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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. WILBERT BARRINGTON, T/A BARRINGTON INN, 85-001949 (1985)
Division of Administrative Hearings, Florida Number: 85-001949 Latest Update: Oct. 16, 1985

Findings Of Fact At all times pertinent, Respondent, Wilbert Barrington, d/b/a Barrington Inn (Respondent), has held license number 43- 19, Series 2-COP, for the sale of beer and wine at the Barrington Inn on State Road 59, north of Lloyd, Jefferson County, Florida. Respondent's license does not authorize him to sell gin. December 2, 1984, Respondent sold two 200 ml. bottles of Seagram's Gin at his licensed premises, one to a patron and one to an undercover agent employed by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent has had three prior similar violations. Respondent denied the allegations and testified at final hearing that the Division's undercover agent was not at his licensed premises on December 2, 1984, that he did not sell any gin on December 2, 1984, and that he does not sell gin or vodka at his licensed premises.

Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended, in view of Respondent's prior violations and testimony at final hearing, that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking alcoholic beverage license number 43-19, Series 2-COP, held by Respondent, Wilbert Barrington, d/b/a Barrington Inn. RECOMMENDED this 16th day of October, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings, The Oakland Building 309 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1985. COPIES FURNISHED: Thomas A. Klein Staff Attorney Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301 Ike Anderson, Esq. P. O. Box 56 Monticello, FL 32344 Richard B. Burroughs, Jr. Secretary The Johns Building 725 S. Bronough Street Tallahassee, FL 32301 Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronorugh Street Tallahassee, FL 32301

Florida Laws (4) 561.29562.12775.082775.083
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs MAHMOUD F. MOHAMED, D/B/A KWIK STOP, 97-003819 (1997)
Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Aug. 18, 1997 Number: 97-003819 Latest Update: Feb. 03, 1998

The Issue Whether Respondent, the holder of a license to sell alcoholic beverages, sold an alcoholic beverage to a minor as alleged in the Administrative Action dated June 17, 1997, and the penalties, if any, that should be imposed.

Findings Of Fact At all times pertinent to this proceeding, Respondent, Mahmoud Mohamed, was doing business as Kwik Stop, which is a convenience store located at 1200 Broadway, Riviera Beach, Florida. Respondent holds license number 60-02476, series 2APS, which authorizes him to sell alcoholic beverages at his business location (the licensed premises). On June 13, 1997, the Division initiated a general investigation to determine whether persons under the age of 21 were being sold alcoholic beverages by licensees of the Division. As part of that general investigation, two special agents employed by the Petitioner and an investigative aide employed by the Petitioner made a random stop at the licensed premises between 8:30 p.m. and 9:00 p.m. One of the special investigative agents was Andrew Panzer, an experienced law enforcement officer. The other special agent was Agent Panzer's partner, who did not testify. The investigative aide was Casey Fand, a seventeen-year-old high school student. The special agents instructed Mr. Fand to enter the licensed premises and to attempt to purchase a beer. Mr. Fand entered the premises first, and shortly thereafter, Mr. Panzer entered the store. The other agent remained outside the premises. Mr. Fand went to the cooler, selected a 12-ounce can of Budweiser beer, and walked to the counter where Respondent was working. Mr. Panzer selected a soft drink and followed Mr. Fand to the counter. Mr. Panzer stood behind Mr. Fand and was in position to observe and hear what transpired between Mr. Fand and the Respondent. There is a dispute in the record as to what happened next. Respondent testified that when Mr. Fand came to the counter with the beer, Respondent asked him for identification. Respondent further testified that Mr. Panzer then took the beer from Mr. Fand. Respondent testified that Mr. Panzer paid for the beer and the soft drink. The testimony of Mr. Fand and Mr. Panzer conflicted with Respondent's testimony. Both Mr. Fand and Mr. Panzer testified that Respondent never asked Mr. Fand for identification and that Mr. Fand paid for the beer and left the store. They both testified that Mr. Panzer thereafter paid for the soft drink and left the store. Mr. Panzer testified that after he conferred outside with his partner and Mr. Fand, he re- entered the premises, advised Respondent of the violation, and issued him a notice to appear. In resolving the conflicts in the evidence, it is determined that the clear and convincing testimony of Mr. Fand and Mr. Panzer is more credible than that of the Respondent. In reaching this conclusion, the undersigned has considered the demeanor of the witnesses, the training and experience of Mr. Panzer, and the fact that neither Mr. Panzer nor Mr. Fand has an apparent motive to fabricate evidence. Based on the more credible testimony, it is found that on June 13, 1997, Respondent sold a beer, which is an alcoholic beverage, to a minor, Mr. Fand, without asking for identification. Respondent's license has not been previously disciplined by Petitioner.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that incorporates the findings of fact and conclusions of law contained herein. It is further recommended that the Final Order impose an administrative fine against Respondent in the amount of $1,000 and suspend his license for a period of seven days. DONE AND ENTERED this 5th day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1997. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mark R. Hanson, Esquire 415 Fifth Street West Palm Beach, Florida 33401 Captain Debbie Beck 400 North Congress Avenue, Suite 150 West Palm Beach, Florida 33401 Richard Boyd, Director 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

