Findings Of Fact Respondent currently holds alcoholic beverage license number 69-007441, series 2COP, for the licensed premises known as Javis Pub located at 600 North Highway 17-92, Longwood, Seminole County, Florida. At all material times, Jose Javier Zudaire (Javi) was the sole owner and officer of Respondent. At all material times, a person known only by the name of John was employed by Respondent as a bartender. On April 7, 1988, Sandra D. Owens, who was employed by the Seminole County Narcotic Unit, entered Javis Pub in an undercover capacity with a confidential informant who had advised the law enforcement authorities that illicit drugs were being sold in the bar. At the time, the informant was negotiating with Javi for the purchase of the bar. The informant introduced Ms. Owens to Javi. In the ensuing conversation, Javi told Ms. Owens that he had not gotten home until 7:00 a.m. that day because he had been out taking cocaine the prior evening. Ms. Owens complained that cocaine was hard to come by. Javi began to discuss the quality of the cocaine that he could obtain and the prices for which he could obtain it. Javi then offered to get Ms. Owens a free sample of his cocaine, but she stated that she would rather purchase it. They then agreed that she would return the next evening and purchase 1/8 ounce for $200 from John, who was the bartender. When Ms. Owens returned the next evening, John was not there. Javi and Ms. Owens began conversing. After a short time, Javi picked up a pack of cigarettes that Ms. Owens had laid down on the bar, emptied it of most of the cigarettes, took the pack into a back room behind the bar, and returned with the pack, into which he had placed 1/8 ounce of cocaine. Javi then placed the pack in front of Ms. Owens, who placed two one-hundred dollar bills under a nearby ashtray. Javi completed the transaction by taking the two bills. Before Ms. Owens left the bar, Javi assured her that she would like the cocaine. She left the bar, but returned later in the evening to thank Javi and tell him that she would be leaving town for a week or so. During the next couple of weeks, Ms. Owens spoke by telephone with Javi and John about seven times. Although she in fact had remained in town, she told them that she was visiting friends in Houston and gave them a telephone number in Houston to call her. Through an arrangement with the Houston police department, they took the calls on a private line and forwarded all messages to Ms. Owens. On the evening of April 21, 1988, Ms. Owens returned to the bar. She met with John, who told her that he would sell her an ounce of cocaine if she returned to the bar at midnight. Ms. Owens returned to the bar at 11:55 p.m. on April 21. John was waiting outside for her. Together, they entered the bar where they were joined by Javi. Javi asked John if he was going to take care of Ms. Owens. Javi then left the bar and John went to the back room behind the bar and returned with a white envelope containing cocaine. He removed the envelope from a back pocket and Ms. Owens asked him if he wanted to complete the transaction out in the open. He told her not to worry about "my people." While seated at the bar in good lighting with other persons present, Ms. Owens counted out, onto the surface of the bar, the $1300 cash that they had agreed upon and John gave her the cocaine. Shortly after purchasing the cocaine, Javi returned to the bar, asked Ms. Owens if John had taken care of her, and assured her that she would like the cocaine. Petitioner's policy calls for the revocation of an alcoholic beverage license whenever illegal drug sales repeatedly take place in the licensed premises, the premises are declared a public nuisance, and the premises are a place of dealing, storing, selling, or using illegal drugs; the licensee sells a controlled substance one or more times; or an employee makes three or more sales of a controlled substance on the licensed premises and in an open manner so as to indicate culpable negligence on the part of the licensee in the management of the premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 561.29(1)(a) and (c) Florida Statutes, and revoking the subject alcoholic beverages license. DONE and RECOMMENDED this 17th day of October, 1988, in Tallahassee, Florida ROBERT E. MEALE 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 October, 1987. APPENDIX TO RECOMMENDED ORDER Treatment Accorded Petitioner's Proposed Findings 1-2. Adopted. 3. First and last sentences adopted. Remainder rejected as unsupported by the evidence. 4-6 . Adopted. 7. Rejected as legal argument. 8-12. Adopted. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Richard A. Colgrove, Esquire Firm of Thomas C. Greene, Esquire 212 North Park Avenue Post Office Box 695 Sanford, Florida 32772-0693 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice To Show Cause and Administrative Actions filed in each of these consolidated causes and, if so, what disciplinary action should be taken, if any.
