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 Whether Petitioner is entitled to apply for a new quota liquor license in Martin County, Florida.
Findings Of Fact Prior to March 29, 1990, Respondent duly advertized to the public that it intended to conduct a random selection drawing for quota liquor licenses that had become available in Martin County, Florida, by virtue of the county's growth in population as authorized by the provisions of Chapter 561, Florida Statutes. Petitioner timely filed a complete "Preliminary Application For New Quota Alcoholic Beverage License", the form that was necessary to participate in this drawing for the Martin County license. Petitioner listed as his address 1522 44th Street, West Palm Beach, Florida 33407. The application was accepted by Respondent and Petitioner was assigned a number. Petitioner's number was one of the ones selected by the random drawing. On April 6, 1990, a letter addressed to Petitioner with the heading "Notice of Selection" was prepared by Respondent and signed by Mr. L. B. Schoenfeld in his capacity as Chief, Bureau of Licensing and Records, Division of Alcoholic Beverages & Tobacco. This letter, referring to Mr. Schmoker's application for one of the licenses in Martin County, provided, in pertinent part, as follows: We are pleased to advise that you are one of the preliminary applicants selected in the drawing for an available liquor license in the county as referenced above. When an applicant is selected in a drawing, Florida law requires the selectee to file an appli- cation for a "grant" of the license or an application for the "issuance" of the license. The application for the "grant" of the license deals only with the qualifica- tions of the applicant and those persons listed on the application. The application for "issuance" of the license deals not only with qualifications, but includes among other things the location to be licensed. Having been selected and pursuant to 561.19(2), Florida Statutes and 7A-2.017, Florida Administrative Code, you must file a full and complete application for the "grant" or a full and complete application for "issuance" of the license within 45 days of the date of this letter. Failure to file a complete application for the "grant" or "issuance" of the license within such 45 day period will be deemed as a waiver of your right to file for the new quota license. * * * Please bear in mind that you must file either application within 45 days of the date of this letter, which is calculated to be May 21, 1990. We urge you to move forward promptly in order to save time necessary to process the application and complete the investigative process. ... This letter was addressed to Petitioner and mailed to him by certified mail, return receipt requested, on April 6, 1990, at "1522 44th Street, West Palm Beach, Fl 33407", the address he had listed on his application. The Notice of Selection letter was not received by Petitioner. The original letter in the original mailing envelope was returned to Respondent on May 1, 1990. The markings on the envelope by the U.S. Post Office indicate that delivery was attempted on April 9 and April 18, 1990. The markings further indicate that the letter was ordered to be returned to sender by the Northwood Station, West Palm Beach, Florida, on April 24, 1990, with the explanatory notation that the certified mailing had been "Unclaimed". Respondent made no effort to determine the reasons for the nondelivery because its policy is to rely on postal service for delivery of the notice. There were approximately 11,000 applications received by Respondent for all of the new quota licenses that had become available throughout the State. Of these, approximately 120 notices of selection, similar to the April 6, 1990, letter to Petitioner, were mailed by Respondent. Between 5 and 35 of these notices of selection were returned to Respondent by the U.S. Post Office as being undeliverable. The address listed on Petitioner's application is a single family detached dwelling at which Petitioner has resided since 1972. Petitioner works out of his home and receives his mail by home delivery at the address he gave. When Petitioner is not at home, he has his brother-in-law check his mail. Petitioner checked his mail on a daily basis during April 1990. On June 5, 1990, Respondent mailed to Petitioner at "1522 44th Street, West Palm Beach, Fl 33407", by U.S. Mail, a letter notifying Petitioner of Respondent's intent to deny his entitlement to apply for the new quota liquor license in Martin County. This letter gave Petitioner until June 15, 1990, to show cause why an order of denial should not be entered. No timely response was received by Respondent to its letter of June 5, 1990. On June 27, 1990, Respondent mailed to Petitioner at "1522 44th Street, West Palm Beach, Fl 33407", by certified mail, return receipt requested, a "Notice of Disapproval". This mailing was received and signed for by someone other than Petitioner. On July 23, 1990, Petitioner visited the offices of Respondent in Tallahassee, Florida. During this visit, Petitioner requested an administrative hearing, pursuant to Section 120.57, Florida Statutes, to contest the denial of his entitlement to apply for the quota license and he provided Respondent with the following address: "4937 Windward Avenue, Tequesta, Fl 33455". This is the address of a friend of Petitioner at whose residence Petitioner sometimes received mail. On July 30, 1990, Respondent sent to Petitioner an "Order on Informal Proceedings and Notice of Informal Hearing" by certified mail, return receipt requested, at the address in Tequesta, Florida. This certified mailing was subsequently returned to Respondent as being unclaimed. The U.S. Postal Service's Form PS 1510 can be used by a member of the public to request that the Postal Service determine why a certified mailing was undeliverable. There was no evidence that either party attempted to use that form in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which finds that Bernard T. Schmoker is not entitled to apply for a new quota liquor license in Martin County, Florida. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of February, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5853 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 3, 5, and 9 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 2, 6, 11, and 12 are rejected as being subordinate to the findings made. The proposed findings of fact in the first sentence of paragraph 4 are rejected as being subordinate to the findings made. The proposed findings of fact in the second and fourth sentences of paragraph 4 are adopted in material part by the Recommended Order. The proposed findings of fact in the third sentence of paragraph 4 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraphs 7, 8, and 10 are rejected as being subordinate to the findings made or as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 13 are rejected because the Petitioner's testimony about that telephone call lacked certainty as to when the call was made and to whom Petitioner spoke. Further, the proposed findings of fact in paragraph 13 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 14 are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1 and 3-6 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being contrary to the greater weight of the evidence and to the finding that the envelope reflected two attempts at mailing, not three. The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Nancy Waller, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32399-1007 Dennis E. LaRosa, Esquire 1901 Welby Way Tallahassee, Florida 32308 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