Florida Laws (3) 120.57561.29562.11 Florida Administrative Code (1) 61A-2.022
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. KEITH A. PETTINGILL AND SANDRA LEE CREECH, T/A EASTSIDE GROCERY, 88-001759 (1988)
Division of Administrative Hearings, Florida Number: 88-001759 Latest Update: Aug. 04, 1988

Findings Of Fact Respondents currently hold a Series 2APS license, number 45-00254, for Eastside Grocery, which is located at 132 South Highway 33, Groveland, Florida. The current term of the license expires on September 30, 1988. On February 26, 1988, Victoria Solozabal entered Eastside Grocery at about 4:25 p.m. Claude Cruce, a law enforcement investigator employed by Petitioner, entered the store directly behind her. Ms. Solozabal was acting under the direction of Mr. Cruce and another of Petitioner's investigators, Carl Lloyd, in assisting them in the detection of sales of alcoholic beverages to underaged persons. Ms. Solozabal was born on August 23, 1969. Upon entering the store, she carried with her only her driver's license and a small amount of cash for the purchase of a single can of beer. Ms. Solozabal went directly to an electric cooler in the back of the store, selected a chilled can of Budweiser beer, and took it to the checkout counter. With Mr. Cruce directly behind her and Mr. Lloyd only a few feet away watching, Ms. Solozabal placed the beer on the checkout counter and took out a $10 bill while Respondent Sandra Pettingill was ringing up the purchase. Ms. Pettingill demanded 75 cents, and Ms. Solozabal gave her the $10 bill. Ms. Pettingill placed the bill in the cash register and returned the change to Ms. Solozabal. At no time did Ms. Solozabal or any other employee of Eastside Grocery ask Ms. Solozabal her age or for proof of age. As Ms. Solozabal approached the door to leave the store, Mr. Cruce stopped her, demanded her identification, and seized the beer. He and Mr. Lloyd then informed Ms. Pettingill that she had sold an alcoholic beverage to an underaged person.

Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondents guilty of selling an alcoholic beverage to a person under the age of 21 years and imposing a civil penalty in the amount of $250. DONE and RECOMMENDED this 4th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 4th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1759 Treatment Accorded Petitioner's Proposed Finding of Facts Adopted. Adopted in substance. Adopted. Rejected as subordinate. 5-6. Adopted. Second 6. Rejected as irrelevant. Adopted. First sentence adopted. Remainder rejected as subordinate. Adopted. Rejected as subordinate. Treatment Accorded Respondents' Proposed Findings of Fact 1-3. Adopted, except any resemblance between Ms. Solozabal and a regular customer of legal age is rejected as irrelevant. 4-5. Rejected as irrelevant. Ms. Pettingill testified that her normal procedure was to check proof of age before ringing up a sale. She also testified that Mr. Cruce asked about the couch drops only after she had taken the $10 bill from Ms. Solozabal. Mr. Cruce's request for cough drops thus had nothing to do with the sale, which had already been made. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 George Kelley, Esquire 368 East Main Street Post Office Box 1132 Apopka, Florida 32703 Van B. Poole Secretary Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 Joseph Sole General Counsel Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 =================================================================

