The Issue The issue is whether Respondent's alcoholic beverage license should be disciplined on the ground Respondent allegedly violated Section 561.20(2)(a)4., Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, David Carl Boston, operated a restaurant and lounge under the name of Mr. D's Restaurant and Lounge at 2262 Orchard Street, Jacksonville, Florida. Respondent has been issued special restaurant license number 26-0701, series 4COP SRX, by Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent began operating his restaurant and lounge in February 1996, but ceased doing business in July 1997. Respondent's license authorizes him to sell alcoholic beverages on the premises, so long as the restaurant has at least 2,500 square feet of service area, it can seat at least 150 patrons at tables, and at least 51 percent of the gross revenue is derived from the sale of non-alcoholic beverages and food. Respondent was aware of this requirement when he applied for a license. Indeed, item 10 on his application specifically noted these special requirements. Accordingly, Respondent knew, or should have known, that he would need adequate records to show that these requirements were being met. To enforce the above requirements, the Division performs periodic audits of all restaurants holding special licenses. As a part of that audit process, on February 3, 1997, special agent Myers contacted Respondent and requested that he "[p]roduce within 14 days all records including but not limited to all sales receipts, register tapes, invoices for food, alcoholic bev. & non-alcoholic bev., employee time records, all purchase and sales receipts, as required per Florida law." The records were to cover the twelve-month period from February 1996 through January 1997. Respondent acknowledged receiving the Notice to produce the records on February 3, 1997, by signing the Notice in agent Myers' office. Within a few days, Respondent produced a large plastic shopping bag full of records, which has been received in evidence as Petitioner's Exhibit 3. The bag includes receipts for alcoholic beverage purchases and other miscellaneous items, but virtually no receipts for food purchases. There are also so- called "summary sheets," which are handwritten summaries of receipts for food and alcoholic beverage sales for most of the months during the audit period, and cash register tapes which ostensibly support the entries on the summaries. The records are poorly organized and unsophisticated, and they are very difficult for a third person to analyze. Thus, they fail to comport with Division Rule 61A-3.0141(3)1., Florida Administrative Code, which requires that a licensee must "maintain separate records of all purchases and gross retail sales of food and non-alcoholic beverages and all purchases and gross retail sales of alcoholic beverages." Because of the lack of receipts for food purchases, the Division could not establish a percentage of food sales for the audit period. Receipts for food purchases are typically used by the Division as a measuring stick against purchases of alcoholic beverages to determine an allocation of revenues. Despite several subsequent conversations between agent Myers and Respondent in an effort to obtain further clarification and documentation, agent Myers could not establish the appropriate division of revenues between food and alcoholic beverages. On the evening of February 6, 1997, agent Myers visited Respondent's premises between 8:00 p.m. and 9:00 p.m. He found approximately five customers on the premises, all at the bar, and only one employee, who was acting as bartender. The kitchen was shut down, and no food was visible to the naked eye. Agent Myers did notice a bag of frozen chicken wings in a freezer, but no other food was on the shelves or in the refrigerator. He also counted the chairs on the premises and found only 111. On February 18, 1997, agent Myers returned to the premises and found only 107 chairs for patrons. On both visits by agent Myers, Respondent had less seating capacity for food customers than is required under his special license. In addition, contrary to a Division rule requirement, full-course meals were not available at those times even though the restaurant was serving alcoholic beverages. At hearing, Respondent initially contended that he was confused as to the requirements for his license. Given the plain language in item 10 of his application, however, which clearly identifies the restrictions, this explanation has not been accepted. At the same time, it is noted that Respondent offered to voluntarily surrender his license to the Division in July 1997, since he knew that he could not meet the special conditions imposed under the law. The Division refused, however, on the ground an Adminstrative Action was pending against his license. Respondent acknowledged that on both February 7 and 18, 1997, he had less chairs for food customers than is required. Therefore, this portion of the charges has been sustained. In mitigation, he attributed this to his birthday party on one of those evenings and a "talent show" to be held on another evening, although virtually no customers were on the premises on either date when the inspections took place. Respondent has a menu from which customers can order, and he says he also has a daily luncheon buffet. In explaining the lack of food purchase receipts, Respondent claimed that most of his food was purchased from Premier Meats in Jacksonville, Florida, a retailer that caters to small businesses, such as Respondent's. According to a representative of Premier Meats, Nathanial A. Griffin, that firm conducts a "cash and carry" business, with no accounts receivables, and thus it does not invoice its customers. Griffin recalled that Respondent regularly made weekly purchases of chicken wings, gizzards, and white filets, which totaled between $60.00 to $80.00 per week, on average. Assuming this to be true, this equates to approximately $250.00 to $300.00 per month in food purchases from that vendor. The undersigned has independently reviewed the summary sheets, which Respondent says were prepared on a contemporaneous basis from cash register tapes. They reflect that the following revenues were derived from food and alcoholic beverage sales during the months of February 1996 Food through December 1996: Alcohol February 119.70 86.00 March 1200.10 851.85 April 3678.10 731.20 May 3121.27 1170.00 June 3026.90 956.00 July 1401.50 770.04 August 1771.25 1540.70 September 1504.85 2789.32 October 372.25 742.25 November 2941.01 2217.50 December 1376.04 948.50 Total 20513.97 12803.36 If the testimony of witness Giffin is accepted, then Respondent's food purchases from Premier Meats during the eleven month period would be no more than $3000.00. Given the lack of any other food receipts, the large number of receipts for purchases of alcoholic beverages, and the description of the premises on