Findings Of Fact From 1972 until 1982, Bay Street, Inc., a Florida corporation, held a COP-type quota liquor license for the operation of a bar known as Howard's G- String at 102 East Bay Street in Jacksonville, Florida. Arthur Eisen and Bobby Joe McClain were owners of the stock in Bay Street, Inc., and Howard's G-String was operated by McClain as manager. After Bay Street's liquor license was revoked in October 1982, for reasons not pertinent here, a beer and wine license was issued to Lloyd Barrow, McClain's father-in-law, for an operation at the same East Bay Street location. The owner of the building at 102 East Bay Street is Arthur Eisen. Lloyd Barrow pays Eisen $1,000 per week for rental of the premises. On June 14, 1983, pursuant to foreclosure, the liquor license held by Jax's Bar, Inc., doing business as Terminal Bar (the license at issue here), was sold for $28,500 on the Duval County Courthouse steps. Purchaser of the license was Karen Alford. The money used to make this purchase was a loan from Arthur Eisen. This loan was repaid by Karen Alford by means of an undated check numbered 4-0486533 drawn on the Hollywood Federal Savings and Loan Association in the amount of $28,500 payable to the order of Harry Katz Escrow Account. Mr. Katz, in turn, transferred the sum of $28,500 by his escrow account check numbered 4125 to the said Arthur Eisen on November 3, 1983. Ms. Alford purchased the Hollywood Federal check with money drawn from two other accounts at the Hollywood Federal Savings and Loan Association. One portion, totalling $19,528, came from account number 341343 in the name of Karen Alford as trustee for Rosemond Eisen. The additional amount of $9,761 was drawn from account number 387056. This latter account was a joint account in the names of Karen Alford and Rosemond Eisen. The $789 difference between the $29,289 (the total of the two components) and the $28,500 repayment check was deposited into a third account in the name of Karen Alford, account number 141730. Petitioner introduced a copy of certificate of deposit number 8590 dated June 8, 1978, in the name of Karen J. Alford in the amount of $55,761 which, on January 9, 1979, was redeposited into account number 341356, which reflected that Karen J. Alford was trustee for Rosemond Eisen as beneficiary. Accompanying that certificate and deposit card is a notarized statement dated February 27, 1984, from Alicia Dyce, assistant manager/assistant secretary of the Hollywood Federal Savings and Loan Association, which indicates that Karen J. Alford was the sole owner of certificate account number 341375. The statement further indicates that when an account reads "in trust for" (ITF) it is to designate a beneficiary in the case of the death of the owner of the account. The statement further says that if the account had been owned by both parties the account would have stated the two names connected by the word "and" and not "ITF." Ms. Alford contends that the $55,761 utilized to purchase the initial certificate of deposit from which the subsequent $28,500 payment was made came from a divorce settlement received from her estranged and former husband and not from Arthur Eisen. Respondent was unable to present any evidence to contradict this contention by Petitioner. There is, however, other evidence dealing with the business relationship between Ms. Alford, as president of the Petitioner corporation, and Bobby McClain and Arthur Eisen, as manager and landlord respectively, which causes some question to arise as to the true relationship between the parties. Ms. Alford contends that as a result of the business arrangement she was to receive a draw of $500 per week from the operation plus a return on the investment of $750 per month. On a four-week month, this would amount to a return of approximately $2,750. In addition, out of the operation Ms. Alford was to make weekly rental payments of $1,000 to Arthur Eisen and, at Eisen's suggestion, was to pay Bobby Joe McClain a salary of $500 per week and an automobile expense of $50 per week. McClain was to make daily bank deposits from the business proceeds and was to send Ms. Alford weekly computer printouts reflecting the income and expenses for the period. Only one of these computer printouts was introduced. Covering the period from January 30, 1984, through February 4, 1984, the printout showed a gross profit before expenses of $2,868.03 and expenses of $2,923.44, with a net loss of $55.41. However, using the figures contained on the printout and computing profit on the basis of gross sales less cost of goods sold reflects a gross profit of $2,722.43 which, when thereafter subtracting the weekly expenses of $2,923.44, reflects a net loss of $201.01. It should be noted that the weekly expenses include such items as rent of $1,000, payroll of $1,235.30, utilities of $243.08, sales tax of $195.06, and a miscellaneous payment of $250. If this printout is a representation of the continuing success of the business, it is obvious that Ms. Alford will never see her stated profit, much less a return of her investment, while Arthur Eisen is drawing $1,000 per week ($4,000 per month) in rent receipts and his former associate, McClain, is receiving a handsome income from the business as well. Taken together, these figures tend to raise an inference that not only Eisen, but McClain as well, has an interest in the business, which is supported by the evidence that it was Eisen who suggested the investment to Ms. Alford in the first place, made the investment for her using his own funds, and insisted that he not be repaid until the redemption time had expired on the license foreclosure. It is also noteworthy that Eisen was the individual who suggested to Ms. Alford that she hire Bobby Joe McClain to manage the bar; and, notwithstanding Ms. Alford's contention that she had known McClain for close to 20 years, the fact also remains that McClain was a former associate and co-owner of another bar with Arthur Eisen. There are other inconsistencies in Ms. Alford's testimony and in the Petitioner's case which give rise to a suspicion that Ms. Alford is not in fact the true "owner" of the business but that the entire transaction is a screen to hide the interest by Arthur Eisen who, because of his prior license revocation location, would be ineligible to hold this license. Ms. Alford indicated that she put the money in question in trust for her sister so that, if anything would happen to her, the sister, Miss Rosemond Eisen, would be able to retrieve the money and, at her discretion, distribute it to Ms. Alford's children. Ms. Alford contends that her children are not equipped to handle money of this magnitude, yet she relates that one is an investment counselor and stock broker and another son is a geophysicist. Another inconsistency is that Ms. Alford contends she has invested as much as $35,000 in this business; yet she does not know how many people were hired by McClain, she does not know on what account checks were written, the checking accounts involved were in McClain's name and not hers, and she does not even recall the name on the checks she received. She contends that while it was in operation the bar grossed between $4,000 and $4,200 a week; yet, as was shown previously, the one income statement introduced by Petitioner reflected a gross income of substantially less than that and a net loss. Ms. Alford further contends that she does not know from a review of the weekly computer printouts what the liquor expense was. Her reason for this was that her son, who she claims is incapable of handling inherited funds, would review all the submissions made by McClain. She further contends that she has visited the bar three or four times since it has been in operation but cannot recall when these visits were. She did not see the business before she invested her money in it but relied solely on the advice given her by her former brother-in-law, Arthur Eisen. By her own admission, it was Eisen who did all the preliminary work relative to buying the license and setting up the business without her, and she had no participation save for the investment of money until she came up to apply for the licenses, at which time she met and worked with Mr. Katz. Eisen contends he asked Ms. Alford to invest in this business because he knew she had the money and knew she would be receptive to it. He called her by telephone and told her he had a business proposition for her, and, when she indicated some interest, he went to Miami to see her and tell her about it. He told her how much it would cost and what she should earn if she made the investment and operated it properly. He told her that McClain would manage it for her and that he did not want to do it himself because of his extended interests in the Houston area, on which he wanted to concentrate. Eisen states he felt safe in representing McClain because they had worked together for 18 years previously and that his only participation in this business owned by Ms. Alford is the lease which brings him $1,000.00 per week. This was, he claims the primary motivation for the deal. Eisen contends no participation in the business, either operational or financial. Notwithstanding this denial, the overwhelming circumstantial evidence indicating otherwise prevails.