Florida Laws (4) 120.57120.68561.29562.11
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DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, vs GEORGE LOPEZ, D/B/A SMILEY`S, 01-001306 (2001)
Division of Administrative Hearings, Florida Filed:Daytona Beach, Florida Apr. 05, 2001 Number: 01-001306 Latest Update: Sep. 10, 2001

The Issue Whether Respondent's plea of nolo contendere to the crime of possession of a controlled substance (for which adjudication was withheld) is sufficient to support the imposition of discipline with regard to his alcoholic beverage license.

Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to issue beverage licenses pursuant to Chapter 561, Florida Statutes, and applicable rules. Prior to September 11, 2000, Respondent, doing business as Smiley's, was the owner and holder of a beverage license, DBPR License No. 74-05336, Series 2-COP, which permits him to sell beer and wine for consumption on premises. On October 9, 1998, Respondent was charged by information with sale and delivery of cocaine. He was acquitted of that charge on May 12, 2000. Subsequently in a separate incident, Respondent was charged with possession of cocaine and on September 11, 2000, pleaded no contest to that charge. Pursuant to Respondent's timely request for formal proceedings, Petitioner's counsel initiated discovery in the course of this administrative proceeding through a Request for Admissions to which Respondent failed to respond. Respondent failed to provide a satisfactory explanation for this circumstance and, upon motion of Petitioner, the Request for Admissions was deemed admitted. Those admissions establish that Respondent entered a no contest plea on September 11, 2000, to the charge of possession of cocaine and that the plea bargain negotiated at that time also included two days' incarceration. Additionally, the admissions establish that Respondent is aware that possession of cocaine is a crime punishable by imprisonment for a term of five years. Respondent's own testimony is uncorroborated by other direct evidence and fails to establish that he possesses good moral character.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's alcoholic beverage license, DBPR License No. 74-05336, Series 2-COP. DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. DON W. 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2001. COPIES FURNISHED: Paul Kwilecki, Jr., Esquire 629 North Peninsula Drive Daytona Beach, Florida 32118 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Lt. John P. Szabo Department of Business and Professional Regulation 400 West Robinson Street, Room 709 Orlando, Florida 32801 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202

Florida Laws (2) 120.57561.15 Florida Administrative Code (1) 61A-1.017
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. SAUNDRA MORENE, T/A AGEL GROCERY, 81-001822 (1981)
Division of Administrative Hearings, Florida Number: 81-001822 Latest Update: Aug. 07, 1981

Findings Of Fact Respondent is the holder of Beverage License No. 26-751 permitting the sale of alcoholic beverages from her store at 1155 Jessie Street, Jacksonville, Florida. This business is a convenience store known as Agel Grocery. Respondent's husband has been co-owner of this business since the outset, and participates in its operation and management. When the Morenes applied for an alcoholic beverage license in June, 1980, they believed Frank Morene was ineligible and intentionally omitted his name from the application.

Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is That Respondent be found guilty of filing an incorrect application in violation of Subsection 561.17(1), Florida Statutes (1979). It is further RECOMMENDED: That Respondent's Alcoholic Beverage License No. 26-751 be suspended until Respondent files and secures approval of a correct application or demonstrates that any direct or indirect interest of Frank Morene in the licensed business has been removed. DONE and ENTERED this 7th of August, 1981, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mrs. Saundra Morene c/o Agel Grocery 1155 Jessie Street Jacksonville, Florida 32206

Florida Laws (1) 561.17
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs EDWARD ANDRE JONES, T/A S AND D FOOD MARKET, 92-004069 (1992)
Division of Administrative Hearings, Florida Filed:Melbourne, Florida Jul. 07, 1992 Number: 92-004069 Latest Update: Aug. 28, 1996

The Issue The issue for consideration in this matter is whether the Respondent's 1 APS license 15-00386 should be disciplined because of the matters alleged in the Notice to Show Cause filed herein.