Findings Of Fact In May of 1992 Petitioner received an application for the transfer of an alcoholic beverage license, license number 60-05383. That license is a series 2-COP license, authorizing the limited sale and possession of alcoholic beverages, only beer and wine, on the premises. The application requested the transfer of the license to Samul Luc and Erick Martial d/b/a Universal Restaurant, 700 Datura Street, West Palm Beach, Palm Beach County, Florida. That application was denied because Martial had a disqualifying narcotics conviction of March 16, 1989. Luc and Martial were notified of that disapproval by letter dated November 4, 1992. Thereafter, Martial and Luc met with Captain Deborah Gray, the district supervisor of Petitioner's West Palm Beach office. She specifically advised Luc and Martial that Martial could have no financial interest at all in the business and could not be listed on the license or even in the lease of the licensed premises. She advised them that Martial could only be a salaried employee. In December 1992, Luc filed a sworn application for that license. This time, the applicant was listed as Samul Luc d/b/a Universal Restaurant, 700 Datura Street. Only Luc's name appeared in that application, and no other person was listed as having an interest in the business. In particular, Martial was not listed as an applicant or as someone having an interest in Universal Restaurant. Respondent paid the $100.00 fee for a temporary license with a check drawn on the First Union National Bank of Florida. The face of the check indicated that the account holder was Erick Martial d/b/a Universal Restaurant. Thereafter, whenever a problem arose regarding Universal Restaurant, it was always Erick Martial who came in to see Captain Gray. Captain Gray met with Erick Martial three or four times. The only meeting attended by Luc was the first meeting with Captain Gray at which she explained to both Martial and Luc that Martial could have no financial interest in the business. Accordingly, Captain Gray opened an investigation to ascertain if Martial did have an interest in Universal Restaurant, the licensed premises. The checking account used by Respondent to pay for his temporary license was opened on June 3, 1992, under the names of Samul Luc and Erick Martial d/b/a Universal Restaurant. The account's signature card was updated on August 18, 1993, and thereafter continued to include the names and signatures of Samul Luc and Erick Martial. That account has remained open and active through the time of the final hearing in this cause. On January 27, 1993, Special Agent Charlene Self went to the licensed premises to investigate the possible undisclosed interest of Martial. Luc was not present. Self asked to speak to the person in charge, and Martial said that he was that person. He further advised her that he was Luc's partner in the business. Self told him that he was not qualified to be a partner in the business, and Martial said that he was not aware of that. On August 3, 1993, Special Agent James Griffin went to the licensed premises to conduct an inspection. In the course of his inspection, he discovered and seized a partially-full bottle of vodka from behind the bar. The label on the bottle clearly identified the bottle as containing vodka, a distilled spirit, and Griffin's examination verified that the bottle contained vodka, a beverage not permitted to be sold or possessed under a 2-COP series license. Martial came in and identified himself to Griffin as a co-owner of the establishment. Martial told Griffin that the bottle of vodka was his personal bottle and that he knew that the beverage license of Universal Restaurant was for beer and wine only. Griffin returned to the premises on August 25, 1993, at the request of the West Palm Beach Police Department after being advised that Police Officer Tureaud had discovered a bottle of whiskey at the licensed premises. In the course of Griffin's inspection, he discovered and seized a three-quarters full bottle of Haitian rum. The label on the bottle clearly identified the bottle as containing rum, a distilled spirit, and Griffin's examination verified that the bottle contained Haitian rum, a beverage not permitted to be sold or possessed under a 2-COP series license. During that inspection, Martial came in and again identified himself as a co-owner of the restaurant. In response to Griffin's inquiries regarding the presence of the Haitian rum, Martial stated that the rum was used in cooking. Griffin then asked to see the restaurant's menus to see which food items called for rum in the cooking process, but Martial advised him that there were no menus listing food items that included rum as an ingredient.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Revoking Respondent's alcoholic beverage license number 60-05383, Series 2-COP, and Assessing against Respondent a civil penalty in the amount of $3,000.00 to be paid by a date certain. DONE AND ENTERED this 31st day of May 1994 in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 31st day of May 1994. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mr. Samul Luc Universal Restaurant 700 Datura Street West Palm Beach, Florida 33401 John J. Harris, Acting Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondents, J. F. Walthier III and Andrew Erickson, are the holders of a current valid beverage license, No. 46-00210, Series 2-APS, held in the name of Walthier, J. F. III and Ericks. This license is for a premises located at 4721 Palm Beach Boulevard, Fort Myers, Lee County, Florida. The Respondents conduct their business at this licensed premises under the name Foam and Fizz. This beverage license series entitled the Respondents to sell a class of alcoholic beverage for consumption off the licensed premises. One of the categories of alcoholic beverages allowed for sale under the terms and conditions of the license is beer. The subject beverage license was issued by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. The Petitioner is charged with the licensure and regulation of the several alcoholic beverage license holders within the State of Florida. In pursuit of its function, the Petitioner has brought an Administrative Complaint/Notice to Show Cause against the named Respondents and the terms and conditions of that complaint may be found in the issue statement of this Recommended Order. The facts in this case reveal that between 9:00 p.m. and 10:00 p.m. on January 25, 1980, three young men under the age of eighteen drove to the licensed premises for purposes of purchasing beer. Once the car was parked, Ira J. Frasure and dames Craig McDowell exited the car. On that date, Ira J. Frasure was seventeen years of age and James Craig McDowell was sixteen years of age. They left Frank Edward Gordon in the automobile, where he would remain during the pendency of the other juveniles' activities in the licensed premises. Once in the store, Frasure retrieved a six-pack of Budweizer beer and McDowell picked up several single cans of Budweizer beer. The beer which had been picked up by the juveniles was presented at the checkout counter to Barbara Joyce Walthier, the wife of one of the licensees and an employee in the licensed premises. At that point, Frasure paid Walthier for the beer from money which he had and money which had been given to him by McDowell. The juveniles then left the store. Neither of the juveniles had been asked for any form of identification prior to the sale of the alcoholic beverages, nor had they been asked about their ages, and they did not make any comment concerning their ages. Frasure's date of birth is September 30, 1962, and at the time of the purchase he was approximately six feet one inch tall and had a mustache. Frasure gave testimony in the course of the hearing and appeared to be eighteen years of age or older at that time. Investigative officers who saw Frasure on January 25, 1980, said they felt he appeared to be less than eighteen years of age. McDowell's date of birth is February 9, 1963, and at the time of the hearing he appeared to be less than eighteen years of age, and this comported with the impression of the investigating officers when they saw him on January 25, 1980. At the time Frasure purchased the beer from the clerk, Barbara Joyce Walthier, she was not busy with other customers to the extent that it would hinder her ability to check the appearance of Frasure and McDowell; however, business on the evening in question had been moderate to heavy at times and she does not remember seeing Frasure and McDowell. Barbara Joyce Walthier was working in accordance with a set of instructions from the licensees, in the person of her husband, to the effect that she should always require written identification prior to purchase from those persons who looked like they should be "carded". Moreover, she had been instructed that those persons who have beards are not normally "carded". Other factors to be considered, per instruction she had been given, were to require written identification from those persons who acted suspiciously while in the store, or who parked a great distance away from the store after driving slowly by. In keeping with these instructions, she routinely requires written identification from patrons. Finally, there was a sign in the licensed premises which stated, "Under age don't ask".
