Findings Of Fact The Respondents, Thomas Olhausen and Henry Stripling, d/b/a Trackside Lounge, hold Beverage License No. 23-1647, Series No. 4-COP, which was issued for the current year. On or about June 5, 1983, the Respondent Thomas Olhausen sold a controlled substance, namely cocaine, to Beverage Officer Terminello while he was on the licensed premises known as Trackside Lounge in Dade County, Florida. On or about June 8, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Dodson while he was on the Trackside Lounge premises. On or about June 12, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Terminello while he was on the premises of Trackside Lounge. The Respondent Henry Stripling did not go onto the Trackside Lounge between the dates of March 10 and June 10, 1983, pursuant to a restraining order issued on March 10, 1983, by the Dade County Circuit Court. This March 10, 1983, court order appointed two receivers to supervise the operation of the business known as Trackside Lounge. Pursuant to this authority the receivers employed Thomas Olhausen to operate and manage the business. Thus, Thomas Olhausen was not subject to the restraining order which barred Henry Stripling from entry onto the Trackside Lounge premises. The Respondent Henry Stripling had no connection with the sale of cocaine by the Respondent Thomas Olhausen to the Beverage Officers on June 5, 8 and 12, 1983. The court order of March 10, 1983, did not attempt to effect a judicial transfer of the beverage license held by the Respondents. The court appointed receivers did not file an application for a beverage license pursuant to Section 561.17, Florida Statutes, and there is no evidence that the receivers attempted to transfer the beverage license held - by the Respondents pursuant to Section S61.32(1)(a) and (b), Florida Statutes, or Section 7A-2.06(6), Florida Adminstrative Code. The court appointed receivers did not file a certified copy of the order appointing them as receivers with the Division of Alcoholic Beverages and Tobacco pursuant to Section 7A-2.06(6), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the alcoholic beverage license held by the Respondents, Thomas Olhausen and Henry Stripling, being number 23-1647, Series No. 4-COP, be revoked. THIS RECOMMENDED ORDER entered this 26th day of July, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 26th day of July, 1983. COPIES FURNISHED: William A. Hatch, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Mark A. Jacobs, Esquire 18204 Biscayne Boulevard North Miami Beach, Florida 33160 Richard F. Hayes, Esquire Suite 20 4601 Ponce de Leon Boulevard Coral Gables, Florida 33146 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At some time prior to March 1, 1963, Randall R. Aleno, a former deputy sheriff with the Volusia County, Florida, Sheriff's Department; his brother, Mick Aleno; his father, Charles Aleno; and his wife, Patty Aleno, formed Aleno's Enterprises, Inc., a Florida corporation, with Randall Aleno owning more than 50 percent of the corporate stock. Randall Aleno is the corporate president; Mick Aleno,the vice president; Charles Aleno, the treasurer; and Patty Aleno, the secretary. Having been a long-time resident of Volusia County, Randall Aleno saw a need for and developed a concept for a form of mobile concession stands to operate on the St. Johns River in the general area of Volusia County and the contiguous counties north and south of it. Before taking any definitive steps toward implementing this idea, Randall Aleno, on January 10, 1983, wrote letters both to the Commanding Officer of Port Operations for the U.S. Coast Guard in Jacksonville, Florida, and a representative of the Volusia County Health Department outlining in general terms the nature of his plan and seeking approval of those agencies for the project. Apparently, neither agency interposed any objection. He also contacted the local office of the Petitioner, Division of Alcoholic Beverages and Tobacco, where he spoke with Agents Dunbar, Blanton, and Clark, outlining his proposal. On at least one occasion, Mr. Aleno told Division of Alcoholic Beverages and Tobacco representative Clark, while at the counter in the Division of Alcoholic Beverages and Tobacco Daytona Beach office, that he intended to make bulk sales of beer from boats tied to buoys in the St. Johns River at the time of sales, but which would, when not in operation, be moored at the Tropical Marina in DeLand, Florida. In Dir. Clark's opinion, this type of proposed operation was not covered or provided for in the statutes or in the rules of the Division and he felt the applications for licenses for these operations should he denied. According to Mr. Clark, when he advised Mr. Aleno of this on several occasions, Mr. Aleno still wanted to try and submitted the application. At some time during this period, Mr. Aleno, who had been with the sheriff's office for 14 years, retired from that employment, 1/ purchased three houseboats (one 39-foot boat and two 26-foot boats) which he thoroughly rehabilitated to be capable of storage and the sale of sandwiches and package sales of soft drinks and beer. The sandwiches to be sold were to he pre- wrapped, the beverages in cans, coffee in styrofoam cups with lids, and all condiments would be in sealed packages. No food or drink was to be opened or consumed on board the boats, floating concession stands. When the boats were completed, because he had been told by Division of Alcoholic Beverages and Tobacco agents at the Daytona Beach office that a license would not be issued to a moving establishment, he secured a boat slip for each boat at the Tropical Marina. Mr. Aleno picked up the applications for beverage licenses from the Daytona Beach office. Me also wrote to a beverage supervisor at the Jacksonville office in an effort to prepare the way for his applications. Mr. Aleno was told, at some point in the procedure, that he would need to submit copies of the plans, the boat layouts and details of the operation. All of these, in addition to the letters from the Coast Guard and the county health department, were submitted for consideration with the applications. Mr. Aleno attempted to describe his proposal to each official with whom he came into contact. The local Division of Alcoholic Beverages Supervisor, Lt. Powell, and Mr. Clark admit that Mr. Aleno told them what he planned to do with