The Issue Whether or not on or about October 31, 1978, the Respondent, Cesar Augustus Rodriguez, a licensed vendor or distributor, or his authorized agent, did sell alcoholic beverages with an improper license, to-wit: Selling under authority of a license when the license fee required for renewal had not been properly paid, contrary to Section 562.12, Florida Statutes.
Findings Of Fact On September 30, 1978, the Respondent, Cesar Augustus Rodriguez, issued or caused to be issued a check in the amount of $1,750.00 made in behalf of the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The purpose of this check was to pay for the annual renewal of Respondent's beverage license, Number 39-994, 4-COP, under which the Respondent was trading as Tom's Place. The requirement for payment of the renewal of the license is established by Section 561.27, Florida Statutes. The check for payment was drawn on the Barnett Bank of Tampa. When presented by the Petitioner for payment, the check was returned on the basis that there were insufficient funds for the check to be honored. The check number in question was check No. 407, drawn on account No. 01704386. (The facts as stated above were arrived at pursuant to a stipulation entered into by the parties and placed on the record during the process of a formal hearing conducted pursuant to Section 120.57, Florida Statutes.) Representatives of the Petitioner tried on a number of occasions to get the Respondent to pay the required license fee by an instrument that was negotiable. Those representatives were unsuccessful in their attempts, and on October 30, 1978, Captain R. Caplano, District VI Supervisor, Division of Alcoholic Beverages and Tobacco dispatched officers to retrieve the aforementioned beverage license from the premises known as Tom's Place. The license was brought back to the District headquarters. Around 4:55 p.m. on October 30, 1978, the Respondent came to the District office of the Petitioner with the intention of redeeming the license to Tom's Place and two other licensed premises owned and operated by him, namely, Port Tampa Bar and Rene's Lounge. Rodriguez offered to pay the licensing fee in cash; however, there was insufficient cash to pay the entire fee required and the necessary penalty established under Section 561.27, Florida Statutes. Moreover, the language of of Rule 7A-2.15, Florida Administrative Code, establishes that the Petitioner shall accept only a cashier's check, money order or certified check in payment for the license fee once an insufficient funds check has been tendered for that payment initially. During the course of the meeting between the Respondent and Captain Caplano on the afternoon of October 30, 1978, held in the District office, Mr. Rodriguez indicated his concern that he not be able to operate during the interim period necessary to obtain the proper form of payment for the license fee and penalty. After that discussion, the license to Tom's Place and the other licenses discussed were returned to the Respondent with the understanding that the Respondent was to bring in the proper license fees and penalty payments on the following morning, October 31, 1978; immediately after the banking institutions had opened, to allow the Respondent to obtain the necessary cashier's checks. The Respondent was under the impression that between the hours that his licenses had been returned to him and the time on the morning of October 31, 1978, to make the proper payment, he was at liberty to operate the licensed premises to the extent of selling alcoholic beverages. Captain Caplano, through his testimony in the course of the hearing, established that the act of returning the license on the evening of October 30, 1978, was tantamount to allowing the Respondent to operate, conditioned upon the immediate payment of the license fees on the following morning of October 31, 1978. The licensed premises, Tom's Place, was opened the next morning at 7:05 a.m. It opened after the license had been seized on the prior afternoon of October 30, 1978, at 4:31 p.m. and after advising the employee on duty for the Respondent that no more alcoholic beverages could be sold following the seizure. This arrangement was superseded by the arrangement between the Respondent and Captain Caplano, which was made in the late afternoon of October 30, 1978. Turning back to a consideration of the situation on October 31, 1978, at the time Tom's Place was opened, a different employee was on duty than that person who was there on the afternoon of October 30, 1978. This new employee was one Corine Lewis. At about the time the premises opened, she called the stepson of the Respondent to ascertain whether or not alcoholic beverages could be sold. The response of the stepson, who was acting under the authority of the Respondent, was to the effect that the "boss" was on the way with the license, creating the belief in the mind of Ms. Lewis that she could sell alcoholic beverages. At around 8:30 a.m., the same Ms. Lewis called the Petitioner's office and spoke to Beverage Officer John Allen, the same officer who had removed the license from the premises on the afternoon of October 30, 1978. Officer Allen instructed Ms. Lewis not to sell any alcoholic beverages without the license being available. Following the conversation between Ms. Lewis and Officer Allen, the Respondent came to the District headquarters around 10:00 a.m. on October 31, 1978, with the necessary funds to pay for the renewal of the licenses pertaining to Port Tampa Bar and Rene's Lounge. He did not have the necessary funds to pay for the renewal of the license for Tom's Place. He indicated to officials at the District office of the Petitioner, that it would be necessary for him to obtain a cashier's check from a separate bank for the payment of the license for Tom's Place, meaning by that a separate bank than the one from which the cashier's checks were issued for the purpose of paying the licenses for Port Tampa Bar and Rene's Lounge. Rodriguez indicated that he would leave the license for Tom's Place until he could obtain the money for the license fee. He did in fact leave that license with the Division of Alcoholic Beverages and Tobacco and the fee was paid sometime in the early afternoon of October 31, 