Recommendation In view of the fact that this is a single count violation and in view of the physical appearance of Ira J. Frasure at the time of the alcoholic beverage purchase in question, that appearance leading one to believe that he was eighteen years of age or more, it is RECOMMENDED that the Respondents be required to pay a fine in the amount of one hundred fifty dollars ($150.00) in lieu of suspension or revocation and it is FURTHER RECOMMENDED that if this civil penalty is not paid within thirty (30) days of the rendition of the final order, that the Respondents' beverage license be suspended for a period of fifteen (15) days. DONE AND ENTERED this 20th day of May, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee Florida 32301 (904) 488-9675 COPIES FURNISHED: James N. Watson, Esquire Office of General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Allan Parvey, Esquire 2201 Main Street Post Office Box 2366 Fort Myers, Florida 33902
The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of the violation alleged in the Notice To Show Cause issued October 20, 1989 by the Director of the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation and filed herein.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this case, OB's Restaurant and Lounge, Inc. held a Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) license for the premises known as OB's Restaurant and Lounge (OB's), alcoholic beverage license number 74-2421 SRX, Series 4-COP, located at 913 Highway 17, Pierson, Volusia County, Florida. Christine Shuter O'Brien, president of OB's Restaurant and Lounge, Inc. owns 100 per cent of the stock in the corporation. Ms. O'Brien has owned and operated OB's since July 1989. Camiel Long, born July 3, 1969, who was 20 years of age on October, 1989, works with law enforcement investigators of District 12 of the Division, Daytona Beach, Florida, as an Investigation Aide in determining whether licensed establishments are selling alcoholic beverage within their licensed premises to persons under the age of 21 years. On Saturday, October 7, 1989, Long met with Investigator Ron Sullivan for the purpose of Sullivan explaining the procedure used to effect underage investigation. At this time, Sullivan explained to Long that he would enter a licensed premises first and Long was to follow a few minutes later. Upon entry of the licensed premises Long was to approach the appropriate point of sale and ask to purchase an alcoholic beverage. Long was instructed to carry his own personal Florida Driver's license and to present the driver's license upon request. Long's Florida driver's license depicted him as having a mustache. The photographs taken on October 7, 1989 depicts Long as being clean shaven, without a mustache. One of the targeted licensed premises for October 7, 1989 was OB's because of a complaint received from the local police department. At approximately 9:45 p.m. on October 7, 1989, Sullivan and Long arrived at OB's parking lot and Sullivan then entered OB's, with Long following in approximately five minutes. Kevin Cox was in charge of checking identification (ID) at the door of OB's to keep out underage persons, and was in fact checking ID's at the door of OB's on Saturday night, October 7, 1989. On Saturday night, October 7, 1989, at the time Long entered OB's and purchased the beer, the bar was quite busy, some customers were playing pool and a band was playing, as was normal on Friday and Saturday night On Saturday night, October 7, 1989 there were several signs over the entrance to the bar at OB's indicating that proper identification was required and that it would be checked When Long entered OB's, Cox was checking several other persons' ID cards, and did not stop Long to check his ID as he "skirted" around him because he appeared to be about the same age as those persons Cox was checking who were in the 24-25 year-old bracket according to their ID cards. After entering OB's, Long found a seat at the bar, sat down, and ordered a Budweiser beer from Christine Shuter O'Brien who was tending bar at that time, along with Lorraine Ware. Ms. O'Brien opened a long-neck 12 ounce bottle of Budweiser beer, an alcoholic beverage, and served the beer to Long who paid Ms. O'Brien for the beer. Ms. O'Brien did not question Long's age or require any type of ID from him before selling and serving him the beer. Upon receiving the beer and his change, Long turned and handed the beer to Sullivan, and Long left the premises. Sullivan identified himself to Ms. O'Brien and advised her that he had observed her sell an alcoholic beverage to a person under the age of 21 years. Sullivan then requested that they move to area where they could speak. After moving to another area, Sullivan presented O'Brien with a Notice to Appear, in lieu of arrest. Ms. O'Brien has had no previous Beverage Law violation in any establishment that she has owned, including one in DeLand and one in Illinois. Ms. O'Brien's policy concerning the serving of alcoholic beverages is that if someone appears to be of age (21 years or older), then it is not necessary to request an ID to confirm their age. Both Kevin Cox and Lorraine Ware was aware of this policy, as well as other employees. Lorraine Ware, through experience and having taken a course taught by the Division concerning serving underage persons, is aware that it is her responsibility to avoid serving an underage person alcoholic beverage. Ware has also received instruction from Ms. O'Brien not to sell alcoholic beverages to an underage person. Long's appearance on Saturday night, October 7, 1989 and on the day of the hearing (February 13, 1990), four months later, was very similar, except for his clothing, and would cause an ordinary prudent person to question whether he was 21 years of age or older. Long's appearance should have caused both Cox and Ms. O'Brien to require him to confirm his age by some type of identification. O'Brien's failure to require confirmation of Long's age before selling him the beer on Saturday night, October 7, 1989 showed a lack of due diligence on her part, notwithstanding her presumption that Cox had checked Long's ID at the door, or the fact that she had several signs posted concerning the checking of ID's.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the mitigating circumstances surrounding the sale, it is, therefore, RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of a violation of Section 562.011(1)(a), Florida Statutes, and for such violation assess a civil penalty of $500.00. DONE AND ENTERED this 21st day of March, 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 21st day of March, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6962 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-2. Adopted in Findings of Fact 1 and 3, respectively. Adopted in Findings of Fact 4 and 5. Adopted in Findings of Fact 6 and 7. 5.-9 Adopted in Findings of Fact 8, 12, 13, 14 and 12, respectively. 10. Adopted in Findings of Fact 2, 15. 11.-15. Adopted in Findings of Fact 16, 8, 18, 9 and 18, respectively. 16 Rejected as not being supported by substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-3. Covered in Preliminary Statement. Covered in beginning paragraphs. Covered in Preliminary Statement and in Findings of Fact 5. Adopted in Findings of Fact 5, as modified. Adopted in Findings of Fact 4 and 5, as modified. Adopted in Findings of Fact 7, 12 and 14, as modified, except for the last sentence which was rejected because O'Brien was not arrested but given Notice To Appear in lieu of an arrest. 9.-14. Rejected as being more of a restatement of testimony than proposed findings of fact, but if stated as proposed findings of fact then adopted in Findings of Fact 8, 9, 10, 12 and 17. COPIES FURNISHED: Stephen R. MacNamara, Secretary 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 Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399- Joseph A. Scarlett, Esquire 208 West Howry Avenue Deland, Florida 32720
