. The application to participate in the drawing was properly and timely filed on DBR Form 747L, entitled, "Preliminary Application for New Quota Alcoholic Beverage License". Paragraph 4 of the General Instructions of DBR Form 747L, advised the applicants as follows: This is Part One of a two (2) part applica- tion. The Division will only accept final application (Part Two) and award licenses to those persons listed on the application, provided such persons are qualified under the beverage laws and are successful in the drawing. On March 29, 1990, the Respondent held a drawing in Tallahassee, Florida for 163 new quota liquor licenses. Petitioners were selected as a preliminary applicant for a new quota license in St. Lucie County. On April 6, 1990, the Petitioners were mailed a certified letter entitled "Notice of Selection" advising the Petitioners of their selection as preliminary applicants for a new quota liquor license in St. Lucie County. Petitioners received this letter on April 9, 1990. This letter clearly advises the Petitioners: that an application for either a "grant" or an "issuance" of a license must be filed; of the difference between "grant" and "issuance"; that a complete application for a "grant" or "issuance" must be filed within 45 days of the date of the letter which is calculated to be May 21 ,1990; that failure to timely file such applica- tion shall be deemed a waiver of the Peti- tioners' right to file for a new quota license and; of the immediacy of contacting the District 10 office in Ft. Pierce, Florida to obtain instructions and, if necessary, answer questions. On or about April 17, 1990 John Clark, Petitioners' employee went to the District 10 office in Fort Pierce and discussed with Irene Wahlenmeyer the suitability of a location of a former lounge. There was no evidence that Clark discussed the May 21, 1990 deadline for applying for the new quota liquor license with Wahlenmeyer at this time. On April 18, 1990 Petitioner, Owen Young contacted the District 10 office by phone and talked to Wahlenmeyer concerning the procedural aspects of applying for a new quota liquor license including the procedural aspects of applying for a "grant" of a license as opposed to applying for the "issuance" of a license. There is insufficient evidence to show that Wahlenmeyer suggested or implied that the Petitioners should apply for the "issuance" of a license as opposed to applying for a "grant" of a license. During the telephone conversation with Wahlenmeyer on April 28, 1990, Petitioner, Owen Young discussed with Wahlenmeyer the suitability of a location of a former lounge known as "Fanny's" and, the potential lease of this property. This was the same location discussed by Clark on April 17, 1990. There is no evidence that either of the Petitioners had any further contact with any of Respondent's employees subsequent to April 18, 1990 and prior to May 21, 1990, the final deadline to submit an application for a new quota liquor license. Although Petitioners' employee Clark visited the District 10 office sometime between May 10, 1990 and June 5, 1990, there is insufficient evidence to show that this visit was prior to May 21, 1990. Subsequent to April 18, 1990 Owen Young began work on the application process by publishing a fictitious name, applying for an occupational license and obtaining a distance waiver from the zoning board as to the Fanny's location. Additionally, Petitioners entered into a lease for the Fanny's location, expended considerable sums of money on remodeling and obligated themselves to a monthly expenditure of approximately $2,500.00 per month. There is no evidence that either of the Petitioners or Clark, on behalf of Petitioners, contacted the District 10 office or any of Respondent's other offices or any of Respondent's employees subsequent to April 6, 1990, the date of the notice of selection letter and prior to June 5, 1990, the date of the Notice of Intent to Disapprove letter inquiring as to the significance of the deadline date of May 21, 1990 or requesting an extension or waiver of the deadline date. Furthermore, there is no evidence that Wahlenmeyer or any of Respondent's other employees advised, suggested or implied that the May 21, 1990 deadline date could be or would be extended or waived. On June 5, 1990 a letter entitled, Notice of Intent to Disapprove was mailed to the Petitioners advising them that: (a) their application for a new quota liquor license had not been filed within the prescribed time period of 45 days from April 6, 1990 the date the Notice of Selection had been mailed; (b) it was Respondent's intent to deny the Petitioners' entitlement to apply for a new quota liquor license in St. Lucie County; (c) they were given until June 18, 1990 to respond as to why this entitlement should not be disapproved and; (d) this time period to respond should not be considered as an extension of the time originally granted to file the application. On June 8, 1990 Petitioners filed an Application for the Grant of a New Quota Liquor License with the District 10 office in Fort Pierce. This application was forwarded to Respondent's central office on an "Application Transmittal Form" which indicated a recommendation of approval by the District 10 office Investigator, Irene Wahlenmeyer on June 8, 1990 and her supervisor, Bob Young on January 11, 1990. Bob Young later withdrew his recommendation of approval. There is insufficient evidence to show why Young withdrew his initial recommendation of approval. On June 25, 1990, a letter entitled, "Notice of Disapproval" was sent to Petitioners from Respondent advising the Petitioners that their entitlement to apply for a new quota liquor license had been disapproved. The reasons stated for the disapproval was the failure of the Petitioners to timely file a complete application within the 45 days required by Section 561.19, Florida Statutes. On or about July 5, 1990 the Petitioner, Owen Young contacted Schoenfeld via telephone and followed up with a letter on July 6, 1990 concerning the "Notice of Intent to Disapprove" and the "grant" of a license application filed on June 8, 1990. Schoenfeld responded with an investigation of the matter with the assistance of Captain D. L. Gray