Findings Of Fact The Parties. Petitioner, the Department of Business Regulation and Professional Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter referred to as the "Division"), is an agency of the State of Florida charged with responsibility for enforcing Chapter 561, Florida Statutes. The Respondent is Walter Falcon, d/b/a Falcons JVJ General Store (hereinafter referred to as "Falcons"). At all times relevant to this proceeding Mr. Falcon held Florida alcoholic beverage license number 64-00453, series 2-COP (hereinafter referred to as the "License"). The License authorized Mr. Falcon to sell and possess alcoholic beverages on premises of Falcon's located at 1088 Highway 20, Interlachen, Putnam County, Florida. The Putnam County Sheriffs Office Investigation of Falcon's. In October of 1993, the Putnam County Sheriffs Office initiated an investigation of alleged sales of alcoholic beverages to persons under the age of 21 years at Falcons. On October 14, 19, 20 and 28, 1993 Pollyanna Alessi entered Falcons in furtherance of the Putnam County Sheriffs Office investigation. Ms. Alessi's date of birth is March 13, 1973. At all times relevant to this proceeding, Ms. Alessi was 20 years old. Ms. Alessi's appearance in October of 1993 was not such that an ordinary prudent person would believe her to be of legal age. On October 14, 1993: Ms. Alessi entered Falcon's and purchased a six-pack of Miller Genuine Draft beer. Petitioner's exhibit 2. Mr. Falcon sold the beer to Ms. Alessi. Mr. Falcon did not ask Ms. Alessi for any identification or other proof of age. Mr. Falcon also did not ask Ms. Alessi her age. On October 19, 1993: Ms. Alessi entered Falcon's and purchased a six-pack of Miller Genuine Draft beer. Petitioner's exhibit 3. Mr. Falcon sold the beer to Ms. Alessi. Mr. Falcon did not ask Ms. Alessi for any identification or other proof of age. Mr. Falcon also did not ask Ms. Alessi her age. On October 20, 1993: Ms. Alessi entered Falcon's and purchased one bottle of Miller Genuine Draft beer. Petitioner's exhibit 4. Mr. Falcon sold the beer to Ms. Alessi. Mr. Falcon did not ask Ms. Alessi for any identification or other proof of age. Mr. Falcon also did not ask Ms. Alessi her age. On October 28, 1993: Ms. Alessi entered Falcon's and purchased a six-pack of Coors beer. Petitioner's exhibit 5. Mr. Falcon sold the beer to Ms. Alessi. Mr. Falcon did not ask Ms. Alessi for any identification or other proof of age. Mr. Falcon also did not ask Ms. Alessi her age. The products purchased by Ms. Alessi were clearly labelled as beer, an alcoholic beverage, and were identified as alcoholic beverages. The Division's Investigation of Falcon's. On October 29, 1993, Chris LaBelle, while in the employ of the Division, participated in the investigation of alleged sales of alcoholic beverages to persons under the age of 21 years at Falcons. Ms. LaBelle's date of birth is April 29, 1974. At all times relevant to this proceeding, Ms. LaBelle was 19 years old. Ms. LaBelle's appearance on October 29, 1993 was not such that an ordinary prudent person would believe her to be of legal age. On October 29, 1993: Ms. LaBelle entered Falcon's and purchased a six-pack of Michelob Light beer. Petitioner's exhibit 7. Mr. Falcon sold the beer to Ms. LaBelle. Mr. Falcon did not ask Ms. LaBelle for any identification or other proof of age. Mr. Falcon also did not ask Ms. LaBelle her age. The products purchased by Ms. LaBelle were clearly labelled as beer, an alcoholic beverage, and were identified as alcoholic beverages.