his operation and how it would work. Lt. Powell reviewed the complete application and discussed it with Mr. Clark. He, Powell, was aware that the sales of unopened packages of beer would be made out on the river and not at the Tropical Marina before the application was forwarded to Tallahassee for action, but there was nothing written in the application to indicate the sales would be made up and down the river. The applications showed the location of the premises as Tropical Marina, Slips 41, 42 and 43. The applications were forwarded to Tallahassee in the normal course of business apparently without recommendation one way or the other by the local office. The licenses were issued on April 1, 1983, showing their location as Tropical Marina, Slips 41, 42 and 43, respectively, Lakeview Road, DeLand, Florida. The 1-APS licenses were issued to Aleno's Enterprises, Inc. trading as Randv's Subs #41, 42 and 43. (License Numbers 74-1565, 74-1566, and 74-1567) Respondent does not operate its boats as a steamship line. It does not carry people, other than employees, on the boats for pay or gratis. None of the boats go more than 100 miles in either direction from the point of mooring. Respondent has not been selling beverages for consumption on the premises, but has been making package sales only of beer off the boats. Barry Schoenfeld, Chief of Licensing Records for Respondent in Tallahassee, reviewed these applications and the license files sometime during the summer of 19-83 after the licenses were issued. His review of the files led him to conclude that the Respondent's operation does not qualify for a 1-APE license because the boats are not permanently moored at their docks. Florida Beverage Laws require, generally, a fixed permanent structure. There are some exceptions for movable vehicles such as steamships, trains, and airplanes and also for pleasure boats which go more than 100 miles per outing. He believes Respondent's boats would qualify for this latter license which, however, is a COP license, not an APS license. He has thoroughly examined the Respondent's applications; and the way the total file reads, it gives him the impression the boats would be moored at the dock in a fixed permanent location. This is why the licenses were issued. Since an obvious mistake was made, and since Mr. Schoenfeld did not know of any provision in the Florida Beverage Law which covers an operation such as that of Respondent, in the summer of 1983, he called Respondent, speaking with Mrs. Patty Aleno, and advised her the operation would have to cease. Upon advice of counsel, Respondent did not stop the operation at that time.
Recommendation That Respondent's licenses be revoked without prejudice so as to permit Respondent or its officers to, in the future, apply for the issuance of a beverage license, if otherwise qualified.
The Issue Whether the Division of Alcoholic Beverages and Tobacco (DABT) should take disciplinary action against respondent or its DABT license for the reasons alleged in the notice to show cause?
Findings Of Fact At all pertinent times, respondent 201 West, Inc. d/b/a Central City/Congo Craig's Safari, has held a quota license, No. 11-00259 4COP, authorizing it to sell alcoholic beverages at 201 West University Avenue, Gainesville, Florida. On August 23, 1991, Craig Cinque, respondent's sole shareholder and officer, executed on respondent's behalf a consent agreement which petitioner accepted and filed on September 6, 1991, resolving administrative proceedings then pending. The consent agreement provides: "The second and third floors now known as 'Congo Craig's' shall not admit customers under 21 years of age for a period of two years " Underaged Patrons Apprehended At eleven o'clock on a crowded Saturday night, September 7, 1991, five DABT officers entered Congo Craig's to check patrons' ages. DABT and other witnesses agreed that the bar had enough staff demanding proof from patrons of their ages as they entered, and that the lighting was adequate for this purpose. The DABT officers checked a number of already admitted patrons' "ID's" themselves, and found a false one that a 20-year-old woman, Amy L. Bruns, whom they saw drinking draft beer, had used to gain admission. The Maryland driver's license described a woman of its bearer's height and weight, but depicted a blonde, not the brunette the officers accosted. Petitioner's Exhibit No. 3. The next time DABT officers, again a contingent of five, discovered an under age patron at Congo Craig's was on October 12, 1991, another Saturday night when DABT and other witnesses agreed that the bar had enough staff checking patrons' ages as they entered, and that the lighting was adequate. Kim M. Chiappara, then 20 years and eight months old, was sharing a pitcher of draft beer with her older sister and others when she was interrogated by the DABT officers that night. A search of her person turned up no false identification. She was not asked whether she had used any, or borrowed her sister's identification, to get by the bouncers. The next Friday night DABT officers apprehended Dari A. Layne, who was born on October 27, 1972, at Congo Craig's shortly before midnight, as she was consuming a mixed drink. The "very good" counterfeit Pennsylvania driver's license she produced when asked for identification has her photograph, but lacks a holographic state stamp on the obverse and has a photocopied reverse, albeit duly laminated. After midnight on the same foray, DABT officers discovered Kim C. Stampler, three months and a week shy of her 21st birthday, holding a clear plastic cup containing a purple liquid. She denied having false identification, but a DABT officer's search turned some up. Also in the early hours of October 19, 1991, DABT officers arrested Christopher Wisniewski, an apparently intoxicated 16-year-old, whose father, also apparently intoxicated, only reluctantly admitted their relationship. Christopher, who was not asked what or whose identification, if any, he had used to get in, had a valid Florida driver's license on his person. Bar Tender Arrested The personnel that respondent assigned to check patrons identification as they entered did not take their stations until five o'clock evenings, an hour after opening. Aware of this, the DABT dispatched Randy Gordon (a stout, older- looking 19-year-old, who has succeeded two out of three times in efforts of