Findings Of Fact At all times pertinent to the allegations in issue here, the Division was the state agency responsible for the licensing of the sale of alcohol and alcoholic beverages in Florida. Respondent operated the S & D Food Market at 531 Blake Avenue, Cocoa. On August 27, 1991, SA Wylie, a member of the Division's Orlando office, was, along with several other Special Agents, including SA Felton, assisting the Florida Department of Law Enforcement to serve search warrants and search covered premises, including that of the Respondent. When he arrived at the Respondent's facility he asked the clerk on duty to show him the alcoholic beverage license for the store and determined it permitted only the sale of packaged beer for off-premises consumption. He conducted an inspection of the store to insure only beer was being sold in compliance with the license and discovered several bottles of wine in the cooler along with wine cooler and beer. These items were in the display section open to the public. Mr. Wylie went around back into the cooler and found more wine, and when he went into the store's back storage room, found cases of wine stacked up against the wall. When he saw this, he went back to the clerk and asked why wine was being sold when the license permitted only the sale of beer. The clerk claimed to know nothing about it. Wylie asked for the invoices for the wine purchases and the clerk went to get them. While waiting in the office, Mr. Wylie also saw several cartons of cigarettes which showed a Publix stamp on the end. The presence of these stamps on the cartons indicated to him that the cigarettes had been purchased at Publix and not from a wholesale distributor. He assumed the cigarettes were for resale, though all other cigarettes in the store were in the display rack out front. These cigarettes were legal. When the clerk came back with the invoices, Wylie also asked him for the purchase receipt for the cigarettes and the clerk went to get that, too. In the meantime, SA Felton arrived on the scene and Wylie turned over all the wine and the cartons of cigarettes to her. Felton inventoried the wine and determined there were in excess of 76 full cases of wine in addition to numerous loose bottles.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered in this case dismissing the allegation that Respondent, Edward Andre Jones, possessed cigarettes not purchased from a wholesale dealer, but finging him Guilty of the allegation of possessing unauthorized alcoholic beverages on the premises covered by 1 APS license 15- 00386; placing his license on probation for one year, and assessing an administrative fine of $1,000.00. RECOMMENDED in Tallahassee, Florida this 27th day of January, 1993. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1993. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Lane Vaughn, Esquire 2007 South Melbourne Court Melbourne, Florida 32901 Janet E. Ferris Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007

Florida Laws (3) 120.57210.15562.02
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. LA COPA SUPERMARKET, INC., D/B/A LA COPA SUPERMARKET, 87-000100 (1987)
Division of Administrative Hearings, Florida Number: 87-000100 Latest Update: Mar. 17, 1987