the two occasions when agent Myers inspected the closed kitchen, it is found that the summaries are not credible, due to a lack of underlying documentation. Therefore, it is found that Respondent did not derive at least 51 percent of his gross revenue from sales of food and non-alcoholic beverages, as charged in the Administrative Action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking Respondent's special restaurant license no. 26-07010 for violating Section 561.20(2)(a)4., Florida Statutes, without prejudice to obtain any other type of license, but with prejudice to obtain another SRX special license for five years from the date of the Final Order. Respondent should also have a $1,000.00 administrative fine imposed. DONE AND ENTERED this 24th day of June, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 David Carl Boston 2262 Orchard Street Jacksonville, Florida 32209 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based on the stipulated record described above, I make the following relevant findings of fact: The Petitioner currently holds alcoholic beverage license number 11-74 SRX, series 4-COP. The currently licensed premises include all of the rooms within Petitioner's clubhouse. On or about September 14, 1984, the Petitioner filed an application in which it requested that its licensed premises be extended to include all of the golf course which is adjacent to the clubhouse. The Petitioner's golf course consists of approximately 262 acres. The Petitioner is the owner of and has exclusive possession and control over all of the premises it seeks to have included in its license. The area Petitioner seeks to have included in its license includes other buildings in addition to the clubhouse building. The Petitioner does not hold a golf club license. The Petitioner does not by its application propose to have more than three separate rooms or enclosures in which permanent bars or counters will be located. A licensee is required to designate the licensed premises in a sketch included in or attached to the application for license so that the Division of Alcoholic Beverages and Tobacco can determine the area over which they have regulatory authority. The Division of Alcoholic Beverages and Tobacco has, on some occasions, granted applications for series 4-COP special restaurant licenses which included in the sketch of the licensed premises an uncovered patio area immediately adjacent to the covered portion of the restaurant building, which patio areas were used by the restaurant as an area for service of food and beverages. The Division of Alcoholic Beverages has not presented any reason for denying the Petitioner's application other than the opinion that the existing statutory provisions do not authorize the extension sought by the Petitioner. The Petitioner's alcoholic beverage license was issued pursuant to a special act of the Legislature. Chapter 70-574, Laws of Florida. Following receipt of notice that the Division of Alcoholic Beverages and Tobacco proposed to deny its application, the Petitioner filed a timely request for formal proceedings.
Recommendation For all of the foregoing reasons it is recommended that the Division of Alcoholic Beverages and Tobacco issue a Final Order denying the Petitioner's application to extend the area of its licensed premises. DONE and ORDERED this 25 day of June, 1985, at Tallahassee, Florida. Hearings Hearings MICHAEL M. PARRISH Hearing Officer Division of Administrative The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative this 25th day of June, 1985 COPIES FURNISHED: Sandra Stockwell, Esquire Department of Business Regulation 725 S. Bronough St. Tallahassee, Florida 32301 William Andrews, Esquire P.O. Drawer C Gainesville, Florida 32602 Howard M. Rasmussen Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronough St. Tallahassee, Florida 32301
The Issue The first issue presented is whether Respondent failed to derive at least 51 percent of its gross revenue from sales of food and non-alcoholic beverages during the period of September 1, 1999 through October 31, 1999, contrary to Section 561.20(2)(a)4, Florida Statutes, and Rule 61A-3.0141, Florida Administrative Code. The second issue presented is whether during the period of November 1, 1999, through October 31, 1999, Respondent failed to maintain and/or produce separate records of all purchases and gross retail sales of food and non-alcoholic beverages and all purchases of gross retail sales of alcoholic beverages, to wit: numerous register summaries, Z tapes, contrary to Section 561.20(2)(a)4, Florida Statutes, and Rule 61A-3.0141, Florida Administrative Code. The third issue presented is whether during the period of April 1, 1999, through May 31, 1999, the Respondent failed to maintain and/or produce separate records of all purchases and gross retail sales of food and non-alcoholic beverages and all purchases of gross retail sales of alcoholic beverages, to wit: records provided failed to include cash bar sales, contrary to Section 561.20(2)(a)4, Florida Statutes, and Rule 61-3.0141(3) (a)2, Florida Administrative Code.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the agency charged with the responsibility of administering and enforcing the beverage law of the State. Chapters 561-568, Florida Statutes. At all times material to this proceeding, Respondent, Dawson, Fabrizzi, & Fletcher, Inc., d/b/a C.J. Oscars, operated a licensed restaurant business located at 1502 Miramar Street, Cape Coral, Florida, 33904. The corporate officers are Charles Dawson, president; Albert N. Fabrizzi, Vice-President; and Jack Allen, manager of C. J. Oscars. At all times material to this proceeding, Respondent applied for and was holding a series SRX4COP Alcoholic Beverage License Number 46-04601, which authorized the sale of beer, wine, and liquor for consumption on the licensed premises of the restaurant business. The designation "SRX" identifies a beverage license issued to a business operating [primarily] as a restaurant. Respondent's SRX license authorized the sale of alcoholic beverages on the premises, so long as at lease 51 percent of the gross revenue is derived from the sale of non-alcoholic beverages and food. Respondent was made aware of the 51 to 49 percent gross revenue requirement when Charles Dawson applied for the SRX license. Indeed, the application for the SRX license,1 signed by Charles Dawson, specifically noted these requirements and the necessity to maintain a record of compliance. Accordingly, Charles Dawson knew, or should have known, that he would need purchase and sale records to show, upon demand, the SRX-imposed percentage requirements were met by the licensee. Required statutory and rule compliance are made known to each SRX license holder and are strictly imposed upon each licensee.2 Section 561.20(2)(a)4, Florida Statutes, and Rule 61A-3.0141, Florida Administrative Code, clearly and unequivocally