this kind at some ten other establishments) to Congo Craig's. He readily gained admission between four and half past on the afternoon of November 8, 1991, without being asked for identification. The first customer of the evening, Randy asked Eric Frauman (who had agreed at the last minute to fill in for another bartender, and who ordinarily worked evenings when the bouncers, not the bartenders, are responsible for checking customers' identification) for a hamburger and a beer. Although he had been told to "card" everybody, Mr. Frauman neglected to ask young Mr. Gordon for identification. The second customer that evening was Ernest Wilson, the special DABT agent responsible for paying five dollars an hour for Mr. Gordon's services. Mr. Wilson took the beer, and Mr. Gordon, who paid for both, got the hamburger, which he described as very good. Mr. Frauman, a graduate student hoping to work as an educational counselor, was arrested and eventually prosecuted criminally. Precautions Taken Respondent is qualified as a responsible vendor, and was so certified during the time DABT made such certifications. All of the 18 employees respondent relies on for "security," those checking patrons' ages at night as well as the daytime bartenders and servers, are current with regard to the courses, tests and update meetings the responsible vendor program requires. Respondent's managers are current on requirements for managers. At weekly meetings of the managers, underage drinking was a regular topic. A book depicting driver's licenses in various jurisdictions is kept on the premises, and respondent's employees who testified seemed knowledgeable on the subject. Employees responsible for checking patrons' ages are told to require, at least of anybody who looks younger than 45, a driver's license, military identification or a passport. Several repeat customers testified that they had invariably been "carded." Although Congo Craig's can lawfully accommodate no more than 925 persons at any one time, the crowd "turns over" as the night wears on. From 35,000 to 45,000 patrons were on the premises between September 7, 1991, and November 18, 1991. During this period, DABT officers made several visits on which they failed to find a single patron under the age of 21. According to Kim Ehrich, who once worked at Congo Craig's, but now works elsewhere, Congo Craig's is probably the "strictest" bar in Gainesville, and does a more thorough job checking identification than the three other bars where she has worked in Gainesville. Willful Breach A week or so before the party at Congo Craig's on October 3, 1991, Charlotte Olsen, then social chairperson for the Phi Sigma Sigma sorority, told somebody at Congo Craig's that some of the party-goers would be under 21 years of age. She offered the sorority's wrist bands to demarcate those old enough to drink legally, but Congo Craig's used its own instead. Mr. Cinque was aware that underaged persons were expected to attend the party scheduled for the second and third floors, and decided to allow it, despite the consent agreement, in order to preserve "good will." About half of the 50 to 60 people at the party were under 21 years of age. He added staff, he testified, in an effort to stymie drinking by underaged attendees. This effort proved dramatically unsuccessful. Past Problems DABT established (in aggravation of penalty only) that respondent has a long history of problems of the kind proven in this case, dating to when respondent's father owned the establishment. When Mr. Cinque worked as a manager, before he became the owner, DABT issued some ten orders to show cause alleging beverage law violations, most of which respondent admitted. Since the younger Mr. Cinque assumed ownership, DABT has filed eight additional orders to show cause, the first seven of which were consolidated and disposed of by the consent agreement accepted by DABT on September 6, 1991.
Recommendation It is, accordingly, RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco suspend respondent's license for ten (10) days. DONE and ENTERED this 10th day of December, 1992, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact Nos. 1-21, 24, 25, 28, 29, 31, 34- 46, 50, 53-56 and 58 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 22 and 23, it is not that easy to make out the eye color of the woman depicted on the license. With respect to petitioner's proposed finding of fact No. 26, Ms. Chiappara did not testify at hearing; it is not clear what sworn statement is meant. With respect to petitioner's proposed finding of fact No. 27, the evidence suggested that she used the counterfeit license to gain entry. With respect to petitioner's proposed findings of fact Nos. 30 and 33, the method of entry was not proven, but there was speculation. With respect to petitioner's proposed finding of fact No. 32, she was drinking a purple beverage. With respect to petitioner's proposed finding of fact No. 47, she so testified. Petitioner's proposed findings of fact Nos. 48, 49 and 59 are properly proposed conclusions of law. Petitioner's proposed findings of fact No. 51 and 52 have been rejected as not established by the weight of the evidence. With respect to petitioner's proposed finding of fact No. 57, the number of allegations is immaterial. Respondent's proposed findings of fact Nos. 1-10 and 14-17 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, Mr. Frauman did not usually work the day shift. With respect to respondent's proposed finding of fact No. 12, time constraints do not account for the failure to honor the consent order. Respondent's proposed finding of fact No. 13 is properly a proposed conclusion of law. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, Florida 32399-1007 Sy Chadroff, Esquire 2700 S. W. 37th Avenue Miami, Florida 33133-2728 Donald D. Conn General Counsel The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Respondent violated Sections 562.11(1)(a), and 561.29(1)(a) (sale of an alcoholic beverage to an underage person) and/or 561.29(1)(a) and 561.17(3) (failure to notify Petitioner licensing agency of the transfer of ten percent or more of any financial interest, change of executive officers or directors or a divestiture or resignation of such interest or position), Florida Statutes, as charged in the Administrative Complaint dated May 4, 2008, and if so, what discipline should be imposed.