Findings Of Fact At all times material hereto Respondent, La Copa Supermarket, Inc., d/b/a La Copa Supermarket, held alcoholic beverage license number 23-1995, series 2APS, for the premises located at 3940 East 4th Avenue, Hialeah, Florida. On January 9, 1986, Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT), following a complaint of sales to underaged persons, began an investigation at the licensed premises. On that date, underaged volunteer, Scott Laurence Spayd (Spayd), date of birth June 5, 1968, entered the licensed premises under the supervision of DABT Investigator, Carol Houston. Spayd purchased a six-pack of Busch beer from Respondent's sales clerk, Alicia Hernandez, without any request for identification or inquiry concerning his age. By notice dated January 13, 1986, DABT advised Respondent of the arrest of Ms. Hernandez for the foregoing sale of alcoholic beverages to an underaged person. The notice also advised Respondent that future violations could result in charges being filed against its license. /1 On February 4, 1986, underaged volunteer, James Jenkins (Jenkins), date of birth April 4, 1969, entered the licensed premises under the supervision of DABT Investigator, Hector Garcia. Jenkins purchased a can of Schaeffer beer from Respondent's sales clerk, Yolanda Martinez, without any request for identification or inquiry concerning his age. By letter dated February 6, 1986, DABT advised Respondent of the arrest of Ms. Martinez for the foregoing sale of alcoholic beverages to an underaged person. The letter further provided: . . . Since this is our final warning to you, we would strongly urge you to personally ad- dress this problem. If you, your agents, ser- vants, or employees violate FSS 562.11 again, we will file a Notice to Show Cause, which will include past violations as well as any future violations, at which time your license will be subject to formal revocation or suspension proceedings. On July 29, 1986, underaged volunteer, Jeraldine Cutler (Cutler), date of birth April 28, 1968, entered the licensed promises under the supervision of DABT Investigator, Ralph Campbell. Cutler purchased a four-pack of Champale Cooler, an alcoholic beverage, from Respondent's sales clerk, Maria Mena, without any request for identification or inquiry concerning her age. Respondent does not dispute the sale of alcoholic beverages to underaged persons as detailed in the preceding paragraphs. Rather, Respondent contends that it has acted reasonably to curb such sales by posting signs near the cash register which state that it is unlawful to sell alcoholic beverages to under aged persons and by instructing its personnel to demand identification from youthful appearing persons. According to Respondent, its clerks are instructed to check the date of birth appearing on the patron's drivers license to insure they are 21 years of age. In the instant case, each sales clerk averred that the underaged volunteer to whom she sold alcoholic beverages appeared to be of legal age. The clerks' testimony is not, however, credible. None of the underaged volunteers appeared to be of legal age, and no ordinary prudent person could have concluded otherwise. Their youthful appearances, which were obvious at the hearing held over one year after the sales, were such that identification should have been checked. This conclusion is buttressed by the reaction of other licensees when faced with a request to purchase alcoholic beverages from the same volunteers. Spayd has been used by DABT in approximately 100 investigations and was refused service approximately 75 percent of the time. Jenkins has been used 26 times and has been refused service 20 times. Cutler has been used approximately 60 times and has been refused service approximately 50 percent of the time. In addition to averring that Cutler appeared to be 21 years of age at the time of the sale, Ms. Mena also averred that she was not aware at the time that Champale Cooler was an alcoholic beverage. Such assertion does nothing to bolster Respondent's defense since, if true, it demonstrates a basic failing in Respondent's efforts to prevent the sale of alcoholic beverages to underaged persons. DABT's policy and procedure manual establishes a penalty guideline for cases of this nature. Where, as here, three sales of alcoholic beverages to underaged persons have occurred, and the licensee has been given written notice after the first and second offense, the prescribed penalty is a $1,000 civil penalty and a 20 day suspension of the license.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered imposing a civil penalty of $1,000 against Respondent, and suspending Respondent's alcoholic beverage license for a period of 20 days. DONE AND ORDERED this 17th day of March, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 March, 1987.

Florida Laws (2) 561.29562.11
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R. J. MANDELL CORPORATION, D/B/A FOXXY LAIDY vs. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, 82-000525 (1982)
Division of Administrative Hearings, Florida Number: 82-000525 Latest Update: Jul. 28, 1982

The Issue Whether petitioner's application for transfer of an alcoholic beverage license should be granted, or denied on the ground that there is a pending disciplinary action against the license holder.

Findings Of Fact Timeliness of DABT's Denial of Application for Transfer On May 26, 1981, petitioner filed with DABT's Miami office an application for transfer of alcoholic beverage license No. 23-276, Series 4-COP. (Testimony of Harris, Caram; Ex. 1.) Upon discovering that the fingerprints of Richard J. Mandell, chief corporate officer of petitioner, were not on file and did not accompany the application, DABT notified Mr. Mandell, no later than June 24, 1981, that his fingerprints would be required. 2/ (Testimony of Harris, Caram.) In response, Mr. Mandell furnished the requested fingerprints to DABT on June 24, 1981. At that time, DABT treated the license application as complete. (Testimony of Harris, Caram.) By letter dated September 22, 1981, DABT notified petitioner that its application was disapproved because of a pending administrative case against the license. (Ex. 2A.) II. Denial of Petitioner's Application When petitioner filed its application for transfer of the alcoholic beverage license in question, administrative proceedings to revoke or suspend the license had been instituted and were pending against the licensee, Astral Liquors, Inc., d/b/a "Foxxy Laidy," a bar and lounge. (Prehearing Stipulation.) These disciplinary proceedings were instituted because of the conviction of Eugene Willner--Astral Liquors, Inc.`s sole stockholder--of a federal felony unrelated to operation of the Foxxy Laidy bar and lounge. (Testimony of Willner.) By written contract dated April 10, 1981, petitioner agreed to purchase from Astral Liquors, Inc., the Foxxy Laidy, located at 6507 Southwest 40th Street, Miami, Florida, for $175,000. Closing was contingent upon DABT approving transfer of the alcoholic license to petitioner. (Ex. 3.) DABT disapproved petitioner's application to transfer the license solely on the ground that there were pending proceedings against the license holder. DABT does not question whether the sale of Foxxy Laidy to petitioner is a bone fide, arms-length transaction or the qualifications of petitioner to hold an alcoholic beverage license. (Testimony of Harris; Ex. 2A, Ex. 8, Ex. 9.) DABT presented no evidence in support of denying petitioner's application other than there were pending administrative proceedings against the licensee. It did not explain or offer any reasons why, in this case, it should exercise its discretion by denying petitioner's application. To the extent its decision rests on non-rule policy considerations, it did not explicate them or subject them to scrutiny at hearing.