1978. At around the time the conversation was occurring between the Respondent and Captain Caplano, the representative of the Petitioner, Officer Allen had returned to Tom's Place. When he entered the licensed premises, he discovered a number of patrons in the premises and opened beer bottles in evidence. Officer Allen inquired of Ms. Lewis about the license and Ms. Lewis informed him that she did not have the license. Officer Allen then left the licensed premises and called Captain Caplano to ascertain the whereabouts of the license. He also advised Captain Caplano that alcoholic beverages had been sold in the licensed premises on the morning of October 31, 1978. Captain Caplano indicated that he had the license and that the license fee had not been paid and that Officer Allen should write a citation for selling alcohol without a license if in fact that had occurred at a time when the premises was not operating under an authorized beverage license. Officer Allen followed those instructions, and cited the licensee for a violation of Section 562.12, Florida Statutes, which pertains to selling alcoholic beverages with an improper license. While Officer Allen was still at the licensed premises the morning of October 31, 1978, the stepson of the Respondent arrived at that location to close the bar, and did close it. Under the circumstances, the Respondent was of the persuasion that he could operate the bar until such time as the license fee had been properly paid after the bank had been opened on the morning of October 31, 1978. He did not feel that he had the opportunity to visit two banks to get the necessary cashier's checks, prior to reporting to the District office of the Petitioner to pay the license fees and penalties. Captain Caplano was of the belief that the licensee could operate on the evening of October 30, 1978, but did not envision the right of the licensee to operate on the morning of October 31, 1978, if the licensee did not immediately tender payment for the license fees on the morning of October 31, 1978. In the mind of Captain Caplano, the idea of selling any form of alcoholic beverages on the morning of October 31, 1978, without first paying the license fee for Tom's Place constituted the sale of alcoholic beverages under an improper license. It is unclear exactly when the alcoholic beverage was sold on the morning of October 31, 1978, in Tom's Place. Ms. Lewis' testimony is to the effect that one beer was sold sometime between 7:05 a.m. and 8:30 a.m., with 8:30 a.m. being the time at which Officer Allen advised Ms. Lewis that no alcoholic beverages should be sold on that morning without the license being on the premises and this testimony is unrefuted by the Petitioner. In view of the totality of the facts, it has not been demonstrated by the Petitioner that the Respondent was acting in derivation of the inherent authority to sell alcoholic beverages extended to him when the licenses were returned to him on the afternoon of October 30, 1978, through the person of Captain Caplano. Therefore, there has been no showing of a violation of Section 562.12, Florida Statutes.
Recommendation It is recommended that the case before the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Number 33276- A, be dismissed. DONE AND ENTERED this 6th day of March, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary Jo M. Gallay, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 Cesar Augustus Rodriguez t/a Tom's Place 2605 West Kennedy Boulevard Tampa, Florida 33609
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Ramesh Gordon Kowlessar, held license number 16-12937, series 2APS, authorizing the sale of alcoholic beverages (beer and wine) for consumption off the premises known as K's American & West Indian Grocery & Food, located at 4486 West Hallandale Beach Boulevard, Pembroke Park, Florida (hereinafter "the licensed premises"). On March 25, 1997, Sergeant Carol Owsiany, an agent with the Division of Alcoholic Beverages and Tobacco, and Michael Kaufman, a special agent with the Division of Alcoholic Beverages and Tobacco, operating undercover, visited the licensed premises to investigate a complaint that Respondent was selling alcoholic beverages for consumption on the premises (a practice not permitted by Respondent's license). Sergeant Owsiany and Agent Kaufman entered the premises at or about 10:15 a.m., and were greeted by Respondent who, after assuring the agents that they could dine on the premises, seated them at the counter. Sergeant Owsiany ordered a meal of curry and rice, and Agent Kaufman requested beer with the meal. The Respondent directed Agent Kaufman to the beer cooler. Agent Kaufman selected two cans of "Budweiser" beer (an alcoholic beverage) from the cooler and returned to the counter, where he handed one beer to Sergeant Owsiany. The agents opened their respective beers, and consumed a portion of the beer while seated at the counter in the presence of Respondent. Following service of her meal, Sergeant Owsiany consumed a small portion of food, and requested that the remainder be packaged to go. The agents then proceeded to the check-out counter with the two open and partially consumed beers, as well as the packaged meal. At the counter, the agents observed 52 packages of unstamped, non-Florida-tax-paid cigarettes offered for sale. Sergeant Owsiany paid for her meal and the two beers, and the agents exited the building.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the charges set forth in the Administrative Action; imposing a civil penalty in the total sum of $1,000 for such violations, subject to Respondent's option to substitute a period of suspension in lieu of all or a portion of the civil penalty; and, requiring Respondent to pay to the Department excise taxes in the sum of $17.63. DONE AND ENTERED this 22nd day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 22nd day of April, 1998.
The Issue The ultimate issue is whether Petitioner is entitled to apply for a new quota liquor license in Hillsborough County. This requires a determination of whether Petitioner waived his right to apply for the license when he failed to do so within forty-five (45) days of a notice sent by the Division of Alcoholic Beverages and Tobacco, but returned undelivered.