states that records of all purchases and gross retail sales are required to be kept, in legible English language, by each licensee and are made available upon demand by the DABT. To enforce the above requirements, DABT performs periodic audits of all restaurants holding a special SRX license. As a part of that audit process, Special Agents from DABT conduct undercover visits and announced visits, as is its normal custom and practice. Between May and October 1999, Steven Tompkins, District Supervisor, Fort Myers office, DBAT, testified to making undercover visits to C.J. Oscars Restaurant on five to fifteen different occasions. During one or more of those visits, he observed Monday night drink specials where patrons who spent $5.00 on any combination of food/drink were given a plastic cup along with their initial order. Thereafter, and for the remainder of the evening, drinks were sold to cup holders for $0.25 per drink. On several other occasions, he observed money paid at the bar for cash sales of alcoholic drinks go directly into the pocket of the bartender, Mr. Allen. On other occasions, he observed Mr. Allen ring-up money on the bar cash register for both food and alcoholic drinks. On occasions while he sat at the bar, he observed cash sale money rung up on the cash register and the actual receipt of the sale thrown into an ice bucket under the bar. Mr. Tompkins, based upon his 25 years of experience, his observations, personal purchases and knowledge of the business operation, believed that Respondent was selling more alcoholic beverages than food. Ms. Debra Martin initially visited Respondent's restaurant on or about May 19, 1999, and after identifying herself as an agency employee requested access of food purchase records for April and May 1999 and was informed that the requested records were kept off premises.3 Ms. Martin testified that during September 1999 she requested bank statements and guest checks. Respondent could not provide guest check, and informed Ms. Martin that some guest checks were no longer kept. Ms. Martin's request for "Z" tapes went unanswered at that time. The Agency introduced in evidence Respondent's income statement4 for the four-month period, January 1, 1999, through May 31, 1999, which indicated that Respondent sold 51.20 percent alcohol and 48.80 percent food during that four-month period of time. David Cary (Respondent's bookkeeper) testified that C.J. Oscars had opened the business the third week of March 1999, and Respondent's income statement related to the nine-week period from the third week of March 1999 to May 31, 1999. Mr. Cary testified that C.J. Oscars had met its required sale percentages for the eight-week period of April 1, 1999, through May 31, 1999. Jack Allen, III, manager of C.J. Oscars, and Michael Batson, register expert, both testified that register Z tapes record each register transaction in sequential numbering, with the initials G.T., meaning grand total. Both witnesses testified that the register records a running total of the purchases entered and this information is recorded on the Z tapes of each register. Mr. Allen, regarding missing Z tapes, testified that during a new employee training, the trainee would practice register operation by running a Z tape, and he limited a new employee's training sessions to use of only two Z tapes. Mr. Allen concluded his testimony by stating that cash bar receipts were often thrown into a bucket on the bar, and as bar manager he would check the cash receipts against other records each morning, tally totals by pencil, and throw the cash receipts away. Special Agent, Jim Lanza testified that of the Z tapes provided by Respondent, in response to the Agency demands, he organized into charts.5 The charts showed which Z tapes were missing, to wit: September 2, 1999, beginning with Z tape number 134 which was provided; the following sequentially number tapes were missing, 136, 137, 139, 140, 141. For October 1, 1999, beginning with Z tape number 228 which was provided, the following are examples of missing tapes, 229, 230, 232, 233. Mr. Lanza's charts, using the grand total of the beginning lower-numbered Z tape as the base, subtracted the beginning grand total from the next sequential grand total provided, with the resulting difference reflecting unreported sales. From this charting sequence, Mr. Lanza concluded that Respondent's unreported sales from missing Z tapes was $65,133.08 for the months of September 2, 1999, through October 31, 1999. Charles Dawson testified in agreement with the testimony of his bar manager, Mr. Allen, regarding the use of Z tapes, the training of new employees, and cash receipts having been placed in a water bucket on the bar and later being thrown away. Mr. Dawson's additional reasons for the missing Z tapes, while questionable, demonstrated a persistent and recurring pattern of a lack of diligence or a practiced disregard for consequences. According to Mr. Dawson, he read and signed the SRX license affidavit, but now claims he did not understand, nor did anyone explain to him what "specific type of records" he was required to keep.6 As to cash bar sales receipts, Mr. Dawson testified that they were added together with other sales, stapled to the guest checks for a running total, compared with the Z tapes totals and cash in register totals, and then thrown away. Regarding the missing Z tapes, Mr. Dawson testified that one of his registers had broken down, and was repaired and when back in operation, the Z tape numbering system was sequentially misaligned and returned to zero; thus, the missing Z tapes. On another occasion, lighting struck a register causing it to jam and render two or more Z tapes unreadable; they were thrown away. During the few days the registers were down, either he or Mr. Allen would go to each register drawer, at the end of the business evening, take the cash totals, and give that information to Mr. David Cary, bookkeeper. Charles Dawson, owner, knew of the mandatory requirement to maintain records of all gross sales of food and non-alcoholic beverages, separate records of all gross purchases of alcoholic purchases, and separate records of all gross retail sales of alcoholic beverages. Charles Dawson, by his actual participation in the wrongful destruction of records, permitted, approved, and condoned the continuous destruction by Ray Allen of cash sale receipts of alcoholic beverages and the destruction of register Z tapes resulting from the sale of food and alcoholic beverages by C. J. Oscars.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of the penalty guidelines in Rule 61A-2.022, Florida Administrative Code, it is recommended that the Department of Business and Professional Regulation enter a final order revoking Respondent's Alcohol Beverage License SRX4COP Number 46-04601. DONE AND ENTERED this 13th day of April 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2001.