Findings Of Fact At all times material, Respondent was licensed under the Florida Beverage Law, by Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is subject to Petitioner’s regulatory jurisdiction, having been issued License Number 72-00497, Series 2-APS, to sell beer and wine in sealed containers for consumption off of the licensed premises only. There is no evidence that Respondent business had ever been previously cited for violation of its license or that Petitioner was investigating the premises on the basis of a complaint or allegation at the time this case arose. Charging Paragraph One 4/ Petitioner’s Special Agent and a Lieutenant, who at all times material was working as Petitioner's Special Agent, addressed “a directed enforcement issue,” the belief that because energy drinks containing alcohol had newly come on the market, there would be sales of them to underage persons. On April 25, 2008, the agents conducted undercover operations at what their paperwork shows to be a minimum of 13 alcoholic beverage retail stores in Perry, Florida, and one store in Steinhatchee, Florida, between 4:35 p.m. and 8:22 p.m. The agents testified that their operation on that date also involved even more stores in several counties. The agents’ paperwork shows they arrived at Respondent’s store at 5:11 p.m. on April 25, 2008, and that they followed standard Agency procedures. On April 25, 2008, the Agency employed M.C. as “Investigative Aide AL0015.” M.C. had worked for the Agency as an undercover operative for almost five years and previously had worked with the aforementioned two agents. On that date, M.C., a female, was 19 years old. On April 25, 2008, the agents gave M.C. a $5.00 bill with which to make “the buy.” She took no other money into Respondent’s store with her. Petitioner’s two agents testified that at 5:11 p.m., while sitting in their car parked in front of Respondent’s store, they witnessed M.C. purchase a “Sparks” from Respondent Meah. Between them, the officers’ testimony included details such as seeing that one other person was in the store when M.C. entered the store; seeing M.C. remove a Sparks can from the cooler; seeing that no conversation took place between M.C. and Respondent Meah; and seeing that no identification was requested by Mr. Meah. M.C. did not relate that anyone else was in the store at the time of her purchase. The agents provided no information as to how they saw so much detail through their car's windshield and the window of the store. Clearly, they could not have heard any conversation at that distance and under those conditions. There also is no evidence of backlighting from inside the store by which the agents could even see Huranur Rashid Meah and M.C. in silhouette so as to observe them talking or not talking. For these reasons, the only competent evidence of what occurred between M.C. and Mr. Meah is the testimony of M.C. and Mr. Meah. M.C. testified that at approximately 5:12 p.m. on April 25, 2008, M.C. presented a can of “Sparks” alcoholic beverage and a package of Orbits gum to Respondent Meah at the cash register; that he did not require identification/proof of age from her; that he did not ask her how old she was; and that he rang up her purchase, giving her $1.92 in change, the can of “Sparks,” and the gum. Huranur Rashid Meah testified that he sold only one can of Sparks at approximately 5:27 p.m. on April 25, 2008, to his long-time customer, Stephanie Lee Wood, née Johnson. At hearing, Ms. Wood presented herself as an adult, without stating her age for the record. She testified that for a significant period of time, she was in Respondent's store every day about the same time and at that time "mostly" bought a Sparks Malt Beverage from Respondent Meah. Ms. Wood is Caucasian, and M.C. is a light-skinned Negro, but they have very similar builds or silhouettes, and could be mistaken for being of a similar age. Upon observation of M.C. at hearing, the undersigned was unable to discern her age, and without testimony would not have guessed she was merely 21 years old on the date of hearing. Her photograph in evidence, taken on April 25, 2008, does not look like an under-age person, or even very much as M.C. looked when she testified at age 21. When M.C. returned from Respondent’s store to the car containing the two agents on April 25, 2009, the agents verified that she had only $1.92 on her; that she had with her a can of “Sparks” and a package of Orbits gum; and that $1.92 was an appropriate remainder for the purchase of a “Sparks” 16 oz. can and a package of Orbits gum, plus tax. Then all three of Petitioner’s operatives filled-out their on-scene paperwork. Before leaving the scene on April 25, 2008, the agents issued to Respondent Meah an Arrest/Notice to Appear/Probable Cause Affidavit. Respondent Meah signed on the bottom of this item, acknowledging receipt thereof. After repeating similar procedures multiple times throughout the remainder of the evening, Petitioner’s agents checked the can of “Sparks” they had bagged at the scene into their headquarters' secure evidence lock-up, and prepared additional paperwork at headquarters. Sparks Malt Beverage apparently contains seven percent alcohol. From differences in the paperwork filled out at the scene, the paperwork from the evidence lock-up, and the oral testimony at hearing, one could guess that the 16-oz. can allegedly purchased by the underage operative from Respondent Meah contained “Sparks Plus Lemonade,” “Sparks Malt Beverage,” or “Sparks” as an energy drink. Ultimately, the State Attorney for Taylor County, in and for the Third Judicial Circuit, issued a “nolle prosequi,” for the associated criminal case, brought against Respondent Meah,5/ and destroyed the “Sparks” can involved. No physical evidence of the can allegedly purchased by M.C. was available to be admitted in evidence during this administrative case’s disputed-fact hearing. Respondent Meah submitted in evidence an automatically printed cash register tape from his store’s single cash register. He claimed this item showed the transaction he had with Ms. Wood on April 25, 2008. The register tape shows that only one sale for the combined amount of $1.69 (the cost of a can of Sparks Malt Beverage), and for $1.19, (the cost of a package of Orbits gum), was rung up together on that date. It further shows that after tax, $1.92 was given in change to the customer. Respondent's cash register tape also shows a sales time of 5:27 p.m. on April 25, 2008. This is the only similar transaction on that date on the whole cash register receipt. Several other transactions on the tape show beer sales at $1.69 each, but no other transactions match the exact amount(s) testified-to by Meah, Wood, and Petitioner's three operatives. Based on the evidence as a whole, there is no persuasive reason to rely on the time posted on this cash register receipt as being reliable; but likewise, there is no clear evidence that the time on the receipt is not reliable. The receipt could be read to show Sparks and Orbits were sold to M.C. or that Ms. Wood purchased the Sparks and something else at that time. It could also be interpreted in a variety of other ways, but clearly, it shows only one sale matching all witnesses' testimony occurred on that date. Charging Paragraph Two On August 8, 2006, Respondent had completed and submitted to Petitioner