of the West Palm Beach district office. Gray's investigation concluded with a memorandum dated July 16, 1990 wherein Gray advised Schoenfeld that while the Fort Pierce office should not have accepted the application for grant of license from Petitioners or recommended approval, the notice of disapproval of June 25, 1990 was justified. Respondent did not consider the application for grant of license filed on June 8, 1990 as being a completed application and as of December 6, 1990 the Petitioners have not filed any other application for a new quota alcoholic beverage license. Respondent has extended the deadline date or re-initiated the application process where it was shown that the Respondent had incorrectly advised an applicant or had lost an application resulting in the applicant's untimely filing of an application. The purpose of the "Notice of Intent To Disapprove" is to allow the applicant the opportunity to point out to the Respondent its error. There is insufficient evidence to show that Petitioners' failure to timely file their application was due to any incorrect advise given them by the Respondent notwithstanding Petitioners' contention that they were advised to apply for an issuance of a license as opposed to a grant of a license. In any event, the Petitioners neither requested nor were they advised by the Respondent that the deadline date could or would be waived or extended.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order finding that the Petitioners have waived their entitlement to apply for a new quota liquor license. RECOMMENDED this 15th day of January, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 15th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4470 The following constitutes my specific rulings pursuant to Sections 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. - 2. Adopted in Finding of Fact 1 as modified. Not material or relevant. Adopted in Finding of Fact 3 except the date was March 29, 1990 instead of April 6, 1990. - 6. Adopted in Finding of Fact 4. - 7. Adopted in Finding of Fact 5 but clarified. 8. - 9. Adopted in Finding of Fact 6 but clarified. 10. - 11. Adopted in Finding of Fact 7 but clarified. Not material or relevant. Adopted in Finding of Fact 9. - 19. Restatement of testimony and not of Finding of Fact but see Finding of Fact 14. 20. - 21. Not material or relevant. Third sentence adopted in Finding of Fact 10 otherwise not material or relevant. Adopted in Finding of Fact 10. Not material or relevant. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12 as clarified otherwise not material or relevant. Specific Rulings on Proposed Findings of Facts Submitted by Respondent 1. 7. - 6. Adopted in Findings of Fact 1, 3, 4, 6, 9, and 10, respectively. Not material or relevant. 8. - 10. Adopted in Findings of Facts 11, 12, and 13, respectively. COPIES FURNISHED: Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Joseph Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Eric S. Haug, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 James P. McCollum, Esquire 129 South Commerce Avenue Sebring, FL 33870
The Issue Whether the Application for Alcoholic Beverage License dated April 14, 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 April 14, 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." 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 15-1924, current series 3 PS. The holder of the license was Thomas Tripp. 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. In a letter dated April 22, 1988, the Director of the Division requested the following additional information from Mr. Allen: Affidavit of seller must be signed by Thomas Tripp and notarized. Documentation as to the source of funds invested must accompany this application. The transfer fee on quota license is assessed on the average annual value of gross sales of alcoholic beverages for the three (3) years immediately proceeding transfer and is levied at the rate of four (4) mills, and in no event exceeds $5,000. The parties may elect to pay the $5,000 transfer fee or submit documents (usually sales tax records), which will establish gross sales in order to compute the transfer fee. By letter dated May 2, 1988, Mr. Allen responded as follows to the Division's request for information: Mr. Tripp has signed the Independent Contractor Agreement which is the affidavit of seller. Source of funds comes from Mr. Tripp as per the Independent Contractor Agreement. The sales tax receipts will be submitted upon approval pending payment of transfer fee. The Division notified Mr. Allen that it intended to deny the Application in a letter dated May 9, 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
The Issue The issue to be determined is whether Petitioner’s request to renew a lien against alcoholic beverage license number 62- 08383 on or about July 8, 2011, should be approved or denied.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent is the state agency charged with the licensing, regulation, and enforcement of Florida’s alcoholic beverage laws pursuant to section 20.165(2)(b) and chapters 561- 568, Florida Statutes, including recordation of liens against alcoholic beverage licenses and provision of notice to lienholders pursuant to section 561.65. Petitioner is the holder of a recorded lien against alcoholic beverage license number 62-08383, a 4COP spirituous alcoholic beverage license, commonly referred to as a quota license, which was issued pursuant to sections 561.20(1) and 565.02(1)(a)-(f) for use in Pinellas County. Liens and Security Interests in Alcoholic Beverage Licenses Section 561.65 governs mortgages, liens, and security interests against spirituous alcoholic beverage licenses. DABT has a lien section within its Bureau of Licensing that is responsible for the oversight of lien recordings and lien searches. To perfect a lien or security interest in a spirituous alcoholic beverage license that may be enforceable against the license, the entity holding the security interest or lien must record it with DABT within 90 days of the date of creation of the lien or security interest, using forms authorized by DABT. The forms adopted by DABT require the names of the parties and the terms of the obligation