Findings Of Fact At all times pertinent to the issues herein, alcoholic beverage license No. 26-01841, Series No. 2-APS, was issued to Respondents, Frank D. and Estella S. Ryers, for their establishment known as the Big B Restaurant, located at 5570 Avenue B, Jacksonville, Florida. A 2-APS license permits the package sale only of beer and wine. It does not permit the consumption on the premises of beer, wine, or liquor. On March 27, 1983, Investigator Wendell M. Reeves conducted an undercover operation directed against the Big B Restaurant predicated upon reports received by Petitioner that Respondents were conducting sales of alcoholic beverages not permitted by the license at the licensed premises. In furtherance of that operation, Reeves utilized another beverage agent, Van Young, in an undercover capacity to make a controlled buy of an improperly sold substance from the licensees. Prior to sending Young into the licensed premises, Reeves searched Young to ensure that he, Young, had no alcoholic beverage or money in his possession. Satisfying himself that that was the case, he gave Young $15 in U.S. currency and sent him into the licensed premises to make the buy. Young entered the Big B Restaurant at 1:00 p.m. and came out 17 minutes later. When he came out of the licensed premises, Young came over to where Reeves was waiting and turned over to him a sealed 200 ml bottle of Fleishman's Gin. Young told Reeves that he had purchased the gin in the licensed premises from a black male whose description matched that of Respondent Frank D. Byers which is contained on Respondent's application for license. Respondent Frank Byers denies making the sale. On balance, however, there is little doubt it was Respondent who made the sale, especially in light of the fact that this same licensee was issued a letter of warning by the Division of Alcoholic Beverages and Tobacco in October 1981 for possession on the premises of an alcoholic beverage not permitted to be sold under the license. Young also stated that he purchased a second bottle which he consumed on the premises with another black male. However, this evidence was in the form of Reeves' report of what was told him by Young. As such, it is clearly hearsay and can be used only to corroborate or explain other admissible evidence. Therefore, as to the allegation regarding the consumption of the gin on the premises, since it is the only evidence of that offense, it cannot be used to support a finding of fact on that allegation. It may, however, be used to explain how Young got the bottle with which he was seen by Reeves to come out of the licensed premises. Several days later, on March 30, 1983, Reeves again entered the licensed premises, where he told Respondent Estella Byers he was there to inspect the site. She opened the cooler for him and he inspected the beer inside and the cigarettes. While he was doing that, however, he noticed her take a cloth towel and drape it over something behind the bar. He went over to it, removed the towel, and found that it covered a bottle of Schenley's gin. Mrs. Byers immediately said she thought it was her husband's, Respondent Frank Byers, but another individual present at the time, Sharon Thomas, said she had taken it from her brother, who was drunk, and had put it there. Again, as to Ms. Thomas' comments, they, too, are hearsay and can only serve here to explain or corroborate other admissible evidence. In any case, after Ms. Thomas made her comment, she was immediately contradicted by Respondent Estella Byers, who again indicated she thought the bottle was her husband's. In any case, at the hearing, Respondent Estella Byers contended she did not know it was there. On balance, Mr. Reeves' testimony that she covered it with a towel while he was inspecting and the evidence of the prior warning for an identical offense tend to indicate she did know it was there and that it was unlawful for it to be there. There is, however, no evidence to establish sufficiently the reason for its being there.
Findings Of Fact On or about August 12, 1986, Appellants, Ronald and Philip Hitchcock, through their authorized representative, Carlos Yepes of Cay Oil Enterprises, Inc., applied to the Planning And Zoning Board for conditional alcoholic beverage sales use of their general commercial zoned property at the corner of Belcher Road and Coachman Road in Clearwater. Specifically, they applied to enable the prospective buyer of their property, Cay Oil, to use a State I-APS beverage license (package sale of beer only for consumption off-premises) in connection with Cay Oil's planned convenience food and gasoline store, Choice Food Mart. Cay Oil obtained the license by transfer from a previous tenant of a portion of the property, Jewel T Discount Grocery. The Planning And Zoning Board conducted a public hearing on the application on September 2, 1986. At the conclusion of the hearing, the Board voted unanimously (with one abstention) to deny the application. At the public hearing, there was ample competent, substantial evidence that Appellants' property is within 500 feet of at least one church and school. In fact, the closest church and school is on property immediately adjacent to Appellants' property. There also was ample competent, substantial evidence on which the Board could have found that conditional 1-APS use would not be compatible with the rest of the neighborhood. Appellants' notice of appeal essentially restates the presentation it made before the Board; likewise, Appellants' presentation at the appeal hearing essentially repeated the presentation to the Board.