Recommendation Based 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 finding that Walter Falcon, d/b/a Falcon's JVJ General Store, is guilty of the violations of Section 562.11(1)(a), Florida Statutes, alleged in the Administrative Action of December 17, 1993. It is further RECOMMENDED that Walter Falcon, d/b/a Falcon's JVJ General Store, alcoholic beverage license number 64-0453, series 2-COP be revoked. DONE AND ENTERED this 9th day of November, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 9th day of November, 1994. APPENDIX The Division has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Falcon did not file a proposed recommended order. The Division's Proposed Findings of Fact 1 Accepted in 3. 2 See 4. 3 Accepted in 5-7. 4 Accepted in 7. 5 Accepted in 8. 6 Accepted in 9. 7 Accepted in 10. 8 Accepted in 12-14. 9 Accepted in 14. 10 Accepted in 11 and 15. COPIES FURNISHED: Miguel Oxamendi Assistant General Counsel Department of Business and Professional Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Jack McRay DBPR Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris Acting Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Alvin Vickers and Homer Green, t/a Blue Grass Gardens Tallahassee, Florida, hold beverage license 1-COP #75-59. Notice to Show Cause was served by Certified Mail on the address of the Respondents on file with the Division of Beverage. Exhibit 3, certified copy of the Judgment of the United States District Court for the Northern District of Florida shows that on November 16, 1976 Homer Green was convicted of possessing chattels of a value in excess of $100 stolen from interstate shipment of freight in violation of Title 18, U.S. Code Section 659 as charged. Exhibit 4, Judgment of the United States District Court for the North District of Florida shows that on December 6, 1976 Alvin Vickers was convicted of transporting in interstate commerce a stolen motor vehicle knowing the motor vehicle to have been stolen, in violation of Title 18, U.S. Code, Sections 2312 and 2 as charged. Both Vickers and Green were sentenced to serve 18 months in prison. From the foregoing Findings of Fact it is concluded that the licensees, Green and Vickers, violated the laws of the United States.
Findings Of Fact Based on the exhibits introduced into evidence and the testimony of the witnesses at the hearing, I make the following findings of fact: On January 3, 1984, an application for transfer of alcoholic beverage license number 16-262, in the name of I. T. Chips, Inc., to JNJ, Inc., d/b/a Apples, was delivered to the Lauderhill District Office of the Division of Alcoholic Beverages and Tobacco by Michael Rapp. The application and personal questionnaire of Michael Rapp, Vice President of JNJ, Inc., revealed that he had been convicted of a felony within the last 15 years. Upon being informed by Sgt. Pat Roberts that the application for transfer would be denied because Rapp's conviction was disqualifying, Rapp withdrew the application. On January 6, 1984, Michael Rapp submitted an amended application for transfer of this same alcoholic beverage license to JNJ, Inc., d/b/a Apples. The amended application listed Janet Swift, a/k/a Janet Swift Rapp, as sole corporate officer and shareholder. An agreement for purchase and sale submitted with the application revealed that JNJ, Inc., was purchasing from MAM Restaurant Corporation all assets located at 1201 East Hallandale Beach Boulevard, Hallandale, Florida, the address of the licensee, I. T. Chips, Inc., for a total price of $418,600.00. The purchase and sale agreement acknowledged that a down payment in the amount of $18,600.00 had been made by JNJ, Inc., and provided for the remaining debt of $400,000.00 to be paid in monthly installments of $4,800.00 and be secured by a mortgage. The application stated that Frederick Cusolito and Janet Swift would be the sole financial investors in the business and that the corporation's banking business would be conducted at the Bank of Hallandale & Trust Company. Janet Swift swore that the information provided on the application was true. Whatever, Inc., is a corporation with the same business address as JNJ, Inc. Michael Rapp is the President and Secretary of Whatever, Inc. Whatever, Inc., had a bank account at the Bank of Hallandale & Trust Company and Michael Rapp was an authorized signer on the account. During January of 1984, Whatever, Inc., was writing checks to pay some of the operating expenses of the business located at 1201 East Hallandale Beach Boulevard. JNJ, Inc., with an address of 1201 East Hallandale Beach Boulevard, Hallandale, Florida, had a bank account at