being recorded. § 561.65(4), Fla. Stat. Form DBPR ABT-6022, Application for Mortgagee’s Interest in Spirituous Alcoholic Beverage License, is used to record a new lien, a lien assignment or assumption, or a lien renewal or extension. The form is adopted by rule. Fla. Admin. Code R. 61A-5.0012. Upon receipt of a request to record a lien or the renewal of an existing lien, DABT will review the provided documentation and, if the documentation is in order on approved forms and accompanied by the security agreement and statutorily- required payment, will record the lien or lien renewal. If there is a deficiency noted during review of the lien documentation submitted, DABT will issue a 14-day deficiency notice to the requesting entity to provide any missing information. If timely corrected, DABT will record the lien or lien renewal. Section 561.65(4) provides that any lien or security interest filed with DABT on or after July 1, 1995, expires five years after recordation by DABT unless renewed by the lienholder within six months prior to its expiration date. Statutory Notice Requirements to Lienholders Recording a lien not only makes it enforceable, but provides assurance to the lienholder that it will receive notice of pending actions by DABT against the license that may compromise the lien’s vitality. Section 561.65 also sets forth requirements for DABT to provide notice to lienholders of both pending actions against encumbered licenses and any suspension or revocation of a license subject to a lien. Specifically, section 561.65(3) provides that “such lienholder shall be notified in writing of the filing of an order to show cause as to why the license should not be suspended or revoked; and also the lienholder shall be furnished a copy of any order of suspension or revocation.” (Emphasis added). In other words, two separate notices are required: one when the agency institutes proceedings against the licensee and a second if the agency action against the licensee results in a suspension or revocation of the license. Respondent does not assert and no evidence was presented to demonstrate that Petitioner had knowledge of or participated in the cause for revocation of the license at issue in this proceeding, or that Petitioner would not otherwise be entitled to notice of the revocation proceeding. The holder of a recorded lien is entitled to notice because the lienholder has the right to enforce the lien against the licensee within 180 days after the entry of any order of revocation or suspension of the license. Section 561.65(3) specifies that “the 180 days within which to file for enforcement of the lien by the lienholder shall commence running from the date of the mailing of the copy of the order of revocation or suspension.” Thus, the 180-day period runs from when notice is sent to the lienholder, not from the entry of the final order of suspension or revocation. Once notice is provided to the lienholder, any enforcement of the lien is through foreclosure proceedings in circuit court. The process for foreclosure proceedings is outlined in section 561.65(5). Most importantly, both section 561.19(2) and section 561.65(1) provide that no revoked quota beverage license encumbered by a lien or security interest perfected in accordance with section 561.65 shall be issued until the 180-day period (from mailing of the suspension or revocation order) has elapsed or until such enforcement proceeding is final. Re-issuance Through Double Random Drawings Quota licenses may become available three ways: 1) when a dry county goes wet (i.e., a county that previously prohibited the sale of alcohol decides to allow it), three initial quota licenses are issued for the county; 2) when there are population increases in a county, an additional quota license is issued for every population increase of 7,500; and 3) when a quota license in a county has been revoked. When any of those instances occur, pursuant to the directive in section 561.19(2), quota licenses are issued through the use of a double random public drawing. While a revoked quota license may be reissued in a double random quota drawing, if a revoked quota license is encumbered by a perfected and recorded lien or security interest, as discussed previously, it may not be reissued until the 180-day period has elapsed or until enforcement/foreclosure proceedings are final. Damon Larry is currently the assistant bureau chief of licensing, and oversees the annual quota drawing. Each year, he runs a report of all revoked quota licenses and, if the revocation is final, determines whether the 180-day period has elapsed. Before a revoked quota license is placed in the double random drawing, there is communication between staff in different sections within the Department to determine if a license is eligible for inclusion in the quota drawing. The communications involve the quota drawing section, the licensing section, the administrative case unit, the Office of the General Counsel, and the lien section. During this process, DABT staff will determine whether there is a lien attached to the license and, if so, whether there was notice to the lienholder, and whether the 180 days has elapsed or foreclosure proceedings no longer remain pending. If all of these conditions have been met, the revoked license is placed in the quota drawing for reissuance under a new license number. The revoked license number is then deleted from the Department’s database. Petitioner’s Lien Against Alcoholic Beverage License No. 62-08383 Turning to the facts of this case, Daniel A. King, as debtor, executed and delivered a Demand Promissory Note in favor of Rebco on or about April 18, 1997, in the principal amount of $61,000, and simultaneously executed a security agreement in favor of Rebco, as the secured party, pledging license number 62-08383 (the License) as collateral for repayment of the sums due and owing under the Promissory Note. Rebco submitted the promissory note and security agreement to DABT for initial recordation as a lien against the License on or about May 1, 1997, within 90 days of the date of the creation of the lien, on forms approved by the Division. The forms clearly identified the parties and the obligation. DABT recorded the