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact: The Respondent, Jamestown In The Grove Apartments Club, Inc., d/b/a Suzanne's In The Grove, (hereinafter referred to as "Suzanne's") holds alcoholic beverage license number 23-1193, license series 11-C. Respondent has held the subject license since December of 1971. For a number of years the Respondent operated at its present location in much smaller premises. Several years ago the buildings where Respondent was located were demolished and a highrise condominium building was erected on the site. Respondent obtained space in the new building and embarked upon a plan to create a larger and fancier facility then it had previously operated. The new improved facility began operations in May of 1983 under the present name of Suzanne's In The Grove. The new improved facility is, in the words of one of the witnesses, "... a high fashion, beautiful people-type disco nightclub in Coconut Grove." The property and furnishings for the new improved facility required an investment in excess of two million dollars. During the planning stages for the new improved facility which opened in May of 1983, Suzanne's retained the services of a consultant who was an expert in the planning and operation of limited membership clubs. The consultant worked with the management of Suzanne's in designing the layout of the premises and in instituting operational procedures designed to maximize the ability of management to control access into the premises. The concepts employed by the consultant were modeled on the procedures used at limited access private clubs on military bases. The premises were specifically designed to facilitate the limitation of access to members and their guests. To that end, the premises had a small doorway, had a desk for checking membership just inside the doorway, and had a narrow stairway that led from the reception desk to the main area of the club. Suzanne's also issued plastic membership cards embossed with the member's name in raised letters. The operations procedures included provisions for a doorman, at least one receptionist at the desk, and at least one employee at the top of the stairs. Often they had more than one employee at the desk and at the top of the stairs. Due to unexpected extremely large crowds of patrons when Suzanne's first opened, they also contracted for additional security personnel to assist their regular employees with access control. As part of the preparation for the opening of Suzanne's the management of the club formulated a set of written policies for employees. Included in these written policies were specific prohibitions against any conduct which would constitute a violation of the alcoholic beverage laws. Each employee was given a copy of these written policies and was required to read the policies and then sign a statement agreeing to comply with the policies and acknowledging that he or she would be fired for any violation of the policies. These policies included a specific prohibition against admitting anyone who was not a member or a bona fide guest of a member. Between the opening of Suzanne's and the dates of the violations charged in this case, Suzanne's had fired employees for admitting people who were not members. Prior to opening in May of 1983, Suzanne's also instituted a policy of requiring periodic polygraph examinations of all employees. The consultant helped them formulate the questions to be asked during the polygraph examinations. The polygraph examinations specifically covered questions as to whether the employee was aware of the members-only regulations, whether the employee had ever distributed a membership card without collecting a membership fee and turning the fee over to the club, and whether the employee had ever let anyone into the club who was not a member or a bona fide guest of a member. If the results of the polygraph examination indicated that an employee was being deceptive about whether he or she had admitted non-members to the club, the employee was terminated. The consultant also assisted the management of Suzanne's in the selection of key employees and participated in the interviews of those employees. From the date of opening through August 28, 1983, Suzanne's sold 3,025 memberships at $50.00 each. Since August 28, 1983, Suzanne's has taken in an additional $198,000.00 in membership fees. Because of the large amount of revenue generated by the sale of memberships, Suzanne's has always been very interested in strict enforcement of the members-only policy. It is in Suzanne's best economic interests to maintain strict enforcement because without such enforcement there would be no reason for anyone to buy a membership and Suzanne's would in all likelihood lose substantial membership revenues. Suzanne's entire marketing concept would have been ruined if people could get in easily without having a membership card. When Suzanne's first opened in May of 1983, all employees were required to attend a meeting at which an attorney specializing in alcoholic beverage law told them about the requirements of the liquor laws in general and about the special provisions of the liquor laws relating to 11-C licenses. All of the employees were specifically told that the sale of alcoholic beverages was restricted to members and their guests. The consultant employed by Suzanne's recommended an emphasis on access control at the door rather than a system of point of sale control because Suzanne's did not have an in-house credit or charge system, which is the best system to use for a point of sale control system. An in-house credit system was prohibitively expensive where membership dues were only $50.00 per person. A typical Dade County club with an in-house credit system has an annual membership fee of $460.00 in addition to an initial fee of $1,000.00 to join. Since the dates of the violations charged in this case Suzanne's has maintained its access control procedure at the door and has added a point of sale control system as well. The point of sale control includes imprinting the