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Mehreen Enterprises, Inc., held license number 23-21339, Series 2APS, authorizing it to sell alcoholic beverages on the premises of a business known as Super Stop Food Store #2, located at 9260 Hammocks Boulevard, Miami, Dade County, Florida (hereinafter "the licensed premises"). Syed Abdul Qadir (Qadir) was, and is, a shareholder of the Respondent corporation, and the manager of the licenses premises.1 On March 1, 1997, at or about 8:00 p.m., Richard Stangl (Richard), date of birth December 7, 1976, and 20 years of age at the time, entered the licensed premises, retrieved a 32 ounce bottle of Red Dog beer from a vertical cooler, and proceeded to the counter where he paid Qadir for the beer and left the premises. At the time, Qadir did not request to see any identification as proof of legal age, nor did he ask Richard his age. As Richard drove away from the store he was intercepted by the police, who were engaged in an investigation of the premises. Confirming Richard's age and the possession of an alcoholic beverage,2 Richard was returned to the licensed premises where he and Qadir were placed under arrest.3 Respondent does not dispute that the foregoing events occurred. Rather, it contends that it took reasonable precautions to avoid serving an underaged person and should not, therefore, be penalized for the subject sale. Given the proof, Respondent's contention has merit. While Richard was less than 21 years of age at the time, the proof demonstrated that his appearance was such that an ordinary prudent person would believe he was of legal age to purchase alcoholic beverages.4 The proof further demonstrates that Richard frequented the licensed premises on a regular basis over a three month period, and that he routinely purchased (approximately 30 times) alcoholic beverages during that period. Initially Qadir inquired as to his age, which Richard stated to be 21, and requested identification, which Richard presented in the form of a driver's license consistent with that age. Qadir continued to request identification for a time but, as Richard appeared regularly at the store, and began to complain, he ceased requesting identification. Given the repeated assurances by word and identification card that Qadir had received regarding Richard's apparent age, Qadir's failure to continue to request identification was not unreasonable.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Action. DONE AND ENTERED this 18th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1997.
The Issue Should Petitioner discipline Respondent's Series 2-APS alcoholic beverage license for allegedly failing to disclose the direct interest in the beverage license held by M. Kashani, for falsely swearing to a material statement in the application for Respondent's alcoholic beverage license, and for allowing an employee to exchange U.S.D.A. food coupons for cash?
Findings Of Fact Effective October 12, 1993, the alcoholic beverage license number 52- 01222, Series 2-APS, held by Mohammad Kashani, d/b/a Quick Serv, for the location at 2066 West Silver Springs Boulevard, Ocala, Marion County, Florida, was revoked by Petitioner. The basis for the revocation concerned Mr. Kashani's conviction of criminal possession of a controlled substance in New York State, which disqualified Mr. Kashani from holding a Florida alcoholic beverage license. On October 13, 1993, Petitioner received Respondent's application for an alcoholic beverage license, Series 2-APS, for the license establishment known as Quick Serv, located at 2066 West Silver Springs Boulevard, Ocala, Marion County, Florida. When Respondent made the application, she was unaware that the alcoholic beverage license number 52-01222, Series 2-APS, held by Mr. Kashani, had been subject to investigation and revocation. Respondent first learned of the revocation of Mr. Kashani's alcoholic beverage license on the hearing date. Although Respondent was unaware of the investigation of the alcoholic beverage license held by Mr. Kashani and the revocation of that license for a criminal offense, Respondent was aware that a different pending criminal case for which Mr. Kashani stood accused might effect Mr. Kashani's ability to continue to hold the alcoholic beverage license for the establishment at West Silver Springs Boulevard. When Respondent submitted the application for the alcoholic beverage license, she had been living with Mr. Kashani, although they were not married. The couple had children together at the time the application was made. Subsequently, Respondent and Mr. Kashani were married and had been married for approximately two and one-half years when the hearing was held. Before Respondent made the application for the beverage license, she had worked at the establishment at 2066 West Silver Springs Boulevard, while Mr. Kashani was in jail awaiting trial for alleged violation of laws unrelated to the New York offense. Mr. Kashani's predicament concerning the pending criminal trial led Respondent to discuss with him the possibility that Respondent would take over the business at 2066 West Silver Springs Boulevard as a means to support Respondent and her children should Mr. Kashani be incarcerated following his trial. It took a period of time for Respondent to obtain the necessary information to complete the application for the alcoholic beverage license. Before the application was submitted, Mr. Kashani had been released from jail on bond pending his trial. The trial was conducted on January 3, 1994, and Mr. Kashani was found not guilty. Respondent was issued alcoholic beverage license number 52-01290, Series 2-APS, to do business as Quick Serv at the West Silver Springs Boulevard location. It is that license which is subject to administrative discipline in this case. In preparing the sworn application, Petitioner sought the advice of an attorney. She also entered into certain business arrangements with Mr. Kashani, which were disclosed in her application for alcoholic beverage license. Among the arrangements between Respondent and Mr. Kashani, which were entered into when Mr. Kashani was still incarcerated, awaiting trial, was a transfer of the assets of the Quick Serv business and the execution of