Recommendation Based on the foregoing, it is RECOMMENDED: That the application for transfer of alcoholic beverage license No. 23-276, Series 4-COP, be granted. DONE AND RECOMMENDED this 9th day of June, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1982.

Florida Laws (7) 120.57120.60120.68561.17561.19561.32561.65
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs EUGENE AND JOAN FERRETTI, T/A GINO'S BEER AND WINE, 89-006166 (1989)
Division of Administrative Hearings, Florida Filed:Daytona Beach, Florida Nov. 13, 1989 Number: 89-006166 Latest Update: Apr. 20, 1990

The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of the violations alleged in the Notice To Show Cause issued September 22, 1989 by the Director, Division of Alcoholic Beverages and Tobacco, Department of Business Regulation.

Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, the Respondents, Eugene and Joan Ferretti, d/b/a Gino's Beer and Wine (Gino's) held a Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) alcoholic beverage license for the premises known as Gino's located at 2012 South Atlantic Avenue, Daytona Beach Shores, Volusia County, Florida, license number 74-01399, series 2-APS Eugene and Joan Ferretti are co-licensees for Gino'. The Respondents stipulated that Gina Ferretti, employee and daughter of Eugene and Joan Ferretti, did on July 13, 1988 sell one 12 ounce can of Budweiser Light Beer, an alcoholic beverage, to a person under the age of 21 years and on October 21, 1988 did sell one 8 ounce can of Budweiser Beer, an alcoholic beverage, to a person under the age of 21 years, both sales being in violation of Section 562.11(1)(a), Florida Statutes. On July 18, 1988 the Division gave the licensees Official Notice of the July 13, 1988 violation and advised the licensees that if a similar violation occurred in the future the licensees could be charged with the current violation along with any future violations. On October 24, 1988 the Division advised the licensees of the October 21, 1988 violation and that this was a final warning before issuance of a Notice To Show Cause in the event of another violation which could subject the license to revocation or suspension. Since the two incidents in which she was involved occurred, Gina Ferretti has had training concerning the sale of an alcoholic beverage to persons believed to be under the age of 21 years, and has not been involved in any other violations since October 21, 1988. Because Eugene Ferretti works in construction it is necessary for Gina Ferretti to help in running Gino's and, therefore, Gina Ferretti stills works in Gino's. At all times material to this proceeding, Ms. Tina D. May worked with the law enforcement investigators of the Division in the Daytona Beach, Florida area as an underage operative to assist in determining whether licensed establishments were selling alcoholic beverages within their licensed premises to persons under the age of 21 years. Ms. May was instructed by the Division, as all underage operatives are, not to dress or act in such a fashion that is designed to entice the licensee to sell her alcoholic beverages without checking her identification to confirm her age or in any way lie about her age or use a false identification. Ms. May considered her work with the Division as a public service because her husband was killed in a alcohol related vehicular accident. On March 11, 1989 Ms. May, then 20 years and 7 months of age, entered the licensed premises of the Respondent under the supervision of Ronald P. Sullivan, Investigator for the Division. Ms. May was casually dressed, wearing a white T-shirt with logo and blue jeans; her hair was brushed straight downward, and she wore no makeup. On March 11, 1989 Ms. May's appearance resembled that of a working person rather than that of a student on spring break. After entering Gino's, Ms. May proceeded to purchase a 12 ounce can of Budweiser Light Beer, an alcoholic beverage. Eugene Ferretti was on duty at the time, and asked Ms. May if she was "21". Instead of responding that she was not "21", Ms. May handed Ferretti her Florida's driver's license with a yellow background indicating that the person identified in the license was under the age of 21 years when the license was issued. Ms. May's lack of a verbal response to Ferretti's question concerning her age was