his application for a beverage license. Section six, on page seven of that application, shows “Abdul Latif Meah” (Respondent Hurunar Rashid Meah’s father) as a 50 percent owner of the corporate Respondent (licensed premises), and further shows Respondent “Harunur Rashid Meah” as a 50 percent owner. It also shows the father as corporate president and Respondent Meah as corporate vice-president. At no time has anyone notified Petitioner that any change in the stock or ownership interest in the licensed facilities has taken place, or that the corporate officers have changed. However, as of November 26, 2007, Respondent Harunur Rashid Meah filed with the Secretary of State, Division of Corporations, papers for “reinstatement” of the Respondent Corporation, and these papers show Harunur Rashid Meah, as the sole owner/president, treasurer/director of Respondent corporation. Respondent Meah's explanation of the foregoing is that: He “missed a payment.” He never dissolved the original corporation, but he needed to get the corporation reinstated or reactivated, which he did as of November 26, 2007, listing only himself on the papers required by the Division of Corporations. Respondent Meah also testified that he had signed all the papers for obtaining the alcoholic beverage license from Petitioner without understanding or reading them, and without appreciating the oath thereon that he signed, promising to tell the truth on those papers, and further promising to comply with the Florida Beverage Law. Among other requirements, the Florida Beverage Law requires notice to Petitioner of the transfer of ten percent or more of any financial interest, change of executive officers or directors, or divestiture or resignation of such interest or position. (See Conclusions of Law.) Petitioner Agency asserts that the contradiction between the August 8, 2006, disclosure of interested parties on Section Six of the Beverage Law license application and the interested parties listed on the November 26, 2007, Division of Corporations documents violates Section 561.17(3), Florida Statutes, because Mr. Meah did not notify the Petitioner Agency as he was required to do, and that the present situation is especially serious because Petitioner had previously warned Respondent of the violation. Special Agent Lastinger’s testimony is credible that he discovered the November 26, 2007, incorporation papers when he was preparing to draft the criminal and administrative charges after the April 25, 2008, undercover operation. However, his testimony that finding those papers after April 25, 2008, reminded him that he had warned Respondent Meah two years before April 25, 2008 (that is, sometime between April and December 2006) that Respondent could be prosecuted for ownership problems, is not credible or persuasive testimony, since the change of ownership, if any, can only be traced to November 2007.6/
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED That the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order that (1) Dismisses Charging Paragraph One, sale of alcoholic beverage to an underage person; (2) Finds Respondent guilty of Charging Paragraph Two, failure to notify Petitioner of the transfer of ten percent or more of any financial interest, or change of executive officers or directors, and fines him $500.00, therefor; and (3) Requires Respondent to notify Petitioner of the current ownership interests and names of executive officers within 30 days of the final order. DONE AND ENTERED this 14th day of September, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2009.
The Issue Whether Respondent failed to use due diligence to prevent the sale of alcoholic beverages to persons under the age of 21 years on September 20, 1989, October 18, 1989 and February 2, 1990, which warrants discipline of its beverage license.
Findings Of Fact At all times material hereto, Respondent Pic-N-Save Central Florida, Inc., doing business as Pic-N-Save Drugs #44, held alcoholic beverage license number 69-00622, Series 2-APS, for the premises located at 940 S.R. 434, Longwood, Seminole County, Florida. Notice of training programs, sponsored by the Division of Alcoholic Beverages and Tobacco, to assist licensees in the training of their employees to maintain compliance with the laws regarding sales of alcoholic beverages to underaged persons is provided to all licensees as a part of their renewal notices. Respondent renewed its license on September 1, 1989, after having received such a notice. On August 10, 1989, Officer Cruce received a complaint about Respondent's licensed establishment from the Altamonte Springs Police Department. The nature of the alleged unlawful activity was the sale of alcoholic beverages to underaged persons. On September 20, 1989, Ms. Nicole Asbury, born March 3, 1971, an 18 year old underaged operative with the Division of Alcoholic Beverages and Tobacco, entered Respondent's licensed premises under the supervision of Officers Elizabeth Doyle and Mark Douglas, Law Enforcement Investigators with the Division of Alcoholic Beverages and Tobacco. Asbury was casually dressed, and did not appear to be a person over 21 years of age. Asbury purchased a sealed six pack of Busch Beer, 12 oz. cans, from one of Respondent's cashier employees on the licensed premises. Respondent's employee, Ms. Patricia Ann Crabtree, neither requested identification from nor asked the age of Asbury. Asbury, while still at the licensed premises, turned the sealed six pack of Busch Beer over to Officers Doyle and Douglas, after the transaction was completed. After having it initialed for identification by Asbury, Doyle and Douglas, Officer Doyle secured the beer in a wooden box in the trunk of her car until the morning of September 21, 1989, when Officer Doyle and Sgt. Blanton placed it in the Division of Alcoholic Beverages and Tobacco evidence vault until its release for the hearing in this case. It was in substantially the same condition as on September 20, 1989. Asbury had never purchased or attempted to purchase an alcoholic beverage in Respondent's establishment prior to September 20, 1989. Following the incident on September 20, 1989, Officer Doyle provided Respondent, via its manager Ms. Roseann Gasparro, with Notice of "Warning and Instructions for Compliance regarding violation(s)" on the licensed premises. The notice advised the Respondent that Crabtree had been apprehended and encouraged Respondent to "immediately contact the District Director, Cpt. Jack Wallace, to discuss the problem". This notice is called a "Step 1 Notice." On October 17, 1989, Respondent conducted a general meeting for all employees of the store to discuss security procedures throughout. The law against the sale of alcoholic beverages to minors was discussed and procedures for checking ID's were covered by Respondent's chief of security. Minerva Trill-Otevo was present and was trained at said meeting. On October 18, 1989, Asbury, age 18, again entered the licensed premises. She was under supervision of Division of Alcoholic Beverages and Tobacco Officers Doyle and Smith and casually dressed, as instructed by the Officers, appearing to be a person under 21 years of age. Asbury went to the back of the store and picked up a sealed six pack of Bud Light Beer. As she approached the front, she asked Ms. Minerva Trillo- Otero, an employee of Respondent