a lease between Respondent and Mr. Kashani, in which Respondent was the lessee for the property which Mr. Kashani owned, where the business was located on West Silver Springs Boulevard. Mr. Kashani is the owner of the property upon which the Quick Serv establishment is located and is responsible for the payment of a mortgage on the property and the property taxes for that parcel. In particular, on September 21, 1993, while Mr. Kashani was incarcerated, a Bill of Sale, selling to Respondent all merchandise, inventory and store equipment at the Quick Serv, for a nominal consideration, $10.00, was executed by Mr. Kashani. A lease was entered into on that date for the period of September 1, 1993 through March 31, 1996. The rental amount contemplated by the lease was $400.00 per month. Under the terms of the lease, the Respondent was required to pay for all water, gas, electricity, and other utilities associated with the licensed premises. Finally, on September 21, 1993, an assignment was made from Mr. Kashani to Respondent of the Quick Serv telephone numbers and trade name. In taking over the Quick Serv business, Respondent opened a business bank account. This account was opened before Respondent obtained the alcoholic beverage license. In its details, the application which Respondent submitted to obtain her alcoholic beverage license disclosed that she had invested no funds, personal or otherwise, in Quick Serv. The application disclosed the existence of the Bill of Sale dated September 21, 1993. It disclosed the existence of the lease between Respondent and Mr. Kashani. In the application, Respondent did not specifically disclose the name of Mr. Kashani, or any other person, as having an interest, directly or indirectly. The application also reminded the applicant to list the names of persons whose interest was that of lender, joint account holder, or co-signer. Nothing was stated in response to that item. The application disclosed that the basis for purchasing the business was a "gift". No money was disclosed as having been invested by the Respondent. With the application, Respondent revealed the assignment of the Quick Serv telephone numbers and trade name to her from Mr. Kashani. In the application, Respondent indicated that she was the 100 percent owner of any stock in the business, notwithstanding that there was no indication that the business had been incorporated. This information was imparted under the application section having to do with the disclosure of liens, titles and interest of all officers, directors, stockholders, limited partners and general partners of the business for which the license was sought. Although Respondent did not specify in the section designed to reveal the names and types of interest that Mr. Kashani would have in the Quick Serv business, either directly or indirectly, the other information concerning his association with the business that has been described did identify Mr. Kashani's involvement with the business, as contributing the assets for operating Quick Serv and remaining as landlord for the property under the lease terms. Contrary to the business arrangements which have been described between Respondent and Mr. Kashani, the contract for electric services at Quick Serv has always been in Mr. Kashani's name at pertinent times, as has the contract for telephone services at that establishment. Mr. Kashani holds a membership in Sam's Club as a primary member, issued in the name of Quick Serv on October 21, 1993. On or about February 18, 1994, Mr. Kashani's name was added to the signature card for the bank account which Respondent had opened for the Quick Serv business. That signature authorizes Mr. Kashani to draw checks on the bank account. He has drawn checks on the bank account to pay for, among other items, the purchase of inventory for the Quick Serv business from Sam's Club. Generally, Mr. Kashani has routinely written checks on the bank account to purchase inventory for the Quick Serv business. In addition, Mr. Kashani has written checks on the Quick Serv bank account opened by Respondent to pay his real estate mortgage for the Quick Serv location. While Mr. Kashani has made mortgage payments from the bank account, Respondent has never made lease payments to Mr. Kashani, in accordance with the lease between Respondent and Mr. Kashani. Following his trial on January 3, 1994, Mr. Kashani began to perform duties in operating the Quick Serv business. His association was not that of an employee who was compensated for his services, nor under terms of a managerial contract with Respondent. As Respondent describes it, Mr. Kashani has been "helping me out". The duties that Mr. Kashani has performed in the store are the same as Respondent has performed. This includes stocking and operating the cash register. Mr. Kashani's involvement extends to advising Respondent of what to do in the business. Respondent described this arrangement as one in which "he knows better business than I do". After Respondent obtained the alcoholic beverage license, Petitioner's investigator has been to the Quick Serv on more than 10 occasions. When the visits were made Mr. Kashani was usually behind the counter working. Respondent was only seen on one occasion. The United States Department of Agriculture (U.S.D.A.) instituted an investigation of the Quick Serv store during the period of December 8, 1994 through August 1, 1995 to ascertain whether food stamps were being improperly exchanged for cash at that location. To achieve its purpose, its investigator, George Carson, employed the assistance of an investigative aide, George Evans. Essentially, Mr. Carson gave Mr. Evans U.S.D.A. food stamps to be presented to an employee at Quick Serv, in exchange for cash, if the employee was willing. On December 8, 1994, Mr. Evans entered the Quick Serv and spoke to Mr. Kashani. Mr. Evans asked Mr. Kashani if Mr. Kashani wanted to buy any food stamps. Mr. Kashani replied that he did not know Mr. Evans. Another man was in the store. Mr. Kashani called out to that individual and asked the unidentified man, if he, the unidentified person, knew Mr. Evans. The response was "yes". Mr. Kashani then asked for the food stamps. Mr. Evans handed them to him. Mr. Kashani obtained