Flagship Bank of Miami. The bank records show Janet Swift as president of the corporation and Michael Rapp as Vice President. During December of 1983, the following deposits were made to the JNJ, Inc., account at the Flagship Bank of Miami: $92,500.00 from Martin I. Roth at L & M Consultants, $27,000.00 from David J. S. Gottfried, $39,000.00 from the Hanseatic Development Corporation (described as a "loan"), and $87,000.00 from an unidentified account at the Bank of Ireland in New York. None of the people or entities from whom these deposits were received were listed as financial investors of JNJ, Inc., on the sworn application filed by Janet Swift for the transfer to JNJ, Inc. None of them were listed as financial investors of I. T. Chips, Inc., on the sworn application filed by Janet Swift for change of business name and change of officers of I. T. Chips, Inc. Martin I. Roth, the authorized signer on the bank account of L & M Consultants who actually signed the L & M Consultants checks which were deposited in the JNJ, Inc., account, was convicted of a felony in 1981. On January 19, 1984, JNJ, Inc., borrowed $75,000.00 from Schmidt Industries, Inc., a Missouri corporation. To secure that loan, JNJ, Inc., entered into a Security Agreement (chattel mortgage) pursuant to which JNJ, Inc., pledged liquor license series number 4 COP, permit number 16-262, as security for the repayment of the $75,000.00 loan. Liquor license series number 4 COP, permit number 16-262 is the liquor license issued to I. T. Chips, Inc. 1/ The facts described in paragraphs 3, 4, 5, and 6, above, came to the attention of DABT Investigator Michael D'Ambrosia during the course of his investigation of the January 6, 1984, application to transfer the I. T. Chips, Inc., license to JNJ, Inc. D'Ambrosia met with representatives of JNJ, Inc., discussed with them the information he had acquired during the course of his investigations, and requested that he be provided with certain additional information. Thereafter, District Supervisor Richard Boyd recommended disapproval of the January 6, 1984, application on April 3, 1984. On April 4, 1984, before any final agency action was taken on the application, JNJ, Inc., withdrew the application to transfer the I. T. Chips, Inc., license to JNJ, Inc. On April 4, 1984, Janet Swift signed an application for a change of business name and a change of corporate officers of the licensee corporation, I. Chips, Inc. 2/ This application was filed on April 11, 1984, with the Division of Alcoholic Beverages and Tobacco. Janet Swift was again listed as sole corporate officer and shareholder. The sworn application filed in April of 1984 contained the following financial information: JNJ, Inc., which held a temporary license, which has since been withdrawn, executed an Agreement for Purchase and Sale with MAM Restaurant Corporation on 12/8/83. JNJ, Inc., the stock of which is owned exclusively by Janet Swift, has abandoned the premises, since Janet Swift has purchased all of the stock in I. T. Chips, Inc., for which she paid no consideration other than assuming the existing debts. I. T. Chips, Inc. has agreed to assume the mortgage referred to in the Agreement for Purchase and Sale; to wit, the initial principal sum of $400,000.00, payable at the rate of $4,800.00 per month, which will be paid from the proceeds of the operation of the business herein. Janet Swift is the sole and exclusive owner of T. Chips, Inc., and no other person, firm or entity has any interest, direct or indirect, in the said business. The application which was signed on April 4, 1984, and filed on April 11, 1984, did not contain any information about the financing of the business other than what is quoted immediately above, and did not list any person as having an interest in the business other than Janet Swift. On April 4, 1984, Janet Swift swore to the truth of the following statement which is printed on the application form: I swear or affirm under penalty of perjury as provided for in Florida Statutes 837.06 and 559.791, that the foregoing information is true to the best of my knowledge, and that no other person, persons, firm or corporation, except as herein indicated, has an interest in the alcoholic beverage license or cigarette permit for which these statements are made. On April 4, 1984, Schmidt Industries, Inc., had an interest in the alcoholic beverage license which was the subject of the application signed by Janet Swift, because that same license was pledged as collateral for a $75,000.00 loan, and pursuant to a chattel mortgage, Schmidt Industries, Inc., had a security interest in that license to guarantee the