Findings Of Fact On July 5, 1988, John Wilson Brown (Brown) filed a preliminary application for a new quota liquor license in Hillsborough County, Florida. This application entitled him to be considered in a double random selection public drawing held by the Division of Alcoholic Beverages and Tobacco (DABT) for the purpose of awarding licenses which have become available through population growth in a county permitting the sale of alcoholic beverages. On the application form, Brown gave his "correct mailing address" as 3327 Holly Hock Court, Orlando, Florida 32812. This is his residence, and is the only address supplied on the form. The drawing was held for Hillsborough County applicants on October 28, 1988. The Division advertises the drawings in the Florida Administrative Weekly and gives notice to the news media to run stories. Brown received a priority number in the October 28, 1988 drawing which entitled him to be one of the initial applicants for award of a liquor license. "Winners" of the drawing, like Brown, must apply for the license. Those applications are reviewed and an investigation is conducted to determine whether they qualify under the beverage law. If not, the next applicant in line is considered. In a letter dated November 8, 1988, sent certified mail, to Brown's Holly Hock Court address, DABT attempted to notify Brown that he was one of the preliminary applicants selected in the Hillsborough County drawing. The letter cited the applicable statute and rule and stated that a full and complete application must be filed within forty-five (45) days of the date on the letter, in this case, December 23, 1988. The letter further provided that failure to file within the deadline would be deemed a waiver of the right to file for the new quota license. Brown never received that letter. During the period, July 1988 through January 1989, he was working twelve to fourteen hours a day, seven days a week at two restaurant-lounges he owns in the Orange County area. He did not review his mail for weeks at a time and relied on his live-in girlfriend to pick it up. He looked at the mail at the end of the month in order to pay the bills. The postal-service attempted to deliver the certified letter on November 10, 1988, November 16, 1988 and November 23, 1988. Brown never picked up the letter from the post office and it was returned unclaimed to the DABT, on or about November 28, 1988. Brown vaguely remembers seeing the certified letter slip from the post office, but did not attempt to pick up the letter until late November or early December. By then, the letter had been returned. Brown had no idea at that time who had attempted to send him a certified letter. No further contact was attempted by the DABT until January 23, 1989, when Brown was sent, by regular mail, a notice that the Division intended to deny his entitlement to apply for the license because he failed to apply within the prescribed time period. Brown received this notice and immediately sent a response, dated January 27, 1989, that he had not been aware of the certified mail and requesting reconsideration. Brown also spoke by telephone with Barry Schoenfeld, Chief of Licensing for the Division. Brown explained that he had been extraordinarily busy and had not attempted to pick up the certified letter until it was too late. On February 10, 1989, DABT sent, by certified mail, the notice of disapproval which gave rise to this proceeding. Brown received that notice, sent also to his Holly Hock Court residence. The value of a new quota liquor license varies from county to county. In Hillsborough County it is worth $50,000.00 to $75,000.00, or more. The agency utilizes certified mail for its notice of drawing results to help assure that the applicant actually gets the notice. Only one application extension has been granted in the seven years since the drawing procedure was initiated. That case involved an individual who was in the military and presented a hardship based on that service. The individual was given an additional forty-five (45) days to apply.
Recommendation Based on the foregoing, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco issue its final order finding that Petitioner has waived his entitlement to file for a new quota liquor license. DONE and ORDERED this 6th day of June, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 6th day of June, 1989. COPIES FURNISHED: HAROLD F. X. PURNELL, ESQUIRE OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. 2700 BLAIR STONE ROAD POST OFFICE BOX 6507 TALLAHASSEE, FLORIDA 32314-6507 JOHN B. FRETWELL, ESQUIRE ASSISTANT GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1000 LEONARD IVEY, DIRECTOR DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1000 JOSEPH A. SOLE, ESQUIRE GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1000 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1000
Findings Of Fact The Tanga Lounge, operated by Respondent Rodde Inc., is located at 6333 West Columbus Avenue, Tampa, Florida. This facility has been licensed by Petitioner at all times relevant to these proceedings. Respondent's records show Mr. Joe Redner as the sole stockholder and corporate officer of Rodde, Inc., which is the holder of alcoholic beverage license No. 39-738. Case No. 81-2566 contains three counts of begging or soliciting for alcoholic beverages by employees of Respondent on August 6, 1980. Testimony by former Beverage Officer White established that the solicitations of three drinks by two employees were made as charged in the Notice to Show Cause. White purchased the drinks as requested by these employees, who received a "ticket" for each of the drinks purchased for them by White. Case No. 81-2567 contains 44 counts of begging or soliciting drinks by various employees of Respondent and 44 counts charging that Respondent conspired with these employees for the purpose of soliciting drinks. These charges are primarily based on the investigations of Beverage Officers Gary Hodge and Michael Freese. The period of their investigation was October 17, 1980 through May 15, 1981. Count 52 was based on a solicitation of Detective Phil Mickel of the Tampa Police Department, who was in the licensed premises in an undercover capacity on November 6, 1980. At the request of dancer-employee Cathy Andrews, Mickel purchased a "double" for her and observed that she received two tickets from the waitress. 5 Former Tampa Police Department Detective Nick Haynes was in the licensed premises on November 6, 1980, and was approached by the dancer-employee, Cheryl Jonas, who requested that Haynes purchase a drink for her. He did so. This transaction occurred as charged in Count No. 51. Beverage Officer Freese individually and in conjunction with Beverage Officer Hodge, accounted for 38 solicitation charges (Counts 53-57, 59-63, 66, 68-88, and 163-167) . The solicitations charged in Counts 53, 55, 71-80, 83, - 84, 88, 163, 166 and 167 occurred as alleged and involved direct requests for the purchase of drinks ("Will you buy me a drink," or words of similar import) . Freese observed employees receive tickets for these drinks from the bartender or waitress in most instances. The solicitations charged in Counts 54, 56, 57, 59-63,66, 68-70, 81, 82, 164 and 165 were not supported by evidence of direct requests for the beverage purchases by employees of Respondent. At a meeting held about December 17, 1980, Beverage Officers Freese and Hodge were instructed by their supervisor to require that dancers request drinks before ordering. This