membership card on all sales slips. On August 28, 1983, two investigators of the Division of Alcoholic Beverages and Tobacco went to Suzanne's at about 2:20 a.m. They told the doorman ("Robert") that they were not members but that they wanted to go in and look around. The doorman let them in, but told them that if anyone asked they should say they came in with a member. Once inside the premises, each of the DABT investigators ordered and were served an alcoholic beverage. None of the bartenders or barmaids asked if they were members. On September 7, 1983, the same two investigators returned to Suzanne's at approximately 11:40 p.m. They walked past the doorman and other employees and entered the premises. No one tried to determine if they were members. Both investigators ordered and were served an alcoholic beverage. On September 10, 1983, two DABT investigators (one who had been on both prior occasions and one who had not been there before) went to Suzanne's. A line of approximately 300 people were waiting outside to enter Suzanne's. To avoid waiting in the line, the two investigators went near the front of the line and waited until the one who had been there before could get the attention of Robert, the doorman. When he got Robert's attention, he asked Robert if Robert could do them a favor about the line and gave Robert $5.00. Robert took the money and admitted the two investigators without asking whether they were members. One of the investigators was able to order and be served an alcoholic beverage. It was so crowded inside that the other investigator was not able to place an order for an alcoholic beverage. On September 21, 1983, the two DABT investigators who had visited Suzanne's on the first occasions described above returned to the premises. Again they were able to enter without being asked about their membership status and both ordered and were served an alcoholic beverage. None of the DABT investigators who went to Suzanne's on the four occasions described above were members of the Suzanne's, nor were they bona fide guests of anyone who was a member. On each occasion when they were served alcoholic beverages, they paid the regular price for the beverages, approximately $3.50 each. On all four of the occasions described above when the DABT investigators entered Suzanne's and purchased alcoholic beverages, the club was very crowded. The extent of the crowds on those nights is reflected by the gross receipts for those four nights which were, respectively, $10,099.35, $5,125.60, $9,973.25, and $5,034.15. On all four of the occasions described above when DABT investigators entered Suzanne's, there were several employees of Suzanne's both in the area of the reception desk at the bottom of the stairs as well as at the top of the stairs attempting to control access to the premises and maintain control over the crowds. During 1983 Suzanne's was obtaining security services from Dade Federal Security. The security company would provide plainclothes guards to assist Suzanne's employees check membership, to help maintain order, and to help control the line outside when it was especially crowded. Sometime during 1983 the management at Suzanne's complained to Dade Federal Security that they suspected that some of the guards provided by Dade Federal Security had been taking money to admit non-members into the premises. Dade Federal Security confronted its employees with this complaint and one of the employees confessed to having taken money to admit non-members to Suzanne's. The employee was fired. The foregoing findings of fact contain the substance of the vast majority of the findings proposed by both parties. Proposed findings which are not incorporated in the foregoing findings are specifically rejected as irrelevant, as contrary to the greater weight of the evidence, or as unsupported by persuasive competent substantial evidence.
Recommendation On the basis of all of the foregoing, I recommend that the Director of the Division of Alcoholic Beverages and Tobacco enter a Final Order in this case dismissing all charges against the licensee. DONE AND ORDERED this 3rd day of July, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1985. COPIES FURNISHED: Howard Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sy Chadroff, Esquire 2700 Southwest 37th Avenue Miami, Florida 33133
The Issue The issues to be resolved in this proceeding concern whether the Respondent's beverage licensure should be subjected to sanctions for allegedly selling alcoholic beverages to a minor and what if any penalties should be imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating licensure, and practice under that licensure, of alcoholic beverage-selling entities in the State of Florida, including administration of the laws and rules related to the selling of alcoholic beverages by restaurant businesses. The Respondent is an entity licensed and domiciled in the State of Florida and authorized to sell alcoholic beverages under license number 55-00306, Series 2-COP. The Respondent is subject to the Division's regulatory jurisdiction. The subject license allows the Respondent to make sales "by the drink" for consumption on the premises at the restaurant business located at 1766 S. Eighth Street, Fernandina Beach, Florida. On October 22, 2002, Ms. Deidre Kaye Miller, then 18 years of age, was employed as an I.A. by the Petitioner Agency for the purpose of attempting to purchase beer at the Respondent's restaurant. She was paid a total of $35.00 for her services as an undercover operative that day by the Division. She was given instructions by Agent Edwards and Agent Maxwell to attempt to purchase an alcoholic beverage from the Respondent. Ms. Miller was told that if asked for identification she was to show her valid Florida Driver's License, if asked her age to tell her correct age and not to engage in any extensive conversation with anyone. On October 22, 2002, Ms. Miller entered the restaurant and walked to the left of the entrance where the bar was located. A waitress asked what she wanted and she told her she wanted a Corona (Beer). After Ms. Miller ordered the beer from the waitress the owner and Respondent Mr. Wong came over and asked for her identification. She provided her driver's license as an I.D. to Mr. Wong. As he was checking her driver's license the waitress, Tabitha Cornett, opened the Corona and set it on the counter so that it would be ready when Mr. Wong approved giving Ms. Miller the beer. The point on the bar where the beer was placed was approximately 16 feet away from where Mr. Wong and Ms. Miller were having the conversation about her I.D. Mr. Wong viewed Ms. Miller's Driver License I.D. for 30 or 45 seconds. The driver's license had her correct name and date of birth, which was in 1984, and a statement printed on the license which said "Under 21 until 09-02-05." Mr. Wong allowed the beer to be served to Ms. Miller. Ms. Miller took the beer and placed it on a table near the bar. She then indicated to the waitress that she was going