payment of the loan. 3/ On April 4, 1984, JNJ, Inc., was a financial investor in the I. T. Chips, Inc., license or business because I. T. Chips, Inc., received the benefit of the $18,500.00 down payment that JNJ, Inc., made to MAM Restaurant Corporation and I. T. Chips, Inc., received the benefit of the $75,000.00 that JNJ, Inc., borrowed from Schmidt Industries, Inc. On April 4, 1984, the persons and entities described in paragraph 4, above, who wrote checks deposited in the JNJ, Inc., bank account were indirect financial investors in the I. T. Chips, Inc., license or business because I. T. Chips, Inc., was either the successor to or the alter ego of JNJ, Inc. On April 4, 1984, Frederick Consolito was an indirect financial investor in the I. T. Chips, Inc., license or business because I. T. Chips, Inc., was either the successor to or the alter ego of JNJ, Inc. 4/ The foregoing findings of fact incorporate the substance of the vast majority of the findings of fact proposed by the parties. In those few instances where I have made findings contrary to the proposed findings, it is because the persuasive competent substantial evidence was to use contrary of the proposed findings. In those few instances where I have omitted the substance of findings proposed by a party, it is because the proposed finding was irrelevant, immaterial, cumulative, or not supported by persuasive competent substantial evidence.
Recommendation Based upon all of the foregoing it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order denying the application for change of business name and change of corporate officers of I. T. Chips, Inc. DONE AND ORDERED this 1st day of April, 1985, in Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of March, 1985.
The Issue Whether petitioner's application for an alcoholic beverage license should be denied because of the direct or indirect interest of John Lee Johnson, a person allegedly lacking good moral character.
Findings Of Fact In May, 1982, petitioner Betty Jean Johnson applied for a 2 APS (beer and wine) alcoholic beverage license to be used in connection with a business known as Johnson's Corner Grocery, 1400 North J. Street, Pensacola, Florida. On her application, petitioner indicated that she owned the business and that no other person had a direct or indirect interest in the business. (R-1) Prior to the petitioner filing her application, John Lee Johnson, her husband, had applied for a beverage license for the same location under his own name. When he failed to disclose his criminal history on the application, his application was denied and he was charged with the crime of filing a false official written statement. On May 12, 1982, he was convicted by the County Court of Escambia County. (Testimony of Baxley; R-3) John Johnson's filing of a false official statement supports an inference that he lacks good moral character. Petitioner did not present evidence sufficient to rebut or negate this inference. Contrary to petitioner's assertion, John Johnson has a direct or indirect interest in Johnson's Corner Grocery. He owns the underlying real property. He signs, and is authorized to sign, checks on the business account of Johnson's Corner Grocery. The business's utilities, light, water, and gas accounts are all in his name. (Testimony of Baxley, Johnson, Kelly; R-4) Petitioner, however, manage's the day-to-day operations of Johnson's Corner Grocery. On her application, she indicated that she had purchased the business for $80,000, with $25,000 down, and $55,000 financed by the Barnett Bank. She now admits that the $25,000 down payment was provided by John Johnson, her husband, and that he also co-signed the $55,000 note and mortgage. Her application, however, does not disclose Mr. Johnson's participation in the purchase and financing of, the business. (Testimony of Johnson; R-1, R-4) On November 9, 1982, three days before hearing, Mr. Johnson leased the Johnson's Corner Grocery property to petitioner for $675.00 per month for three years. The handwritten lease, which was not signed in the presence of two subscribing witnesses, states that Mr. Johnson will not be "responsible for . . . the operations of . . . [the] business." This assertion is rejected as unworthy of belief in light of his extensive involvement in purchasing and setting up the business, and his continuing access to its funds. (P-1)
The Issue Whether respondent's beverage license should be suspended or revoked, or civil penalty assessed, for alleged violation of Section 562.12, Florida Statutes, pursuant to Section 561.29, Florida Statutes, as set forth in the Notice to Show Cause issued by Petitioner.