if her register was open. Trillo said yes and proceeded to her register and sold the alcoholic beverages to Asbury. Trillo did not at any time during the October 18, 1989, transaction, either request identification from or ask the age of Asbury. After the transaction was completed, Asbury turned the beer over to Officer Doyle. Subsequent to having it marked and tagged for evidence by Asbury and the Officers, Officer Doyle and Sgt. Blandton placed it in the evidence vault, where it remained until its release for the hearing. It was in substantially the same condition as on October 18, 1989. Petitioner issued a "Final Warning" letter on October 23, 1989, urging Respondent to personally address the problem, as a subsequent violation would invoke issuance of a Notice to Show Cause. Respondent was, again, encouraged to immediately make an appointment with the Division's representatives. On February 2, 1990, Officers Doyle and Smith, Law Enforcement Investigators with the Division of Alcoholic Beverages and Tobacco, were being assisted by Melissa Schuckman, an 18 year old (born July 26, 1971), underaged operative. Schuckman and the Officers went to Respondent's licensed premises, where Schuckman purchased a sealed six pack of Coors Light Beer from Ms. Milda Grabnickas, a cashier in Respondent's employ. Ms. Grabnickas did not, at any time during the transaction, ask for identification from or request the age of Ms. Schuckman. Schuckman is, and appeared at the time to be, a person under 21 years of age. After purchasing the beer, as she was exiting the premises, Schuckman turned the beer over to Officer Doyle. Officer Doyle and Ms. Schuckman marked the beer and tagged it for identification, after which, Officer Doyle secured the beer as she had on the two previous occasions, and kept it in the evidence vault of the Division of Alcoholic Beverages and Tobacco until its release for the hearing. It was in substantially the same condition as on February 2, 1990. As a result of the activity which occurred on February 2, 1990, Officer Doyle gave notice to Respondent via its representative, Ms. Gasparro, of the Petitioner's intent "to file administrative charges against your beverage license for violation of Florida Statute Section 562.11 . . . ." Subsequently, the February 13, 1990 Notice to Show Cause at issue in this case was rendered. Pursuant to policy of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, administrative charges, i.e., Notices to Show Cause, are not issued until there are three instances of alleged unlawful sales of alcoholic beverages to underaged persons. Respondent hosted a training program for all employees, conducted by Officer Cruce of the Division of Alcoholic Beverages and Tobacco, on February 26, 1990, at the request of Ms. Gasparro, the store manager. Although the request for the training program was made in late January, the third instance of unlawful activity had already occurred prior to the training program. Despite a relatively high turnover of personnel, Respondent conducts, on the average, two security meetings per year. Compliance with the Florida Beverage license law is but one of several issues addressed at these meetings. It is the Respondent's written policy to discharge an employee for violation of law or company policy. Respondent has signs posted for cashiers and customers regarding the sale of alcoholic beverages to underaged customers at each register which read as follows: "If you were born after today's date 1969 you cannot purchase wine or beer."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be held responsible for failure to use due diligence to prevent the sale of alcoholic beverages to persons under 21 years of age on three occasions in 1989 and 1990; and it is FURTHER RECOMMENDED that Respondent pay a civil penalty in the amount of $1000 and serve a 20-day suspension of its alcoholic beverage license number 69-00622, Series 2-APS. DONE AND ENTERED this 24th day of October, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 24th day of October, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,7,8,9,10,12,13,14,16,17. Rejected as argument or irrelevant: Paragraphs 11,15. Respondent's Proposed Findings of Fact: Accepted in substance: Paragraphs A (in part), C,D,E,F,M,N,O,S. Rejected as not supported by the greater weight of the evidence: Paragraphs B,G,H,K,P.R. Rejected as irrelevant: Paragraphs I,J,L,Q. COPIES FURNISHED: Emily Moore, Esquire Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1007 Joseph Sole Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1007 Simon W. Selber, Esquire Suite 500 Edward Ball Building Jacksonville, FL 32202-4388 Leonard Ivey Director Division of Alcholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000
The Issue Whether Respondent's alleged possession of marijuana and paraphernalia commonly associated with its trafficking and sale justifies suspension or revocation of his Florida teaching certificate.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: I. BAKER holds Florida teaching certificate No. 403108. From 1976 to 1980, he taught fourth and fifth grades at Fessenden Academy, an elementary school located in a rural area of northern Marion County. He was a competent classroom teacher. In 1979, upon recommendation of his school principal, the Marion County School Board granted him continuing contract status--a form of tenure. (Testimony of Broxton, Prehearing Stipulation.) II. In the early part of 1979, BAKER--against the advice of his school principal--became involved in helping operate a small nightclub in Ocala known as the Club Aquarius ("Club"). Although there was no School Board policy against part-time employment by teachers, BAKER's principal advised against becoming involved with the Club because of its poor reputation in the community. However, BAKER's subsequent operation of the Club Aquarius did not adversely affect his teaching performance. (Testimony of Broxton.) During his employment at the Club, several members of the community informed BAKER's school principal that they suspected illicit drugs could be obtained there. In response to his principal's inquiry, BAKER repeatedly denied that anyone at the Club was involved in drug dealing. (Testimony of Broxton.) II. The owners of the Club (Mr. and Mrs. Clyde Howard and Dr. Ernest Lamb 2/ ) applied for and were issued a "2-COP" license by the Department of Business Regulation, Division of Beverage, in 1977. Only beer and wine may be sold under such a license. Possession of distilled liquor on the premises is not allowed. In accordance with the Division's requirements, a "Sketch of the Licensed Premises" was made by the Division of Beverage agent, verified by one of the owners, and attached to the application. The owners also executed an attached affidavit swearing that the sketch was "substantially a true and correct representation of the premises to be licensed and . . . [agreeing] that the place of business, if licensed, may be inspected and searched during business hours . . . without a search warrant . . . ." (P-1.) The sketch depicts those portions of the Club Aquarius building where the license is intended to be in effect-- where routine beverage inspections may be conducted without a search warrant. The owners understood that adjacent property which they controlled and which was accessible by passage