to call friends to meet her and walked outside the restaurant, leaving the beer on the table. In restaurant sales situations, IAs are instructed to depart the premises once they have been served alcohol. Generally payment will not be tendered because, in restaurant situations, the law and licensure calls for consumption on the premises and it is customary to consume the alcohol and pay for at the end of one's stay at the restaurant. In the instant situation neither Ms. Miller nor anyone else ever paid for the beer in question. Mr. Wong acknowledged in a due diligence statement taken at 5:30 p.m., on the day in question October 22, 2002 (in evidence as Petitioner's Exhibit four) that he checked the I.D. but he wasn't wearing his glasses and he thought it said that Ms. Miller was born in 1964. He asked her, "You were born in 64?" He said in his statement that Ms. Miller did not reply to him and then he states (in his due diligence statement) that he told her that she was too young for that I.D. and again she said nothing. He again asked her if this was her I.D. and she said nothing. He handed it back to her. He then said in the statement: "I did not want to insult someone so I allowed it served." In other words he questioned whether she was old enough based upon the I.D. he saw; believing it to say 1964 because he did not have his glasses on, but also believing that she appeared too young for that I.D. Ms. Miller left the premises and Agent Edwards and Agent Maxwell entered the premises and informed Mr. Wong that he had just allowed service of alcohol to a minor. Thereafter Mr. Wong was placed under arrest handcuffed, and taken to the Nassau County Jail. Mr. Wong had never had any beverage-related offense on his record prior to that time. No investigation or prosecution concerning his business had ever occurred up to that point. A criminal prosecution was instituted against him concerning this same incident and facts, which resulted in a jury verdict of acquittal. The totality of the evidence shows that although Mr. Wong did not actually serve Ms. Miller, he did allow a beer to be served to her. She was under 21 years of age. Mr. Wong testified that even though one person checks identification, any employee can open a beer and place it on the counter or service bar. Ms. Cornett did so in this case, placing the beer at the far end of the service bar from where Mr. Wong and Ms. Miller were conversing concerning her I.D. This allows the beer to be ready once the person checking the I.D. authorizes the sale. In the situation at hand, Ms. Cornett opened the beer, placed in on the bar and Mr. Wong then went through the door away from the bar into the main part of the restaurant. Ms. Miller, the I.A., then took the beer from the bar and placed it on the table and told Ms. Cornett that she was going outside to meet her friends or to call her friends. After that occurrence the other agents named above came in, explained the situation to Mr. Wong, and arrested him during the course of which discussion he made the above-referenced statement. Mr. Wong never touched the beer in question and Ms. Cornett never actually physically handed it to Ms. Miller, but both Mr. Wong and Ms. Cornett allowed Ms. Miller to take the beer from the bar and place it on her table, thus taking the beer into her own custody and control at least temporarily, even though no money was exchanged in return for the beer.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, finding that the Respondent violated Section 562.11(1)(a), Florida Statutes, and that he be required to pay a $250.00 fine to the Division. DONE AND ENTERED this 31st day of July, 2003, in Tallahassee, Leon County, Florida. S COPIES FURNISHED: Christina Pardieck, Assistant General Counsel P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 31st day of July, 2003. Division of Alcoholic Beverage and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Gary Barker, Esquire Post Office Box 1177 Callahan, Florida 32011 Hardy L. Roberts, III, General Counsel Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Peter Williams, Director Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact 1718, Inc. held alcoholic beverage license number 58- 1581, Series 2-Cop; for the premises of the Fox Hunter, 1718 South Orange Avenue, Orlando, Florida, at all times relevant to these proceedings. The license was issued on June 18, 1981. Although the testimony of Captain Jack B. Wallace that John and Fay Knight (Knights) were the owners of the real property located at 1718 South Orange, Orlando, Florida, went unrebutted, the record does not reveal the date when John and Fay Knight became the owners of the real property located at 1718 South Orange Street, Orlando, Florida. The Knights were absentee landlords and leased the premises to 1718, Inc. d/b/a/ Fox Hunter (Fox Hunter) through a real estate agency in Orlando, Florida. On June 3, 1985 Petitioners mailed a letter to the Knights informing them that the alcoholic beverage license of Fox Hunter had been suspended on an emergency basis due to 13 alleged sales of narcotics on the premises by employees of Fox Hunter; that Respondent had requested a hearing on the charges; that Petitioner would seek license revocation with prejudice as provided in Section 561.58, Florida Statutes (1983); that the Petitioner would present evidence at the hearing in support of license revocation with prejudice; and that the Knights would be advised of the date, time and location of the hearing at a later date. The record does not reveal that Petitioner ever advised the Knights as to the date, time and location of the hearing, however, counsel for Respondent announced at the time of the hearing that he would be representing the Knights. Additionally, the record does not reveal that a copy of the original or Amended Notice To Show Cause was ever furnished to the Knights. Nor does the record reveal that the Knights had any knowledge of any previous violations at the premises. On April 29, 1985, Orlando Police Officer Kerry Farney (Farney) went to the premises of Fox Hunter and spoke to dancer Joyce Travis concerning the purchase of cocaine. Joyce agreed to sell Farney a half gram for $50.00. Farney gave Joyce $55.00, including $5.00 for a dance which she performed, and Joyce returned to Farney a dollar bill wrapped around two- plastic packages of cocaine. Officer Farney returned to the Fox Hunter on April 30, 1985, and spoke with dancer Lisa Nolen a/k/a Dusty concerning the purchase of a quarter gram of cocaine. Dusty agreed to sell the cocaine and obtained $25.00 from Farney. She later returned to Farney and handed him a plastic package containing cocaine. Officer Farney again returned to the Fox Hunter on May 2, 1985 and was later met there on this same day by Investigator Rodney Russ (Russ). The Officers arranged to purchase cocaine from the dancer Dusty. Farney gave Dusty $30.00, $5.00 for a dance and $25.00 for a quarter gram of cocaine. Russ gave Dusty $50.00 for one half gram of cocaine. After