lien against the License effective May 8, 1997. If not timely renewed, the lien would expire on May 8, 2002. Rebco submitted a request to renew its existing lien against the License for recordation on or about November 7, 2001, within six months of expiration of the lien, on forms approved by the Division. The request for renewal was accompanied by the promissory note and security agreement, and the forms clearly identified the parties and the obligation. DABT recorded the lien renewal against the License effective November 7, 2001. If not timely renewed, the lien would expire on November 7, 2006. Rebco submitted a second request to renew its existing lien against the License for recordation on or about July 26, 2006, within six months of expiration of the lien, on forms approved by the Division. The request for renewal was accompanied by the promissory note and security agreement and the forms clearly identified the parties and the obligation. DABT recorded the lien renewal against the License effective August 1, 2006. If not timely renewed, the lien would expire on August 1, 2011. The License Revocation Proceedings On or about November 16, 2006, at a time when the lien was recorded in the records of DABT, DABT filed administrative charges against Daniel J. King, holder of the License, in Case number 2006-049240, alleging that the licensee failed to operate the License in accordance with section 561.29(1)(f). DABT was unable to achieve personal service on Mr. King, so it published notice of the administrative action in the St. Petersburg Times on May 2, 9, 16, and 23, 2007. The published notice did not identify Petitioner, and no evidence was presented to indicate that DABT sent a copy of the notice to Rebco. Rebco clearly had a recorded lien against the License when the disciplinary action was filed against the License. DABT did not notify Petitioner of the pending action. On or about June 22, 2007, after receiving no written defense in the disciplinary proceeding, DABT issued a Final Order revoking the License effective July 31, 2007. The Final Order of Revocation was not served on Rebco, the owner of the security interest in the License. Petitioner had a recorded lien against the License on file with DABT both when proceedings were instituted against the License and on the date of the entry of the Final Order of Revocation. Stephanie Coxwell works in the administrative case unit of DABT and has done so for at least the last 14 years. The administrative case unit is responsible for determining whether an alcoholic beverage license that is pending revocation or suspension is encumbered by a lien and for notifying any lienholder of the revocation or suspension of an encumbered license. DABT’s practice was to mail any lienholder notice of the license suspension or revocation, along with a copy of the final order, soon after entry of the final order. It is this mailing of the notice and final order that commences the 180 days referenced in section 561.65. For at least the last 14 years, DABT has used a form “notice to lienholder” to notify lienholders of the revocation or suspension of an alcoholic beverage license, accompanied by a copy of the final order revoking or suspending the license. The notification form is a public record maintained by DABT. It is this notification, and not the publication of the pending action, that provides notice to the lienholder. Internal correspondence from Ms. Coxwell within the licensure file for the License indicates that in December 2006, she requested a lien search with respect to the License. Ms. Coxwell was advised by return e-mail that Rebco had a recorded lien against the license. On or about March 21, 2007, Ms. Coxwell requested research for any bankruptcy proceedings affecting the License. She was again informed by intra-agency e-mail that Rebco had a recorded lien against the License. Ms. Coxwell replied by e-mail that she was aware that there was a lien, but that they would notify the lienholder of the administrative action “in the usual way.” However, Ms. Coxwell’s March 27 e-mail was sent three months before the final order revoking the license, not simultaneous to the Order. There is no record that notification was sent to Rebco, either at the time of the administrative action, or after issuance of the final order. Beverly Peebles works in Rebco’s corporate office located at 701 Tennessee River Drive, Muscle Shoals, Alabama 35661, and has done so since 1990. She is responsible for receiving, retaining, and disbursing any mail received by Rebco. Ms. Peebles testified regarding the process used to copy, scan into the company’s electronic database, and distribute any mail received by Rebco. Rebco did not receive any notice concerning the administrative action or the revocation of the License until Rebco received the letter denying the recordation of its lien renewal against the license in 2011. Rebco’s address was at all times on file with the DABT since the inception of the lien against the license in 1997. It is found that the DABT did not notify Rebco that there was an administrative action filed against the License, and did not notify Rebco of the Final Order of Revocation against the License. The licensure file contains all other expected documents from the first recordation of the lien in 1997 to the present. It does not include a copy of notice to Rebco of either the pending action or the Final Order of revocation. Moreover, both a letter dated August 19, 2011, to counsel for Rebco, as well as an e-mail dated March 21, 2007, from Ms. Coxwell, contain handwritten notes regarding the failure to send proper notification. The notes, which are clearly hearsay, are part of public records maintained in the normal course of business, and corroborate Ms. Peebles’ testimony that no notification was received. They also corroborate evidence of the absence of any record of notification to Rebco in DABT’s records of regularly-conducted activity. The August 19, 2011, letter contains a handwritten note at the top stating, “$61K lien no lien ltr sent,” and the e-mail dated March 21, 2007, referenced in paragraph 32, contains the following note: “are we the only group/people who check for current liens recorded before