from the nightclub was considered part of the licensed premises and subject to warrantless search under the Beverage Law. In order to remove such adjoining property used for residential purposes from the licensed premises (and sketch attached to the application) they understood that the passage way must be permanently sealed. (Testimony of Scroggin; P-1.) The sketch shows the licensed premises of the Club consists of two floors. The first floor includes the main bar, dance floor, kitchen, restrooms, storage room, and package sales area. Stairs on each side of the dance floor lead to the second floor, which consists of restrooms, a balcony overlooking the dance floor, and several additional rooms, one of which contains a wooden bar. The second floor area provides a quiet atmosphere for customers preferring to enjoy drinks and dance floor entertainment from the overlooking balcony. The second floor area permits free passage and is directly connected to the Club's first floor business area. (Testimony of Scroggins, Jones, Imperial; P-1.) III. At approximately 4:45 p.m., on January 24, 1980, Richard Jones and Michael Imperial--Beverage officers employed by the Florida Division of Alcoholic Beverages and Tobacco--began an inspection of the Club Aquarius to determine compliance with the Beverage Laws. Neither officer suspected or had reason to believe that illegal alcohol or illicit drugs might be found on the premises. The last time Agent Jones had inspected the Club to ascertain compliance with the Beverage Laws was in February, 1979; during that inspection, no illegal alcohol or illicit drugs had been found. Agent Imperial had inspected the Club early in 1978, and found nothing out of order. The practice of their Division was to routinely inspect the premises of licensed alcoholic beverage establishments at least once per year. On that afternoon of January 24, 1980, the Beverage agents decided on their own initiative to inspect the Club because they were in the vicinity and had time to conduct a periodic routine inspection. (Testimony of Jones, Imperial, Deen.) After identifying themselves, the two Beverage officers informed BAKER and his brother, Clyde Baker--who were operating the Club--that a routine beverage inspection would be conducted. The officers then inspected the cooler, bar, and surrounding first floor area. After finding some empty cognac bottles in a trash can, Officer Jones informed Clyde Baker that the presence of such bottles on the premises was unlawful. Jones then asked him to show him the upstairs part of the Club. Together they climbed the stairs to the second floor. There, Officer Jones observed that a door, with an "Office" sign on it, was ajar. He entered the room and observed two bottles of distilled liquor in plain view on a bar: that bar is depicted on the "Sketch of Licensed Premises" attached to the beverage license application, infra. After placing Clyde Baker under arrest for allowing distilled liquor on an establishment with a 2-COP license, Officer Jones continued to inspect the room for additional contraband. He searched a chest of drawers and found in the bottom drawer a triple beam balance scale and approximately 40 small paper envelopes commonly referred to as "nickel bags" --paraphernalia commonly used by drug dealers to measure and sell illicit drugs. He also discovered two plastic bags--one, 6" x 6", and another, 10" x 10". The smaller bag contained what appeared to be marijuana; the other contained what appeared to be marijuana residue. Upon discovery of what appeared to be marijuana, Officer Jones exclaimed "marijuana". BAKER, who had just come upstairs with his wife, entered the room and responded: "That's not marijuana, that's just my seeds." (Tr. 43.) Agent Jones immediately arrested BAKER for possession of marijuana, and escorted him downstairs. After resuming his search of the second floor area, Jones entered another room depicted on the "Sketch of Licensed Premises"; there he found a metal can--approximately 10" x 12"--which appeared to contain marijuana residue. (Testimony of Jones; P-1.) The two upstairs rooms where the marijuana and paraphernalia were found were depicted on the beverage license application as a part of the licensed premises. They were unlocked and accessible from the first floor; one room contained a bed, chest of drawers, dresser, clothes, and other personal effects; the other room contained a cot. Both rooms looked as if someone might sleep in them for several hours or an evening. At hearing, the parties stipulated that BAKER sometimes used one of the rooms as his residence. Immediately after the marijuana was found, Clyde Baker stated that he was manager of the Club and responsible for the marijuana and liquor being there. It is concluded that the Club manager exercised dominion and control over the second floor rooms. However, most of the equipment and supplies normally used in the operation of the nightclub, such as beer, wine, coolers, dance floor, and barstools, were located on the first floor. Customers could come and go without entering the second floor area. (Testimony of Jones, Prehearing Stipulation; P-1.) BAKER was subsequently charged with unlawful possession of less than 20 grams of marijuana pursuant to Section 893.13, Florida Statutes. The School Board of Marion County thereupon suspended him from his teaching duties at Fessenden Academy. Crime lab analysis confirmed that the two plastic bags and metal can contained marijuana residue with a total weight of less than 20 grams. Fingerprints on the metal can, and plastic bags were identified as belonging to BAKER. On May 7, 1980, BAKER pled guilty to the charge of possession of less than 20 grams of marijuana. The County Court of Marion County withheld adjudication of guilt and sentenced BAKER to pay $500 in court costs, and suspended a sentence of one year of imprisonment in the county jail upon the condition that BAKER would commit no further criminal offenses for a period of one year. (Testimony of Broxton, Prehearing Stipulation; P-2, P-3.) III. School Board hearings involving BAKER's suspension were televised and his involvement with marijuana has become widely known in the community. Newspapers have published accounts of the criminal charges and their disposition. His arrest and subsequent plea of guilty to the charge of possession of marijuana have gained notoriety and seriously reduced his effectiveness as a teacher for the Marion County School Board. Parents of children at Fessenden Academy would object to BAKER resuming his teaching duties there. Teachers must serve as examples and impart character and moral values to their students. BAKER's involvement with marijuana has interfered with his ability to effectively carry out this important function. (Testimony of Broxton, Jones.)
Conclusions Petitioner has established that Respondent's possession of marijuana and paraphernalia commonly associated with its trafficking and sale violates Section 231.28, Florida Statutes (1979). Permanent revocation of his teaching certificate is warranted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the teaching certificate of Respondent, Clinton Baker, be revoked permanently. DONE AND ORDERED this 23rd day of March, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the clerk of the Division of Administrative Hearings this 23rd day of March, 1981.