going into the dancers' locker room, Dusty returned to the officers and handed to Farney a dollar bill wrapped around two plastic packages of cocaine and asked Farney to pass it to Russ. Farney passed the cocaine wrapped in the money to Russ which Russ opened and inspected the two plastic-packages of cocaine contained therein. Later that same night Dusty delivered the cocaine to Farney which he had paid for earlier. Russ returned to the Fox Hunter on May 3, 1985 and entered into conversation with dancer Laura, who asked if he was looking for a quarter gram of cocaine. Russ stated that he wanted a half gram and Laura responded that she would see what she could do. After speaking with an unknown male patron, Laura returned to Russ and stated that all he had left was three- tenths of a gram for $30.00. Russ stated that he would take the three tenths of a gram and gave Laura $30.00. Laura again approached the unknown patron and then returned to Russ after being assured by Russ that he was not a cop or with law enforcement, placed a bill in his pocket. Russ removed and opened the bill and inspected the plastic package of cocaine. Russ returned to the Fox Hunter on May 7, 1985 and entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. Joyce stated that she would be able to get it later. Joyce subsequently asked Russ how much he wanted to buy and Russ responded that he wanted a half gram. Russ gave Joyce a $100.00 bill and she went into the women's dressing room. Joyce later returned to Russ and gave him $25.00 change wrapped around two clear plastic packages of cocaine. Russ returned to the Fox Hunter on May 8, 1985, and was solicited by dancer Joyce for the purchase of two beers. Russ returned to the premises of the Fox Hunter on May 9, 1985, and entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. Joyce left Russ to talk to an unidentified black male and returned to inform Russ that she could get the half gram of cocaine from the black male after he split it up and that Russ would have delivery soon. The male went into the restroom and when he emerged from the restroom, Joyce approached him and then went into the women's restroom. After exiting the restroom, Joyce performed a dance for Russ, during which she told him to take a dollar bill out of her garter. Russ took the dollar bill and opened it up to inspect two tinfoil packages of cocaine. Russ returned to the licensed premises on May 10, 1985, and again entered into conversation with the dancer Joyce concerning the purchase of a half gram of cocaine. When Joyce agreed, Russ handed her $75.00. Joyce subsequently returned to Russ and handed him a plastic package of cocaine which Russ placed into the cellophane wrapper of his cigarette pack. Joyce stated that the person from whom she had obtained the cocaine only had a quarter gram but would be getting a delivery soon, at which time Joyce would give Russ his other quarter gram. Russ did not obtain the additional quarter gram prior to leaving the premises on this occasion. Russ returned to the Fox Hunter later the night of May 10, 1985 and spoke with Joyce about obtaining his remaining quarter gram of cocaine and she advised him that delivery had not been made. Russ then talked with dancer Laura about obtaining some cocaine. Laura first said that it would be after 2:00 a.m. when the bar closed but when Russ told her he could not wait that long she obtained a short quarter gram from an unidentified white male. Laura then left to go into the women's restroom. When she returned to Russ, Laura placed a plastic package of cocaine in his pocket stating that she had tried the substance and it was good. Russ removed the package from his pocket and inspected it. As Russ was leaving, Joyce approached him near the entrance and handed him a plastic package containing his remaining quarter gram of cocaine. Russ returned to the premises of the Fox Hunter on May 15, 1985, and was solicited by the dancer Dusty to purchase her a bottle of champagne for $5.75, which he did. Russ again went to the Fox Hunter on May 16, 1985 and entered into conversation with the dancer Laura concerning the purchase of a half gram of cocaine. Laura stated that she would be able to get him some. Laura approached and spoke to an unknown patron and the dancer Michelle, after which she went into the women's dressing room. She shortly returned to Russ and placed two plastic packages of cocaine into his pocket. On May 17, 1985, the Respondent served an Emergency Order of Suspension and Search Warrant on the Fox Hunter. Located during the search was a dollar bill wrapped around a package of cocaine, a plastic package of cocaine, a package of marijuana and several marijuana cigarettes. The sale or delivery of the cocaine on April 29, 30, 1985 and May 2, 3, 7, 9, 10, 16, 1985 to investigator Farney and Russ took place in and around the dance area of the premises. On April 20, 1982 the Respondent served a letter of warning to Fox Hunter alleging that on August 4, 1981, an employee had solicited the sale of an alcoholic beverage in violation of Section 562.131, Florida Statutes and further alleging that on October 30, 1981, an employee had delivered a controlled substance to a police officer on the premises. No proof was offered as to the disposition of those matters, or indeed, whether the incidents ever actually took place. In July, 1984, the manager of Fox Hunter --Lawrence Siegel -- apprehended one of its employees and a patron engaged in a drug transaction: he detained them and called the Orlando Police Department, and the two were taken into custody. The Petitioner's response to this action was to issue a citation against the Fox Hunter for the alleged sale, even though it was Lawrence Siegel who uncovered the transaction and apprehended the perpetrators. Mr. Siegel contacted Lt. Farmer of the Orlando Police Department and requested assistance in placing an undercover officer in the lounge as an employee. Mr. Siegel wanted to interdict narcotics and assist in the apprehension of the persons who might be dealing with them. However, the request was turned down because, as Lt. Farmer explained, the police department did not have the necessary resources to assist in this manner. The record is not clear as to the period of time Lawrence Siegel maintained contact with the police, but he did contact them about the problem, identifying suspected dealers and providing names and descriptions of vehicles. However, Jason Robaudo replaced Lawrence Siegel as night manager during this period of time. James Robaudo was present in the licensed premises during most of, if not all of, the time during which the unlawful activities accursed. Although the record is not entirely clear on the details, there were other alcoholic beverage establishments in the same general area that had been charged with the sale of controlled substances on the premises where a heavy fine plus a short license suspension had been imposed rather than a license revocation or a license revocation with prejudice.