deleting the license? It was deleted on 5/4/2011. Lien was still recorded at that time.”2/ Respondent has presented no credible evidence to indicate that the notice was somehow sent despite the lack of any documentation to that effect contained in the DABT’s records. While the handwritten notes standing alone do not establish that no notice was sent, they do indicate that a question was raised internally regarding whether adequate notice was provided. Despite the failure to notify Rebco of the revocation of the License, the License was placed in the 2010 double random drawing held on March 10, 2011, at a time when a valid lien against the License was duly recorded. Only one license for Pinellas County was included in the drawing for that year, and no licenses for Pinellas County have been issued in a double random quota drawing since then. Shortly after the random drawing, the license number assigned to the License was removed from the Department’s system and a new number assigned to the license issued as a result of the drawing. While there is no direct testimony on the issue, it can be inferred that the purchaser of the new license received the license with no notice that there was any outstanding lien on the right to engage in the sale of alcoholic beverages in Pinellas County under the new license. While it is DABT’s practice to delete a revoked license number from its database, no evidence or statutory reference was presented to support the premise that there is a legal impediment to renewing an existing lien for a revoked license when no notice of the revocation was provided. Given the Department’s failure to notify Rebco of the revocation of the License, the 180-day period identified in section 560.65 never began to run. On or about July 6, 2011, Rebco timely submitted a third request to DABT to renew its existing lien against the License for recordation, within six months of expiration of the lien, on forms approved by the Division, which request was accompanied by the promissory note and security agreement. DABT notified Rebco by letter dated July 19, 2011, that it was unable to record the lien renewal because it was not submitted for recordation within 90 days of its creation. The July 19, 2011, notice of denial was issued based upon a review of the lien renewal request submitted to DABT, because the executed ABT6022 lien-recording form submitted with Rebco’s third renewal request mistakenly identified the effective date of the lien renewal as April 18, 1997, the date of the creation of the original lien. On or about July 25, 2011, Rebco submitted an amended form ABT6022 correcting the effective date for renewal of the lien as August 1, 2011. On August 3, 2011, DABT notified Rebco that it was unable to record the renewal of the lien against the License because “the alcoholic beverage license being pledged as collateral was revoked by the Division on July 31, 2007,” following service of a Notice of Action through publication in the St. Petersburg Times on May 2, 9, 16, and 23, 2007. No action taken by Rebco compromised the vitality of its recorded lien against the License. To the contrary, Rebco faithfully adhered to the recording requirements outlined by statute to record and renew its lien. DABT, however, failed to take the action required by section 561.65 to provide notice to Rebco of the pending action and subsequent revocation of the License. As a result, the 180- day period required by section 561.65 did not run before the License was placed in the quota drawing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order approving the renewal of Rebco’s lien in the License at issue in this case. DONE AND ENTERED this 17th day of July, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2015.
The Issue The issue presented is whether Respondent failed to maintain separate records of purchases and gross sales of all alcoholic and non-alcoholic beverages and food in violation of Section 561.20, Florida Statutes, and Florida Administrative Code Rule 61A-3.0141, and if so, what penalty, if any, is appropriate. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect of the date of this Recommended Order).
Findings Of Fact Respondent holds license number 69-02639, series 4COP SRX. An SRX license authorizes Respondent to sell alcoholic beverages on the premises of Jon's Bar & Grill, located at 2485 N. Highway 17-92, Lake Monroe, Florida ("the licensed premises"). Persons issued "SRX" licenses must meet certain statutory requirements to ensure that they are operating bona fide restaurants. Among other requirements, Respondent must maintain separate records of all purchases and gross sales of all alcoholic and non-alcoholic beverages and food. Respondent's license application specifically informed Respondent that he must meet the specific requirements of this type of license. On March 17, 1997, Petitioner's Special Agent Richard Hurlburt met with Respondent for the purpose of conducting an SRX inspection to determine Respondent's compliance with SRX license requirements. An SRX inspection includes an audit of the licensee's records to determine the percentage of gross revenue derived from the sale of food and non-alcoholic beverages. Respondent was unable to produce the records he is statutorily required to maintain. Agent Hurlburt issued a notice to produce records relating to the operation of the restaurant. On August 12, 1997, Petitioner issued a notice of administrative complaint against Respondent for failure to maintain separate records of all purchases and gross sales for non-alcoholic and alcoholic beverages and food in violation of Section 561.20. Respondent has not produced the records he is statutorily required to maintain.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a $1,000 civil penalty against Respondent and revoking alcoholic beverage license no. 69-02639, series 4COP SRX, without prejudice to obtain any other type license, but with prejudice to obtain another SRX special license for 5 years from date of the Final Order. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon county, Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 George Lewis, Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe street Tallahassee, Florida 32399 Jon Gustafson, pro se 956 Lake Ashby Road New Smyrna, Florida 32069