procedure was adopted to avoid situations where the beverage officer was not asked to buy a drink, but eventually received the bill for the dancer's drink. In implementing the instructions, Freese used these or similar words: "If you want a drink, ask for it.", This statement possibly misled the dancers to believe that Freese was inviting them to order whenever they wanted drinks. The date when Freese first used this statement was not established, but it was subsequent to the mid-December meeting. It was noted that Freese was not solicited during the first two months of the investigation. Therefore, all or substantially all of the solicitation charges involving Freese took Place after he first issued the "invitation." Beverage Officer Hodge individually testified as to solicitation Counts 58, 64, 65 and 67. Counts 58, 65 and 67 did not involve a direct request for beverage purchase. Count 64 occurred as alleged and was based on a direct request for beverage Purchase ("Why don't you buy me one now?"). This request was made during the early morning of January 13, 1981. Although this was after the December meeting which Hodge attended, it was not shown that he made any statement which could have been interpreted as an "invitation" by any employee of Respondent. The fact that customers regularly Purchased drinks for the dancers was well known to the management as evidenced by the tickets issued to employees for drinks purchased in their behalf. These tickets were redeemable by the dancers for one dollar each. Thus, employees were rewarded and implicitly permitted to solicit drinks. Respondent's announced policy was, however, to reprimand or discharge any employee who was caught begging or soliciting drinks. This policy was attested to by bartenders; former employees and dancers. Although it cannot be found that Respondent actively encouraged its employees to solicit drinks, it did encourage socializing with customers to a degree which would elicit offers to purchase drinks for them. Respondent has since discontinued the practice of issuing tickets or other employee incentives to obtain customer purchased drinks. Counts 127 through 161 involve drug charges. Purchases were made by Beverage Officer Freese and Hedge, individually and together. Their testimony and that of Florida Department of Law Enforcement Crime Lab personnel established that controlled substances were purchased from dancer-employees of Respondent on the licensed premises as charged in Counts 127 through 137, 156 and 158. The transactions which-were established to have been carried out involved cocaine, methaqualone and cannabis deliveries by dancer-employees Margie Wade, Janie Marsie, Lori Basch and Lisa Scibilia on February 21, 24, 27; March 2, 9, 13, 17, 23; May 13, 15, 1981. It should be noted that Counts 136 and 137 actually involved one transaction where Hodge and Freese split the delivery. Count 161 concerned a transaction outside the licensed premises and this count, as well as Count 158, involved an employee of another establishment. Petitioner's Exhibit 43 and the supporting testimony concerned a transaction for which there was no charge. Counts 138 through 151, 154 and 159-161 alleged conspiracies to deliver controlled substances corresponding to other counts which alleged actual deliveries. There was testimony on the involvement of third person (not shown to be associated with the Respondent) only as to Counts 134, 146, and 147, which essentially covered a single transaction. No other evidence of conspiracy was presented. On one occasion, Redner was in the Tanga Lounge and within about 15 feet of the beverage officer and the dancer when the delivery took place. However, there was no evidence that Redner was involved or that he had any knowledge of the transaction. Testimony by a former employee that Redner participated in drug use was lacking in credibility and was not corroborated. Counts 3 through 30 and 33 through 50 are charges of lewd dancing by employees of Respondent on the licensed premises. The charges cover 46 dances on 12 separate dates between October, 1980, and February, 1981, performed by 11 different dancer-employees. The acts complained of in these counts were witnessed and attested to by Beverage Officers Hodge and Freese and Tampa Police Department Detective Mickel. The alleged lewd conduct included exposing of the breasts, vagina and anus by dancers during their on-stage performances. Typically, the dancers received dollar tips which customers placed in their bikini bottoms. Some dancers allowed customers to reach inside the bikinis in order to touch their pubic areas. On several occasions the dancers squatted and picked up the dollar bills with their exposed genital areas. On December 11, dancer Cathy Andrews rubbed her vagina, then rubbed the genital area of Beverage Officer Freese, who was observing the dance. Mr. Redner was present during much of the alleged lewd conduct. Although Redner testified that "flashing" was acceptable, the exposure of sexual organs as attested to was not limited to brief "flashes," but was prolonged. Further, Respondent's contention that dancers receiving tips tried to avoid contact by customers is not credible. Rather, the testimony of the officers established that dancers frequently encouraged customers to place their hands against the dancers pubic areas when offering tips. Respondent's, lounge is advertised as an adult entertainment facility and is generally known to include nude dancing. There was no competent evidence as to community standards for this type of conduct in the Tampa area, nor was there any evidence that these acts shocked or offended anyone present other than the investigating officers. Detective Mickel conceded that about five other bars he has visited offer this type of entertainment. Counts 31 and 32 concern an offer of prostitution by one of the dancer-employees to the beverage officers. Their testimony established that the offer was made as charged. This was, however, a single incident and there was no evidence that such offers were recurring or that Respondent had knowledge of this transaction. Counts 1 and 2 of Case No. 81-2567 allege that Robert Rodriguez holds an undisclosed interest in the licensed premises. Such interest, if any, was not reflected in the license transfer application submitted on April 23, 1976. Rather, Joseph Redner and Joe DeFriese were identified as the sole stockholders with no direct or indirect interest held by any other person. Rodriguez previously owned an interest in Deep South Plantation Foods, Inc., whose alcoholic beverage license was revoked by Petitioner. Redner was at one time employed by Rodriguez as manager of Deep South Petitioner asserts that Rodriguez became ineligible to hold an interest in an alcoholic beverage license as a result of the revocation, pursuant to Section 561.15, Florida Statutes, and that he and Redner therefore concealed Rodriguez's subsequent interest in the Tanga Lounge. Respondent contends that Rodriguez is the manager of the Tanga Lounge, but holds no direct or indirect interest therein. Rodde, Inc., was organized on April 19, 1976, and a $2,000 down payment deposit on the contract for purchase of the Tanga Lounge and liquor license was made on April 20, 1976, pursuant to contract signed by DeFriese and the prior owners on that date. This $2,000 check was issued by Robert Rodriguez against his own account. Petitioner produced this cancelled check (Petitioner's Exhibit 4) and numerous other documents which establish that