money from his pocket and from an undisclosed location within the store and gave cash in exchange for the food stamps. The food stamp value was $80.00. The cash exchanged was $40.00. On March 10, 1995, Mr. Evans returned to the Quick Serv. On this occasion, he had $195.00 in food stamps. Once in the store, Mr. Evans addressed Mr. Kashani and asked him if he was buying food stamps again. Mr. Kashani said that he did not know him. Mr. Evans told him that he did know him and that he had bought "some" from Mr. Kashani a while back, after which Mr. Evans handed Mr. Kashani $195.00 in food stamps. In turn, Mr. Kashani gave Mr. Evans $95.00 in cash. The $95.00 was obtained from Mr. Kashani's pocket. On August 1, 1995, Mr. Evans returned to the store. He again asked Mr. Kashani if he would buy food stamps. Mr. Kashani told Mr. Evans that he did not know him. Mr. Evans replied "you bought some from me a couple of weeks ago, three or four times", to which Mr. Kashani replied "I was just testing you". Mr. Evans then handed Mr. Kashani $325.00 in food stamps, and Mr. Kashani gave Mr. Evans $150.00 in cash from the cash register in exchange. Respondent was not in attendance on any of the occasions at which food stamps were exchanged for cash.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the amended administrative action against Respondent. DONE AND ENTERED this 19th day of July, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 19th day of July, 1996. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the proposed findings of fact of the parties. Petitioner's Proposed Findings of Fact 1-4. Subordinate to facts found. With the exception of paragraph 5(e), subordinate to facts found. The reference in paragraph 5(e) to information about spouses does not pertain, in that, at the time the application was made, Respondent and Mr. Kashani were not married. Subordinate to facts found. With the exception of the last sentence in paragraph 7, subordinate to facts found. The last sentence is not supported by competent evidence. 8-15. With the exception of the reference to a traffic ticket being paid by check, subordinate to facts found. The reference to the traffic ticket is not supported by competent evidence. Subordinate to facts found. Not supported by competent evidence. 18-22. Subordinate to facts found. Respondent's Proposed Findings of Fact 1-11. Subordinate to facts found. 12. Not necessary to the resolution of the dispute. 13-16. Subordinate to facts found. 17-18. Rejected, in the suggestion that Mr. Kashani did not have an interest, either direct or indirect, in the business. 19. Not necessary to the resolution of the dispute. 20-22. Subordinate to facts found. 23. Subordinate to facts found, with the exception that the date should read January 3, 1994. 24-28. Subordinate to facts found. Not supported by competent evidence. Subordinate to facts found. Contrary to facts found. Subordinate to facts found. 33-34. Constitute conclusions of law. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Donna M. Meek, Esquire 20 South Main Street Gainesville, Florida 32601 John J. Harris, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not on or about November 1, 1976, Stella Lee Hill, licensed under the beverage laws, and/or her agent, servant, or employee, to-wit: Jacob Hill, did sell or cause to be sold or delivered intoxicating liquors, wines, or beer to-wit: one-half pint labeled Seagrams Extra Dry Gin, in Santa Rosa County, that which has voted against the sale of such intoxicating liquors, wines or beer, contrary to Section 568.02, F.S.
Findings Of Fact Stella Lee Hill is the holder of license no. 67-129, series 1-COP, held with the State of Florida, Division of Beverage. Stella Lee Hill has held this license from October 1, 1976, up to and including the date of hearing. This license is held to operate at Munson Highway, Route 6, Box 190, Milton, Florida, and to trade as Vonnie Branch Tip Inn, the trade name of the licensed premises. A series 1-COP license is a license which entitles the licensee to make beer sales for consumption on the premises. Santa Rosa County, Florida through its voters has determined that only beer may be sold in that county, of a weight 3.2% alcoholic content. No other form of alcoholic beverages may be sold in Santa Rosa County. On November 1, 1976, around 7:00 p.m., Central Standard Time, agent Roy Cotton, of the State of Florida, Division of Beverage met with an undercover agent, one Robert Lewis. Robert Lewis was not shown to be a member of any law enforcement agency. The meeting took place on the east side of Milton, Florida, in an open field. At that time a discussion was entered into between Cotton and Lewis on the subject of making an alcoholic beverage purchase of unauthorized alcoholic beverages, at the Respondent's licensed premises. Cotton search Lewis to make sure that he did not have any money or alcoholic beverages on his person and also search Lewis' automobile to insure that no alcoholic beverage was in that automobile. After making such search, Cotton provided Lewis with $5.00 in United States currency to make the aforementioned purchase. Lewis drove to the licensed premises in one automobile and Cotton in another. Cotton stationed himself so that he could see the licensed premises and the surrounding buildings, but did not go in the licensed premises. Lewis entered the licensed premises and while in the licensed premises spoke with the brother of the licensee, one Jacob Hill and asked for a half pint bottle of liquor. Jacob Hill left the licensed premises and went to an adjacent house which was the home of the mother of the licensee and returned to the licensed premises and presented Lewis with a one half pint bottle of Seagrams Extra Dry Gin. Lewis paid Jacob Hill for the half pint bottle of Seagrams Extra Dry Gin, a liquor containing more than 3.2% alcohol by weight, and left the premises. This sale was consummated in the presence of Stella Lee Hill, the licensee. The facts as established, show that intoxicating liquors were sold by an agent of the Respondent, to-wit: Jacob Hill, in a county where the voters had decided against the sale of specific intoxicating liquors. Therefore, the Respondent has violated Section 568.02, F.S.