contrary to instructions given by Ronald Sullivan, to be "up front" about her age. The implication of Ms. May producing her driver's license in response to a question concerning her age, coupled with her appearance, led Ferretti to believe that she was "21", and resulted in Ferretti being less diligent than he should have been in reviewing Ms. May's driver's license. Due to Ferretti's lack of diligence he misread the 08 in May's birth date of 08/04/68 as an 03 and determined her birth date to be 03/04/68 rather than 08/04/68. Thinking she had just turned "21" on March 4, 1988, Ferretti sold Ms. May, a person under the age of 21 years, a 12 ounce can of Budweiser Light Beer, an alcoholic beverage. Ms. May had never purchased or attempted to purchase an alcoholic beverage in Gino's before the time of this offense. Ronald P. Sullivan was at the door of Gino's when Ms. May purchased the beer, but was unable to hear the conversation between Ferretti and Ms. May. Upon completing the purchase of the 12 ounce can of Budweiser Light Beer from Ferretti, Ms. May handed the beer to Sullivan who impounded it. Ferretti does not dispute the sale of the beer on March 11, 1989 to Ms. May, and allowed it to be introduced into evidence without objection. The conversations between the Division's operative and Gina Ferretti during the sales on July 13, 1988 and October 21, 1988 were taped, which is the usual procedure so as to rebut any conflicting testimony concerning a conversations between the Division's operative and the person making the sale. However, the conversation at the time of the sale between Ferretti and Ms. May on March 11, 1989 was not taped.

Recommendation In making the following recommendation I am mindful of the Division's "guidelines" of imposing an administrative fine of $1,000.00 and a 20-day suspension of the license for the first offense of violating Section 562.11(1)(a), Florida Statutes, (selling an alcoholic beverage to a person under the age of 21 years) regardless of the circumstances surrounding the violation, which appear to conclusively presume that the penalty should be the same regardless of the facts and circumstances surrounding the violation without any consideration being given to mitigating circumstances, if any. Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding the violations, it is, therefore, RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of violating Section 562.11(1)(a), Florida Statutes, and for such violations, considering the circumstances surrounding the violations, assess a civil penalty of $250.00 for each of the violations for a total civil penalty of $750.00. DONE AND ENTERED this 20th day of April, 1990, in Tallahassee, Leon County, 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 20th day of April, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6166 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Findings of Fact 8, 9 and 11, except the last sentence which is rejected since the label on the can of beer does not indicate the alcohol content. However, the can of beer does have the word Florida? on its lid and bares the trademark "Anheuser-Busch" which is prima facie evidence of it being an alcoholic beverage as defined in Section 561.01(4)(a), Florida Statutes which was not rebutted. See Section 562.47(2), Florida Statutes. Adopted in Finding of Fact 10. Adopted in Finding of Fact 9, as modified. Adopted in Findings of Fact 8 and 11. Adopted in Findings of Fact 8 through 11. Adopted in Findings of Fact 3 through 6, as modified. Not necessary to the conclusion reached in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Adopted in Finding of Facts 1 and 2, respectively. 3. Adopted in Finding of Fact 7, but modified. 4.-8. Adopted in Findings of Fact 4, 5, 8, 9 and 11. 9.-10. These are restatements of testimony and not findings of fact, but see Finding of Fact 9. 11. Adopted in Finding of Fact 9. 12.-16. These are restatements of testimony and not findings of fact, but see Findings of Fact 8 and 9. 17.-18. Not material to the conclusion reached in this Recommended Order. 19. Adopted in Finding of Fact 12. COPIES FURNISHED: 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 32399-1007 Emily Moore, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 French Davis, Esquire 2762 South Peninsular Daytona Beach, Florida 32118