Rodriguez participated in all aspects of Rodde, Inc., management and financial operations since its inception. Rodriguez has unrestricted authority to withdraw funds from corporate accounts and has signed or cosigned for loans and credit purchases. Rodriguez also utilized a Rodde, Inc., credit card to pay personal expenses on a vacation to Las Vegas in 1979. There was no evidence of reimbursement or other accounting to the corporation for these expenditures. The testimony of the Rodde, Inc., employees did not corroborate Redner's testimony that Rodriguez is manager of the Tanga Lounge. Rather, these employees believed Rodriguez was somehow associated with the business, but regarded Redner as the manager and their only supervisor. Rodriguez issued two checks for $1,408.05 on December 1, 1979, one payable to himself and the other to Redner (Petitioner's Exhibit 32) . These checks each carried the notation "bonus $1500", with a further notation apparently accounting for $91.95 in withholding tax. In view of Rodriguez's duties and functions within the corporation, this "bonus" can only be considered a participation in profits. Redner's credit rating and financial management skills are poor. Therefore, Respondent contends that a manager with strength in these areas was needed to ensure business success. However, Rodriguez's unlimited authority in dealing with corporate funds, the investment or loan of his personal funds, his participation in business profits and the absence of any apparent supervisory duties are inconsistent with the employee theory held out by Respondent.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent be found guilty of the charges contained in Counts 1, 2 and 3 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2566. It is further RECOMMENDED that Respondent be found guilty of the charges contained in Counts 1, 2, 31, 32, 51, 52, 64, 127-137, 156, and 158 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2567. It is further RECOMMENDED that all other charges be dismissed. It is further RECOMMENDED that Respondent's Alcoholic Beverage License No. 39-738 be revoked. DONE and ENTERED this 9th day of July, 1982 at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1982.
Findings Of Fact The first paragraph of charges in the Amended Notice to Show Cause reads as follows: That you, P & D SOUTH OF MARTIN COUNTY, INC. d/b/a STAGE EAST, licensed under the beverage laws of the State of Florida as a licensed vendor holding a SRX series license, did in the year of 1982, violate the beverage laws, to wit: you failed to maintain as 51 percent of your gross revenue the sale of food and non- alcoholic beverages, based upon the average monthly gross revenue for the period 12/81 to 12/82, contrary to F.S. 561.20(2)(a)(3), Rules 7A-3.14 and 7A-3.15(3)(b), Florida Administrative Code. In the Joint Pre-Hearing Stipulation and again at the commencement of the formal hearing in this cause, Respondent admitted the violation alleged in that paragraph. Also at the commencement of the formal hearing, Petitioner dismissed with prejudice the charges contained within paragraphs numbered too and three of the Amended Notice to Show Cause. The case therefore proceeded forward for the presentation of evidence in aggravation or in mitigation of any penalty to be imposed against Respondent. Respondent corporation, P & D South of Martin County, Inc., does business as Stage East and is the holder of alcoholic beverage license No. 53- 352, Series 6-COP SRX. Stage East opened for business on November 25, 1981, at 200 South Dixie Highway, Stuart, Martin County, Florida. When Richard Pouser, Respondent's president, applied for an alcoholic beverage license, he spoke with Beverage Officer Richard White. White explained to Pouser that an SRX license is a special license, carrying with it a requirement that the restaurant derive at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages. Pouser advised White that Respondent intended to obtain an unrestricted quota license as soon as one became available in Martin County. When Respondent prepared to open Stage East, it leased a building containing two separate portions of space. It was Respondent's intention from the initial creation of its new business to open the first section of the restaurant as an area also geared to entertaining persons under the age of 50. In that section, Respondent has electronic games, televisions, pool tables, a dance and bandstand area, and two bars. There are approximately 25 tables in the "back bar" area and approximately 40 tables in the front or bandstand area. Full food service is available in both areas. In this section, Respondent also provides either recorded or live musical entertainment every day, ranging from local musical talent to "mini-concerts" by groups or individuals with national or international recognition. The second section of Stage East, which comprises an additional 4,000 square feet, is to be a family-type food service area, analogous to a "Bennigan's" style of restaurant. Only the first section of Stage East was opened on November 25, 1981, and Respondent continued its preparations to open the second section also. Respondent filed its plans for the proposed second section and application for a building permit and zoning approval with the City of Stuart on January 4, 1982. The City denied Respondent's application the same day, citing as its reason "inadequate parking." After Respondent expended substantial monies for legal fees and engineering studies, zoning approval was finally obtained in June 1983. The evidence is uncontroverted that the City had no legal basis for its denial of Respondent's application; rather, certain members of the City Commission personally did not approve of an establishment like Stage East. In February 1982, Beverage Officer White received an anonymous complaint that Respondent was not meeting its 51 percent requirement. He visited the premises and, upon examining the cash register receipts and food tickets, ascertained that only approximately 25 to 30 percent of Respondent's business had been from the sale of food and nonalcoholic beverages. On February 9, 1982, White served on Pouser an Official Notice with a compliance deadline of August 9, 1982. On September 15, 1982, White returned to Stage East to make a compliance inspection. After speaking with Pouser and ascertaining that the 51 percent requirement was still not being met, White issued a second Official Notice. Although that Notice contained a compliance deadline of January 1, 1983, White returned to Stage East on December 23, 1982, met with Pouser, and reviewed Respondent's records. A cursory examination revealed that Respondent still had not met the 51 percent requirement. Between the time that White first advised Pouser of the 51 percent requirement and the date of the formal hearing in this cause, Respondent attempted to obtain a quota license, which carries no requirements as to food consumption on the premises. For a year, Respondent advertised daily in the Stuart newspaper that it wished to purchase a quota license. Respondent contacted Beverage Officer White, liquor distributors, and owners of quota licenses in Martin County to ascertain if they had a quota license for sale or if they knew someone who did. During this time, the quota license for Harper's became available. The license holder asked $250,000 cash, Respondent offered $200,000 cash, and Walgreen's purchased Harper's license for $215,000. By the time of the formal hearing in this cause, Respondent