Findings Of Fact Respondent Earlene Chandler of Quincy, Florida, is the owner of Chandler's Grocery located in Gadsden County, which holds a beverage license for the sale of packaged beer and wine under Class 2-APS, issued by the Petitioner (Petitioner's Exhibit 1). On March 11, 1977, Frederick Miller, a beverage officer employed by Petitioner, and a paid informer of Petitioner, Clinton Harrison, A/K/A Guy Williams, drove to Respondent's place of business and parked approximately 300 to 400 yards from the licensed premises. Miller searched Harrison and determined that he did not then possess any alcoholic beverages. While Miller stood by the side of the road, Harrison drove the car to Respondent's grocery store and entered the same. He returned to where Miller stood in approximately, 10-15 minutes and turned over to Miller a partially-filled Coca Cola bottle containing a mixture of vodka and grapefruit juice. Miller had watched Harrison enter and leave from the front door of the store; however, he could not recall if anyone entered the store while Harrison was there. Miller was able to determine that vodka was in the bottle by it's smell. He and Harrison placed their initials on a label which was then affixed to the bottle, and Miller then placed the bottle in the evidence room vault at his agency in Tallahassee until the date of hearing. Harrison told Miller that Willy Chandler had sold him a drink of vodka for one dollar (testimony of Miller, Petitioner's Exhibit 2). On March 21, 1977, Miller obtained search warrants to search the residence of Respondent, which is located behind the grocery store. On March 27, 1977, the warrant was served on the Respondent and a search of the residence revealed the presence of two sealed quart bottles and one unsealed, partially filled quart bottle labeled Taaka Vodka in a kitchen cabinet. These bottles were tagged and initialed by Miller and placed in his agency's evidence vault until the date of hearing. At the time the search was made, the Respondent stated that the vodka belonged to her husband (testimony of Miller, Petitioner's (composite Exhibit 3). Although the informer Harrison testified at the hearing, his version of what transpired at Chandler's Grocery on March 11th, 1977, is in conflict with the testimony of Respondent, her husband Willie Chandler, and that of Phillip N. West, a customer in the store at the time in question. Harrison testified that he asked Willie Chandler several times for a "dollar shot", but that Chandler refused, stating that he either did not have anything or did not sell intoxicating beverages Harrison further testified that finally Chandler went outside the store and returned with a glass containing some vodka which he, Harrison, put in a Coke bottle and mixed with fruit juice after paying one dollar for the vodka and twenty-five cents for the juice. Harrison conceded that he had had a "beer or two" before he entered the grocery. He also testified that only Chandler, the Respondents and a child were present in the store at the time. Harrison's credibility was attacked by the Respondent at the hearing by a showing that he has a bad reputation for truth and veracity in the community. (Testimony of Harrison, W. Chandler, Simmons). The evidence establishes that the following took place when Harrison entered Chandler's Grocery Harrison asked Willie Chandler for a half pint of whiskey and Chandler told him that he did not sell whiskey. There were a number of children and several adults in the store. Harrison, who was somewhat "unstable" and gave the appearance of being under the influence of alcohol, was annoying the children in the store and issuing mild threats against them. He continued to ask Chandler for whiskey and finally the latter told him that he would give him some. Chandler and Harrison then left the premises and, while Harrison stood at a gate in full view of the occupants of the store who observed him continuously, Chandler went to his residence and brought back some vodka in a glass which he handed to Harrison at the gate Harrison reentered the store, purchased a Coca Cola bottle for five cents and some grapefruit juice for twenty-five cents, which he mixed in the bottle and, after taking a drink of same, left the premises. (Testimony of W. Chandler, Respondent, West, Petitioner's Exhibit 4).
Recommendation That the charge against Respondent Earlene Chandler be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Michael L. Allen, Esquire and Michael Edwards, Esquire 112 East Washington Street Quincy, Florida 32351
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 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.