Recommendation It is recommended that the license no. 67-129, series 1-COP, held by the Respondent, Stella Lee Hill, be suspended for a period of 30 days. DONE AND ENTERED this 13th day of June 1977 in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Charles T. Collett, Esquire Division of Beverage The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Stella Lee Hill Munson Highway Route 6, Box 190 Milton, Florida
Findings Of Fact Wedgewood is the holder of Division of Beverage license number 62-1626, 4-COP SRX, which authorized Wedgewood to sell alcoholic beverages for consumption on the premises at retail only. Wedgewood is advertised as a resort with private villas, hotel rooms, two restaurants and a disco with live entertainment. An ad published on page 81 of Cruise Magazine, Volume 3, No. 4, however, makes no reference to any of the facilities except the appearance of an entertainment group known as The Village People. On the other hand, an ad in the November 19, 1977, issue of Florida Alive gives equal emphasis to hotel facilities, restaurant facilities and disco facilities. Wedgewood has promulgated and distributed a flyer advertising daily happy hour with special prices for alcoholic beverages. That same flyer advertises the sale of sandwiches and emphasizes that dining facilities are available nightly. Wedgewood has produced two menus. One appears to be a lunch menu which contains a soup, fifteen different sandwiches, three salads, five hot entrees, french fries, six desserts and beverages without reference to alcoholic beverages. Wedgewood has also produced a dinner menu containing appetizers, soups, five seafood entrees, five beef entrees, and two fowl entrees, with soup, salad and an assortment of desserts. The only reference to alcoholic beverages contained in the menu suggests that one's favorite after dinner drink is available. Wedgewood has two restaurants with complete facilities for serving and preparing for the requisite number of full course meals. For the period, June 15, 1977, through January 30, 1978, Wedgewood shows gross revenues of $162,685.00, composed of $22,991.00 for food sales and $139,694.00 for alcoholic beverage sales. These figures indicate that Wedgewood has derived approximately 14 percent of its total revenue from food services. One of the criteria contained in Rule 7A-3.15, Florida Administrative Code, used in determining whether or not the holder of a restaurant license is a bona fide restaurant is: The restaurant must derive at least 51 percent of its gross revenue from the sale of food and non-alcoholic beverages. The 51 percent shall be determined by taking the average monthly gross revenue of the sale of food and non-alcoholic beverages over a period of any calendar year. DABT urges that the gross receipts evidence of the approximate seven month period should be used in making a determination that the licensee is not a bona fide restaurant. However, DABT is arguing against its own regulations. Unless the revenues are analyzed over a calendar year as provided in the Rule, the percentage of revenue from the sale of food and non-alcoholic beverages may not properly be used as a criterion. Accordingly, the evidence as to the revenues will not be considered in the determination of the instant case. Wedgewood has advertised and held out to the public to be a place where meals are prepared and served, as evidenced by its comprehensive menus. The evidence shows that space is provided with adequate kitchen and dining room equipment and that there are employed sufficient numbers and kinds of employees for preparing, cooking and serving meals for guests. While Wedgewood obviously engages in the sale of alcoholic beverages, there is insufficient evidence to establish that such sale is subordinate to the sale of food. Equal advertising space is given to both functions and accordingly, it is found, as a matter of fact, that the principal business of the restaurant is to cater to and serve full course bona fide meals to the general public and the primary operation of the restaurant is for the preparation and cooking and serving of meals and not for the sale of alcoholic beverages.
The Issue Whether or not on or about October 31, 1975, the Respondents, Bossie Mae and Willie Mae Browdy, licensed under the beverage laws as a package store, and/or their agent, servant or employee, to wit: Bossie Mae Browdy did allow or permit the consumption of alcoholic beverages on their licensed premises, contrary to Rule 7A-3.05, Florida Administrative Code. Whether or not on or about November 1, 1975, the Respondents, Bossie Mae and Willie Mae Browdy, licensed under the beverage laws as Browdy's Mini Market with a 2-APS license to wit: Bossie Mae Browdy did allow gambling (card) on the licensed premises, contrary to Section 849.08, Florida Statutes and in violation of Section 561.29, Florida Statutes.
Findings Of Fact At present, and on October 31, 1975 and November 1, 1975, the Respondents, Bossie Mae and Willie Mae Browdy are and were the holders of a beverage license with the State of Florida, Division of Beverage number 69-299, 2-APS. On October 31, 1975, Eugene Fogel, a Division of Beverage enforcement officer entered the premises licensed by the State of Florida, Division of Beverage, which was operated by the Respondents at Avenue B on Chuluota Road, Oviedo, Florida. While in the store he observed an unknown black female consuming a beverage which was marked Millers High-Life. This consumption was taking place in the presence of the Respondent, Bossie Mae Browdy, and in the course of the consumption a conversation was taking place between the unknown black female and Bossie Mae Browdy. The bottle which Officer Fogel observed was marked with identifying information which the officer based upon his experience, felt indicated that it contained an alcoholic beverage. On November 1, 1975, officer Fogel returned to the licensed premises of the Respondents and entered into a card game in a porch like area which is immediately at the front of the store and connected to the store. This card game was between Fogel and several black males who were participating in a card game when he approached. The game took place over 45 minutes and money was exchanged at 25 cents a game for the winner, for a total amount of approximately $2.00. During the course of the game, Bossie Mae Browdy came to the door and looked out at the card game being played.
Recommendation It is recommended that the Respondents, Bossie Mae and Willie Mae Browdy, be fined in the amount of $100 for the offense as established through this administrative complaint. DONE and ENTERED this 24th day of November, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Curtis, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Carl Thompson, Esquire 25 South Magnolia Avenue Orlando, Florida 32801