Recommendation For all of the foregoing reasons it is RECOMMENDED that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 58-1581, Series 2-COP, issued to 1718, Inc., d/b/a Fox Hunter. Respectfully submitted and entered this 3rd day of September, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1985. COPIES FURNISHED: Louisa E. Hargrett, Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Richard L. Wilson, Esq. 1212 East Ridgewood Street Orlando, Florida 32803 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr. Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
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
The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of Sections 562.12 and 562.02, Florida Statutes, pursuant to Section 561.29, Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner. The hearing was originally scheduled for December 8, 1977, but Respondent filed a motion for continuance which was granted by the Hearing Officer, and the hearing was rescheduled for January 18, 1978. Another hearing on that date precluded reaching the instant case and therefore the matter was again continued until January 30, 1978. At the hearing, Respondent moved to dismiss the charges on the ground that the Notice of Hearing issued by the Hearing Officer on November 21, 1977, was defective in that it did not adequately describe Petitioner's Notice to Show Cause or attach it to the Notice of Hearing. The motion was denied upon a determination that Respondent had adequately been placed on notice as to the nature of the offenses charged and due to the fact that the notice to show cause had been sent by certified mail to Respondent and that the receipt thereof on August 13, 1977, which reflected his signature, was not contested. Further, Respondent's motion for continuance indicates that his counsel was aware of the subject matter of the charges. Additionally, if such had not been the case, Respondent had more than ample opportunity during the periods in which the case was continued to seek amplification or clarification of the issues involved as set forth in the Notice of Hearing. Respondent also inquired as to whether Chapter 120, Florida Statutes, requires that the Hearing Officer have access to a hearing transcript prior to rendering a Recommended Order to the Petitioner. The undersigned Hearing Officer ruled that such a transcript is unnecessary under applicable law and regulation, specifically Rule 28-5.25(7), Florida Administrative Code, which provides that at a hearing during which the services of a court reporter have been retained, any party who wishes a written copy of the testimony shall order the same at his own expense. Upon inquiry by the Hearing Officer, both parties to the proceedings indicated that they did not intend to order a transcript of the testimony adduced at the hearing. Accordingly, the Hearing Officer advised respondent that the Recommended Order in this matter would be prepared without access to such a transcript.
Findings Of Fact Respondent, Harold V. Edwards, holds License No. 30-23, Series 1-COP, issued to him in the name of "Edwards Store,' Chattahoochee, Florida, and held the same at the time of the alleged violations charged by Petitioner in this matter. A series 1-COP license authorizes the sale of beer for consumption on the licensed premises only. (Petitioner's Exhibit 1, Testimony of Sams) At approximately 10:00 a.m. on August 15, 1976, Petitioner's beverage officer, Gary E. Sams, drove a paid informant, Guy Williams, to a place near Respondent's place of business where they met another beverage agent, Fred Miller, who was in a separate vehicle. At that time, Sams searched Williams and determined that he had no alcoholic beverages or money on his person. Sams gave him $5.00. Williams then proceeded to drive Sams' vehicle to Edwards' Store with Sams in a prone position in the back seat. Upon arrival, Williams entered the store and ordered a half pint of Seagrams gin from a short, chunky, heavy built, white woman behind the counter. He also purchased a beer. He observed the woman go through a door in the back of the store, and she thereafter returned with a sealed bottle labeled "Seagrams Extra Dry Gin." She gave him $2.20 change from a $5.00 bill which he had given her. Williams thereupon returned to the car outside and he and Sams returned to the area where Miller had been waiting. Sams opened the bottle and determined that it was liquor by its smell. He permitted Williams to take two drinks from the bottle and Williams determined that it was gin. Sams placed an identification label on the bottle which he and Williams signed and it was later placed in Petitioner's evidence room in their Tallahassee office. On some date between August 15 and August 29, 1976, Sams inspected Respondent's premises at which time Respondent's wife, Louise Edwards, signed a state inspection form. Sams noted that she met the general description of the woman who had sold Williams alcoholic beverages on August 15. Mrs. Edwards told Sams at this time that she and her husband were the only persons who worked at the store. Sams thereafter inserted her name on the identification label of the bottle turned over to him by Williams to reflect that she had been the seller of the alcoholic beverages. At the hearing, Respondent attacked the credibility of Williams based on what are considered by the Hearing Officer to be minor discrepancies in his testimony. It is found that his testimony, in conjunction with that of Sams, is sufficient to establish that Louise Edwards sold him a half-pint bottle of Seagrams Extra Dry Gin on August 15, 1978, at Respondent's licensed premises. (Testimony of Sams, Miller, Williams, Petitioner's Exhibit 2) On August 24, 1976, a warrant was issued by the Circuit Court of Gadsden County, Florida, authorizing the search of Respondent's premises, together with the curtilage and all outbuildings. On August 29, 1976, at about 10:30 a.m., Sams, Miller, and other beverage agents and county law enforcement officials entered Respondent's store at which time Sams served the search warrant on Louise Edwards. She went to the living quarters of the building behind the store and Miller heard her go down the hallway and close a door. Miller proceeded down the hallway and found that one door at the end of the hallway was locked. When Mrs. Edwards was asked if she had the key, she replied in the negative, stating that it was her daughter's room and that no one was allowed to go in. At that point, Miller opened the lock with a jackknife. In the room, the agents found a number of cases of alcoholic beverages containing some 252 bottles of assorted sizes and brands of whiskey, vodka, rum, and gin. The bottles were found in a paper sack which Mrs. Edwards said had been given to her husband by a friend and were "not for resale." The agents inventoried the contents of the room, placed identification tags on the items and placed the seized articles in the evidence room of Respondent at Tallahassee. Although the room where the liquor was found was once a separate building, it has been joined to the main building by means of the hallway and there was free access between the structures. Respondent was in a bed in the living quarters at the time of the search. (Testimony of Sams, Miller, Petitioner's Exhibits 1-4)
Recommendation That Petitioner impose a civil penalty of $500 against Respondent, Harold V. Edwards, under the authority of Section 561.29(1)(b) and (4), Florida Statutes, for violation of Sections 562.02 and 562.12, Florida Statutes. DONE and ENTERED this 15th day of February, 1978, 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 32304 Jack A. Harnett, Esquire Post Office Box 706 Quincy, Florida 32351 Charles Nuzum, Director Division of Beverage Department of Business Regulation State of Florida Johns Building 725 South Bronough Street Tallahassee, Florida 32304