Florida Laws (5) 120.57561.01561.29562.11562.47
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. CLUB 40 AND MARGARET P. MUSE, 77-002035 (1977)
Division of Administrative Hearings, Florida Number: 77-002035 Latest Update: Jan. 10, 1978

The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of s. 562.12, Florida Statutes, pursuant to s. 561.29(1)(b), F.S., as set forth in Notice to Show Cause issued by Petitioner on March 28, 1977. The hearing in this case was scheduled for 9:00 A.M. on December 8, 1977 at Petitioner's business address in Tallahassee, Florida. Notice of Hearing was sent to the Respondent on November 21, 1977 by mail. The notice of hearing was not returned by the Post Office as being undelivered. Neither the Respondent nor any representative in her behalf appeared at the hearing. Accordingly, the Hearing Officer advised counsel for the Petitioner that the matter would be conducted as an uncontested proceeding.

Findings Of Fact The Respondent Margaret P. Muse operates Club 40 located at Midway, Florida, and is authorized to sell beer and wine for consumption on the premises incident to a Class 2-COP license issued by the Petitioner. On August 15, 1976 at approximately 12:05 P.M., Gary Sams, a beverage officer with the Tallahassee field office of the Petitioner, accompanied by a reliable informant, went to the vicinity of Respondent's licensed premises. There, Sams searched the informant and found that he possessed no alcoholic beverages or currency. Sams gave the informant $5.00 and told him to go to the residence immediately east of the licensed premises. The informant entered the house, remained approximately 5 minutes and returned to Sams with a one-half pint unsealed bottle of Calverts Extra whiskey and a twelve-ounce sealed can of Schlitz beer in his possession. The informant told Sams that he had purchased the liquor from one Lou Ethel Palmer for $2.75 and that she had obtained it from a room in the house. Sams and the informant initialed the containers and Sams took them to the evidence room of his agency where they remained until the date of the hearing (testimony of Sams, Petitioner's Exhibit 1). On August 22, 1976 at approximately 10:30 P.M., Sams returned to the premises with the same informant, and followed the same procedures as to a prior search of his person and directions to enter the residence again. Sams observed the informant do so where he remained for a period of time and then returned to Sams outside and turned over a one-half pint unsealed bottle of Calverts Extra whiskey. The informant stated that while in the residence, he had ordered the whiskey from Palmer, but that another female in the house had gone outside to obtain the whiskey. When she returned with it, the informant paid her $2.75 for the same. By the informant's description of the female who had sold the whiskey to him, Sams determined that she was the Respondent Margaret P. Muse. The two men initialed the container and Sams placed it in the evidence room of his agency where it remained until the date of this hearing (testimony of Sams, Petitioner's Exhibit 2) On August 23, 1976, warrants authorizing search of the Palmer residence were obtained by Petitioner. On August 29, Sams and deputy sheriffs of Gadsden County proceeded to the residence in question where they were admitted by Muse. Arrest warrants were served on Muse and Palmer and the premises were searched. In the bedroom several half pints of vodka and whiskey were found and seized. Two cases of 12-ounce cans of Schlitz beer were found in an outbuilding adjacent to the house and also seized. Muse stated at the time that the beer was being stored in the outbuilding for the purposes of sale at the licensed premises (testimony of Sams).

Recommendation That the charge against Respondent, Margaret P. Muse, be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida Mrs. Margaret P. Muse P.O. Box 116 Midway, Florida 32343 PETITIONER'S EXHIBIT 1 One half-pint bottle labeled "Calvert Extra" (half full of liquid) One sealed can (12 ounce) Schlitz beer PETITIONER'S EXHIBIT 2 One full unsealed half-pint bottle labeled "Calvert Extra"

Florida Laws (2) 561.29562.12
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