Findings Of Fact On January 10, 1981, Beverage Officer P. M. Roberts entered the licensed premises of Perrine Pub to Investigate alleged drug violations. He engaged In a conversation with the bartender, Angela Maria Dickens, an employee of the licensee. Dickens subsequently offered to sell Roberts methaqualone (quaaludes). Roberts accepted and ordered the tablets for which he paid Dickens 25 dollars. Dickens obtained the tablets from a storage point behind the bar and delivered them openly to Roberts by placing them on the bar. On January 14, 1981, Beverage Officer Roberts returned to the licensed premises of Perrine Pub accompanied by Beverage Officer R. Jones. After engaging in a conversation concerning drugs, the officers each purchased methaqualone (quaaludes) from Dickens. The tablets were delivered openly from behind the bar, with Roberts purchasing ten tablets and Jones purchasing five. Roberts also purchased one gram of cocaine from Dickens on January 14, 1981. A third person, later identified as Lawrence Donovan, was involved in this transaction. Dickens gave Donovan four 20 dollar bills after receiving four 20 dollar bills from Roberts. Donovan then left the bar, subsequently returning with a package he gave to Dickens. She then delivered the gram of cocaine to Roberts. On January 16, 1981, Beverage Officers Roberts end Jones returned to the licensed premises of Perrine Pub. The officers attempted to purchase drugs from Dickens, who was at the door collecting cover charges. Dickens referred the officers to Marta Horstein who was on duty as the bartender. Jones purchased four methaqualone tablets (quaaludes) from Horstein for ten dollars. Jones gave Dickens one of these methaqualone tablets, which she consumed on the premises. On January 29, 1981, Beverage Officer O. Sams and P. Roberts arrived at the licensed premises to serve an Emergency Order of Suspension. They arrested Marta Horstein as she arrived by automobile. She was apprehended outside the premises and ordered inside by the officers where they searched her incidental to the arrest. The search of her purse revealed substances which she admitted were cocaine and hashish. Respondent Lash, Inc., d/b/a Perrine Pub, holds beverage license Number 23-0898, Series 2-COP. Richard Breeder is the sole stockholder of this corporation, which he actively manages. He has been the owner since 1976, and has not previously been charged with any beverage law violations. Breeder has an announced policy against the sale or use of drugs on the premises, and has fired employees for such use.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in Counts one through five of the Notice to Show Cause. It is further RECOMMENDED that the charges contained in Counts six through eight be dismissed. It is further RECOMMENDED that Respondent's Beverage License No. 23-0898, Series 2-COP be suspended for a period of thirty (30) days. DONE AND ENTERED this 19th day of May, 1981 in Tallahassee, Leon County, 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 19th day of May, 1981.
Findings Of Fact By Stipulation filed September 11, 1986, the parties agreed to findings of fact 1-11. Donna Sawyer filed a preliminary application to participate in the state lottery for liquor license on January 20, 1984, on Department of Business Regulation form No. 747L. On September 18, 1984, Donna Sawyer was notified by Respondent that she had been selected in the lottery held on September 12, 1984, to be eligible to apply for a state quota liquor license. That on or about November 2, 1984, Donna Sawyer, acting through her wholly owned corporation, Sarasota County Liquors, Inc., filed a sworn "application for Alcoholic Beverage License" (Department of Business Regulation Form No. 700L), with the Division of Alcoholic Beverages and Tobacco. That application included a description of a location which was to be the licensed premises. A Personal Questionaire, Department of Business Regulation Form 710L, was also included by Petitioner with said application. The license application was denied by Respondent on March 8, 1985. The grounds for the denial as stated in the denial letter were Petitioner's failure to provide: (1) proof of right of occupancy to the premises Petitioner was seeking to license; (2) verification of financial investment; (3) business name, and (4) sketch of the premises affixed to the application. On April 10, 1985, Sandra Allen, Esquire, acting on behalf of Petitioner, requested an administrative hearing in order to contest the March 8, 1985, denial of the subject license. Joseph Forbes, Esquire, of Gainesville, Florida, was then retained by Petitioner to resolve the denial of the requested license, which was then pending before the Director of the Division of Alcoholic Beverages and Tobacco, as an informal administrative proceeding, pursuant to Section 120.57(2), Florida Statutes. In this capacity, Forbes, among other things filed a Motion for Continuance and Stipulation in this case attached to a June 6, 1985 cover letter. Forbes thereafter reached an agreement in the informal proceeding with Thomas Klein, Esquire, then counsel of record for Respondent, evidenced by letter dated October 1, 1985, which in its relevant portions indicated: This is to continue our telephone conversation of October 1, 1985, in which the following was discussed and agreed upon: Sarasota Liquors - your client will have 45 days from the date of this letter to cure the defects set forth in the March 8, 1985 letter of denial. Please direct your client to respond to the Tallahassee office. In order to rectify the original deficiencies causing the license denial, Petitioner re-filed an Application for Alcoholic Beverage License, Department of Business Regulation Form 700L, including exhibits, with Respondent, on or about November 13, 1985. Petitioner's re-filed license application was denied by Respondent on February 19, 1986, for two reasons: (1) "Application incomplete as applicant does not have right of occupancy to the premises for which she is seeking to license," and (2) "Division is unable to fully investigate applicant's financial documentation." On or about