The Issue Whether Respondent unlawfully obstructed and/or hindered the inspection of his licensed premises by law enforcement officers and allowed or otherwise condoned the sale of alcoholic beverages in violation of a municipal ordinance concerning the hours of sale and, if so, what disciplinary action is warranted.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with regulating the sale of alcoholic beverages and tobacco in Florida. Respondent, El Greco, Inc., d/b/a El Greco is the holder of alcoholic beverage license number 63-00458, series 4-COP. Respondent's premises is located at 1109 East Main Street in Lakeland, Florida. Respondent's president is John Houvardis (herein Respondent). Petitioner issued two official warnings to Respondent on October 19, 1992. One warning was for a violation of Section 562.41, Florida Statutes, to wit, hindering or obstructing a law enforcement officer from conducting a search of the licensed premises which included locking a law enforcement officer from the premises. The other warning was for an alleged violation of the Lakeland City Ordinance relating to the sale, serving, or consumption of alcoholic beverages after the legal hours of sale. On January 29, 1994, Officer Ed Mingus of the Lakeland Police Department was dispatched to Respondent's premises at approximately 2:29 a.m. Officer Mingus was dispatched to investigate a complaint of "loud noises and sale of alcoholic beverages after hours". When Officer Mingus arrived at Respondent's premises on January 29, 1994, he heard noise coming from the licensed premises and observed several cars in the parking lot. The front door of the licensed premises was locked and Officer Mingus knocked to gain entry. An unidentified person answered the door and Officer Mingus identified himself as a police officer and requested entrance. Within seconds after requesting entrance, Respondent opened the door and allowed Officer Mingus inside the premises. At the time, approximately five employees were cleaning the licensed premises and no alcoholic beverages were observed either being served or consumed by Officer Mingus. Officer Mingus gained entry to the premises within five minutes of first knocking on the door. Officer Mingus suspected that there were other people inside and, in this regard, he asked Respondent if there were, in fact, other people in the licensed premises. Officer Mingus told Respondent of his suspicion that he was violating the hours of sale whereupon Respondent reiterated of his awareness of the ordinance prohibiting sale of alcoholic beverages after hours and insisted that he was not violating the ordinance. Officer Mingus thereafter requested permission from Respondent to search the licensed premises and Respondent consented to a search. Officer Mingus observed approximately nine or ten patrons in the kitchen area. Officer Mingus again reiterated his suspicion that Respondent was violating the municipal laws concerning the hours of sale and gave Respondent a verbal warning that if he was caught violating the ordinance, he would face criminal and administrative sanctions. Detective Denny Phillips of the Lakeland Police Department conducted a sight investigation of Respondent's premises on January 29, 1994, both prior to and while Officer Mingus was inside the licensed premises. Detective Phillips was across the street from the licensed premises with an unobstructed view of the premises on January 29, 1994. On February 26, 1994, Detective Phillips continued his investigation of Respondent's licensed premises. Detective Phillips instructed Officer Ed Cain, also a patrol officer for the Lakeland Police Department, to enter the licensed premises in an undercover capacity. Officer Cain was instructed to attempt to remain in the licensed premises after 2:00 a.m., and to purchase an alcoholic beverage. Officer Cain entered the licensed premises at approximately 12:30 a.m. on February 26, 1994, and observed a crowded lounge consisting mostly of college-aged patrons. Respondent was observed inside the premises. Officer Cain observed a large number of the patrons leaving the premises by 1:00 a.m., and Respondent's employees escorted the remaining patrons from the licensed premises at approximately 1:45 a.m. Officer Cain was not asked to leave the licensed premises and he remained along with approximately four or five other patrons. At approximately 2:10 a.m., Officer Cain ordered a shot of Sambuca, an alcoholic beverage described as a licorice liqueur, from a female employee. Officer Cain placed $2.00 for the beverage on the counter of the bar. Officer Cain observed that same employee placing the money in a bank bag containing the contents of the cash register. Officer Cain is familiar with alcoholic beverages and what they smell and taste like and has consumed alcoholic beverages prior to the evening of February 26, 1994. Officer Cain exited the licensed premises and notified Detective Phillips that he had purchased an alcoholic beverage from an employee after 2:00 a.m. Detective Phillips entered the licensed premises and met with Respondent who was still in the licensed premises. Detective Phillips advised Respondent that undercover officer Cain had purchased an alcoholic beverage from an employee after 2:00 a.m. and that Respondent and the employee would be cited for violation of the municipal ordinance respecting the sale of alcoholic beverages after hours. Respondent usually has extra food left over from functions that he has at the licensed premises from time to time and the employees and others who were in the kitchen area of the licensed premises after 2:00 a.m., on January 29, 1994, were eating some of that extra food.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order imposing a civil penalty against Respondent in the amount of one thousand ($1,000) dollars for the above-referenced violation (sale of an alcoholic beverage after hours). DONE AND ENTERED this 22nd day of November, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 22nd day of November, 1994. APPENDIX TO RECOMMENDED ORDER Rulings on Petitioner's proposed findings of fact: Paragraph 4, rejected, unnecessary and not probative. Paragraph 10, adopted as modified, paragraph 5, Recommended Order. Paragraph 16, adopted as modified, paragraph 8, Recommended Order. Paragraph 20, rejected, contrary to the greater weight of evidence, paragraphs 11 and 12, Recommended Order. Paragraph 27, rejected as being a recitation of testimony, and not proposed findings of fact. COPIES FURNISHED: John M. Houvardas, President El Greco, Inc. 1109 East Main Street Lakeland, Florida 33801 Richard Courtemanche, Jr., Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris, Acting Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792