had entered into favorable negotiations for the SR license at Boston's. Although Respondent had inquired whether Petitioner would permit the transfer of Boston's license to Respondent, Petitioner had not answered Respondent's inquiry at the time this cause was heard. In addition to taking steps to expand its restaurant area and to obtain an alternate license throughout the time period in question, Respondent did all it could to encourage its customers to purchase food so that Respondent could meet the 51 percent requirement to which its license was subject. Respondent hired an experienced chef and additional kitchen staff in order to offer a larger variety of food at lower prices. Respondent changed its menu to add "quicker" foods and advertised its menu in the Stuart News. Respondent opened for lunch and advertised its daily luncheon specials; advertised its food service when advertising its new "happy hours" and those prices; opened for breakfast after 2:00 a.m.; advertised its dinner programs; hired male dancers to perform during certain hours on Monday nights "for ladies only;" offered discount Prices for women on Tuesdays for "ladies night;" and attempted to attract an older crowd on Sundays by providing a buffet and a Dixieland band or "the big band sound." Respondent increased its radio advertising to six to eight ads a week, sometimes advertising as a restaurant with a nightclub and sometimes only as a restaurant. Although Respondent had on its premises during 1982 sufficient foods, utensils, and personnel to serve everything on its menus, Respondent started a nightly buffet which was either self-service or could be served by a waitress. The cost of the buffet depended upon the day of the week, with ladies paying a small price on Tuesdays, ladies' night, for example. Sometimes the cost of the buffet (which is collected as the customer enters the premises) included the customer's alcoholic beverages on an "all you care to consume" basis, and sometimes the customer paid for his alcoholic beverages in addition to paying for the buffet. On the evening before the formal hearing, the buffet cost $10, and the price of drinks was not included. Since Respondent opened Stage East, it has made continuing good faith efforts to encourage the purchase of food at its premises, to add the "Bennigan's" family-style restaurant, and to obtain an alternate license without the 51 percent requirement. During the three-month period immediately before the formal hearing, Respondent approached, just exceeded, and then just missed the 51-percent mark.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the charge in paragraph numbered one of the Amended Notice to Show Cause, dismissing with prejudice the charges in paragraphs numbered two and three of the Amended Notice to Show Cause, and imposing a civil penalty in the amount of $1,000 to be paid by Respondent within 30 days of the entry of the Final Order in this cause. DONE and RECOMMENDED this 17th day of February, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 17th day of February, 1984. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles L. Curtis, Esquire 1177 Northeast Third Avenue Fort Lauderdale, Florida 33316 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Is Respondent Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, required to accept Petitioner's alcoholic beverage license application, or should the application be denied for the reasons set forth in the Division's Notice of Disapproval filed December 18, 1997?
Findings Of Fact Petitioner ABC Liquors, Inc., is a Florida corporation which entered a drawing for a quota alcoholic beverage license in 1996. Respondent is the agency responsible for issuing alcoholic beverage licenses and administering and enforcing the provisions of the Beverage Law, Chapters 561-568, Florida Statutes. Petitioner entered a drawing for a new quota license in Alachua County. The drawing was held on October 13, 1996. On October 10, 1997, the Division mailed a notice of selection to Petitioner, informing Petitioner that it had been selected for the new quota license. The notice specifically informed Petitioner twice that it had 45 days from the date of the letter to file an application for the license and twice listed the date on which the application was due, November 24, 1997. The notice also indicated that failure to timely file the application would be deemed a waiver of the right to apply for the new quota license. Tom Street received the application from ABC Liquors' central office on November 18, 1997. On Monday, November 24, 1997, Mr. Street went to the City of Gainesville Planning and Zoning office to receive the local zoning approval which is required on an alcoholic beverage application. Mr. Street was told by an unidentified person that the only person who could approve the alcoholic beverage application was Lawrence Calderon, Chief of Current Planning for the City of Gainesville, and that Mr. Calderon would be out of the office until Monday, December 1, 1997. Contrary to the advice given by the unidentified city employee, Mr. Calderon was, in fact, in the office on November 24, 1997, but his availability was limited by several meetings that day. Mr. Calderon was not in the office on November 25, 1997, but he was in the office for all but three hours on November 26, 1997. He was out November 27 through November 30 for the Thanksgiving Day holiday. Nonetheless, there were two other persons in Mr. Calderon's office on November 24, that could have approved zoning on an alcoholic beverage application. The city's Code Enforcement Office also could have approved the zoning on November 24, 1997. Mr. Street did not know any of this. Thursday, November 27, 1997, was Thanksgiving Day, and the city offices were closed on November 27, 28, 29, and 30, 1997. If Petitioner had filed its application timely, but without the required zoning approval, the Division's Gainesville district office would have forwarded the application to the central licensing office in Tallahassee with a recommendation of disapproval. However, the district office recommendation is not final action; the final decision is made in Tallahassee. By December 2, 1997, Petitioner had not yet filed an application with the Division for the issuance of the new quota license. No one on Petitioner's behalf contacted the Division's Gainesville district office before December 2, 1997, to discuss deadlines or problems receiving zoning approval. On December 2, 1997, the Division notified Petitioner of its intention to deny Petitioner's entitlement to apply for the new quota license, based on Petitioner's failure to file its application within 45 days of its selection (on or before November 24, 1997). On December 18, 1997, the Division sent Petitioner its final notice of disapproval denying Petitioner's entitlement to apply for the alcoholic beverage license.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order denying Petitioner's application for the Alachua County quota alcoholic beverage license for which it was selected on October 10 ,1997. DONE AND ENTERED this 25th day of August, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 25th day of August, 1998. COPIES FURNISHED: Thomas D. Winokur, Esquire Richard Boyd, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 John F. Bennett, Esquire Fishback, Dominick, Bennett, Stepter, Ardaman, Ahlers, and Bonus 170 East Washington Street Orlando, Florida 32802-2397 Richard Boyd, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