November 4, 1985, while searching for a location to submit as the licensed premises, in the re-filed application of November 13, 1985, Donna Sawyer and Ocie Allen met with Alton Allen at 258 S. Tamiami Trail, Sarasota, Florida, who was an agent for Walter Spector, owner of several retail store spaces at that address. Ocie Allen, acting on behalf of his corporation, Ft. Myers A & T Corporation, entered into a lease for a store at 258 S. Tamiami Trail, Sarasota, Florida. On or about November 4, 1985, Ocie Allen, acting on behalf of his corporation Ft. Myers A & T Corporation, purportedly subleased the premises at 258 S. Tamiami Trail, Sarasota, Florida to Petitioner. That Petitioner had submitted a letter dated November 4, 1984, signed by Jim Irey, as President of Florida Home Equity of Lee County, Inc., which is attached to the November 13, 1985 application, which stated that certain financial support would be available to the subject alcoholic beverage sales contemplated by Petitioner. That as a result of the investigation following the November 13, 1985 application, Respondent was "unable to fully investigate applicant's financial documentation," since Respondent's agents were unable to locate Jim Irey or his company at the address indicated on the November 4, 1984 letter. Based upon the evidence presented, the following additional findings of fact are made: Donna Sawyer's preliminary application to participate in the state lottery for a quota liquor license included instructions to the applicant that it was the first part of a two part application and that the second part would require proof of occupancy for the premises to be licensed. The second part of the application was that license application filed with the Division of Alcoholic Beverages and Tobacco on November 2, 1984, and again on November 13, 1985. As part of the notification that she was eligible to apply for a state quota liquor license, Donna Sawyer was advised that she had 45 days to file a full and complete application and that if she failed to do so, this failure would be deemed as a waiver of her right to file for a new quota liquor license. The letter also advised her that the Division had 180 days from the date of the drawing to act upon her application. The Petitioner's first quota liquor license application was denied on March 8, 1985. March 8, 1985, was within 180 days of the applicable lottery drawing held on September 12, 1984. The agreement of the parties to resolve the March 8, 1985, denial of the subject license evidences an tacit agreement by the parties to waive any applicable time limits existing at that time in order to allow the Petitioner to resubmit a corrected application within 45 days as allowed by the Thomas Klein letter of October 1, 1985. The Division investigated the Petitioner's second application and determined that the applicant did not have a right of occupancy to the premises sought to be licensed, 258 Tamiami Trail, Sarasota, Florida, because Petitioner only had a purported sublease for the subject premises from Ft. Myers A & T Corporation. Ft. Myers A & T Corporation had obtained a lease for the property on November 4, 1985, from Walter Spector, deceased at the time of the administrative hearing. Said lease between Walter Spector, lessor, and Ft. Myers A & T Corporation, lessee, provided that subleases must be approved by the lessor and be in writing. The Petitioner did not produce evidence of written authorization by Walter Spector to allow Ocie Allen or Ft. Myers A & T Corporation, Inc., to sublease the subject premises to the Petitioner or to any other person. The only evidence of such authorization was the hearsay statement by Ocie Allen that Walter Spector had orally given such authorization. Furthermore, Mr. Alton Allen, then agent for Mr. Spector for leasing this property testified he had no knowledge that Mr. Spector was ever informed of a sublease. Therefore it is found that the sublease violated a material provision of the underlying lease from Walter Spector to Ft. Myers A & T Corporation. Mr. Ocie Allen, agent for the Petitioner and Donna Sawyer, testified and it is found that there was no intention for the Petitioner to operate an alcoholic beverage license at the 258 Tamiami Trail location. Petitioner's November 13, 1985, license application was also denied on February 19, 1986, for: Application incomplete as . . . the Division is unable to fully investigate applicant's financial documentation. This denial was due to the Division's agents being unable to verify the availability of financial funding from Florida Home Equity of Lee County, Inc. The Petitioner had submitted a November 9, 1984 letter from that corporation in its November 13, 1985 license application offering certain funding. Upon checking phone directories and making attempted telephone calls to the source named in that letter, the Division was not able to find the named business as source of funding. The Division further investigated Florida Home Equity of Lee County, Inc. as an alleged source of funding by sending an agent, Robert B. Baggett, to the address supplied by the applicant in a November 9, 1984 letter from Florida Home Equity of Lee County, Inc., only to find that no such business was located there and no neighbors knew of a new location. Sandra Allen, Esquire, testified that the source of the funding at the time of the second application was a new company run by the same person who was behind Florida Home Equity of Lee County, Inc., which was named as the source in the November 9, 1984 letter. However, this new company's name and address and verification of continued financial support to the Petitioner could not reasonably be determined by the Division and no evidence was presented that the Division had ever been provided with said new company's name or location prior to the denial of the second license application. Contradictory testimony was presented by Lt. Ewing and Sgt. Mills as to the existence of a policy requiring a "14 day" deficiency notice letter to applicants. It is clear that that policy was not recognized in the office supervised by Sgt. Mills. It was also not established that Lt. Ewing had the authority to set or enunciate policy for the Division.
The Issue Should Petitioner discipline Respondent's Alcoholic Beverage License based upon Respondent's president selling, serving or giving an alcoholic beverage, on the licensed premises, to a person under the age of twenty-one contrary, to Section 562.11(1)(a), Florida Statutes?
Findings Of Fact Respondent, Rose Anne, Inc., d/b/a Scooters, holds license number 74-05039 SRX, Series 4COP issued by Petitioner for the premises located at 217 North Woodland Boulevard, Deland, Florida. Scott A. Price is the president and owner of that business. On October 22, 1997, Petitioner, through its agents, made random checks of businesses holding alcoholic beverage licenses issued by Petitioner. Those checks were made in Deland, Florida. In particular, the checks were designed to determine if businesses holding alcoholic beverage licenses were acting in compliance with the prohibition against selling, serving or giving alcoholic beverages on their licensed premises, to persons under the age of twenty-one, in violation of Section 562.11(1)(a), Florida Statutes. Respondent's premises was one of the licensed premises checked on that date. Petitioner's employees involved in the random checks included Special Agents Betty D. Adazzio, Melissa Winford and Kristin Hunt, operating with the assistance of Sergeant Steve Dovi of the Deland Police Department. The law enforcement personnel were supported in their activities by Ryan N. Luttrell, an under-aged person, who was used to determine if persons within the licensed premises under consideration would sell, serve or give Mr. Luttrell an alcoholic beverage in the licensed premises. Mr. Lutrell was born on November 23, 1978, as reflected on a Florida driver's license issued to him. That driver's license bore a picture of Mr. Luttrell which accurately depicted his appearance at the time. The license also indicated in bold print that Mr. Luttrell was under twenty-one years of age. In contact with Mr. Price, within Respondent's licensed premises, Mr. Luttrell used the license as a means of identification. Mr. Luttrell entered the licensed premises on the date in question. At that moment Mr. Price was tending the bar in the premises. Mr. Price brought Mr. Luttrell a menu and asked Mr. Luttrell if he wanted anything to drink. Mr.Luttrell told Mr. Price to give Mr. Luttrell a minute to decide. Mr. Luttrell then asked Mr. Price for a Bud Lite, an alcoholic beverage which is a beer. Mr. Luttrell also ordered cheese sticks. Mr. Price asked Mr. Luttrell for identification. Mr. Luttrell then produced the driver's license that has been described. Mr. Price briefly looked at the driver's license. Then Mr. Price took the driver's license to another area within the premises and held the license up by a chart. Mr. Price came back to where Mr. Luttrell was seated and asked what Mr. Luttrell would like. Mr. Luttrell repeated that he wanted a Bud Lite. Mr. Price filled a glass with beer and brought it back to Mr. Luttrell's location placing the glass of beer and a napkin in front of Mr. Luttrell. Mr. Price remarked that the cheese sticks would be right out. Mr. Luttrell asked Mr. Price where the bathroom was. Mr. Luttrell took the beer in the glass with him and took a sample of the beer and placed it in a vial. Mr. Luttrell went back to the bar area, and in further conversation with Mr. Price, Mr. Luttrell claimed that his pager had gone off, and used that excuse as a reason to exit the licensed premises. Once outside, Mr. Luttrell realized that he had not paid for the beer and Agent Adazzio sent Mr. Luttrell back into the premises to pay it. Mr. Luttrell re-entered the premises. Mr. Price was still behind the bar. Mr. Luttrell paid Mr. Price for the beer that Mr. Price had given Mr. Luttrell. Mr. Luttrell then again exited the licensed premises. At the time of the incident Respondent was not qualified as a Responsible Vendor pursuant to Section 561.705, Florida Statutes, and entitled to protections against suspension or revocation of its beverage license for the illegal sale of an alcoholic beverage to a person not of lawful drinking age, as envisioned by Section 561.706, Florida Statutes. Respondent's disciplinary history involves a violation of Section 561.501, Florida Statutes, for failure to timely file surcharge reports and to remit surcharges collected for periods in 1990. That case was resolved by entry into a Consent Agreement on December 17, 1990, in which Respondent acknowledged the violations and agreed to remit the sum of $250.00, as a civil penalty. This circumstance was in association with Respondent doing business as Scooters Coast To Coast at U.S. Highway #1, MM92.5, Tavernier, Monroe County, Florida, under license number 54-00658, Series 2COP.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: It is recommended that a final order be entered finding Respondent in violation of the aforementioned provisions and imposing a seven day suspension, together with a civil penalty of $1,000.00. DONE AND ENTERED this 12th day of August, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1998. COPIES FURNISHED: Susan C. Felker-Little, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Scott A. Price, President Rose Anne, Inc., d/b/a Scooters 102½ West Rich Avenue Deland, Florida 32720 Richard Boyd, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
