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, Suamy Corporation, held license number 23-21872, series 2APS, authorizing it to operate a beer and wine package store (the sale of beer and wine for off-premises consumption) at the premises of a business known as Bristol Sundries, located at 2127 Brickell Avenue, Miami, Florida (hereinafter "the licensed premises").2 Milagros Suarez was the sole shareholder, as well as the sole corporate officer, of the Respondent corporation. On February 11, 1997, Leonard DelMonte, a special agent with the Division of Alcoholic Beverages and Tobacco, undertook an inspection of the licensed premises. Upon entry into the premises, the agent observed shelves on his left that contained bottles of liquor on display, and behind the counter he observed more shelving, which contained more bottles of liquor on display, together with bottles of wine. A cash register was observed on the counter, and an employee was present to attend the needs of customers. The agent inspected, inventoried, and seized 19 bottles of distilled spirits (Petitioner's Exhibits 2-1 through 2-19) on the licensed premises. (Petitioner's Exhibit 1). The bottles were all sealed; labeled as distilled spirits, such as rum, scotch, gin, and vodka; and carried the name, trademark, or insignia of commonly known manufacturers of distilled spirits, such as Johnny Walker, Cuervo, Pinch, and Bombay. The bottles also had affixed to them price stickers, of the same type affixed to the wine that was offered for sale, and contained prices that were consistent with the retail price of the product. Given the facts, it is apparent that Respondent was offering the distilled spirits for sale on the licensed premises.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the charge set forth in the Administrative Action and imposing a civil penalty of $1,000 for such violation, subject to Respondent's option to substitute a period of suspension in lieu of all or a portion of the civil penalty. DONE AND ENTERED this 27th day of January, 1998, 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 27th day of January, 1998.
Findings Of Fact On December 15, 1981, Petitioner's beverage officer conducted a routine inspection of Respondent's licensed premises. He found a draft beer keg with an embossed Anheurser-Busch label leading to a spigot at the bar labelled "Miller High Life". Petitioner seized the keg and requested that Anheuser-Busch officials test the contents. Their brewers, who are trained beer tasters, established that the keg contained Anheuser-Busch and not Miller product. The evidence was inconclusive as to whether the Respondent or the Miller beer distributor was responsible for the mix-up. However, there was no intentional deception by Respondent and the misrepresentation is determined to have been accidental.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Section 563.03, Florida Statutes (1981), and imposing a civil penalty of $100. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of March, 1982. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1982. COPIES FURNISHED: James N. Watson, Jr., Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301 Earle Bennett, Esquire 2726 College Street Jacksonville, FL 32205
The Issue Whether Respondent owes additional alcohol consumption tax.
Findings Of Fact Respondent, Funtana Village, Inc., is the holder of a valid alcoholic beverage license number 13-00155, Series 4-COP. The license is for its premises known as the "Spinnaker" located at 8795 Thomas Drive, Panama City Beach, Florida. The Spinnaker is an entertainment facility that serves alcoholic beverages. The availability of alcoholic beverages is part of the entertainment experience at the Spinnaker. The facility has five live stages and provides other sources of entertainment. It budgets and spends $500,000 to $600,000 per year for entertainment, such as musical shows, acts and bands. During the period of May 4, 1995, through December 18, 1995, the Division performed a surcharge tax audit of the Respondent. The surcharge tax is levied on ounces (volume) of beer, wine and liquor sold for consumption on the vendor's premises. See Rule 61A-4.063, Florida Administrative Code. The Division audits vendors' monthly surcharge reports in order to confirm their accuracy and ensure compliance with statutory and rule requirements, as well as ensure that the proper amount of surcharge tax is paid. In general licensed vendors may select from two methods for reporting the surcharge, the sales method and the purchase method. Under the sales method, vendors pay the surcharge on the volume amount of alcoholic beverages sold for consumption on the licensed premises. Under the purchase method, vendors pay the surcharge on the volume amount of alcoholic beverages purchased from that vendor's alcohol distributor. In this case, the audit covered the reporting period of July 1, 1994, through March 31,1995. Respondent elected the sales method of payment. The audit was conducted by Marie Carpenter, an auditor employed by the Petitioner. Prior to the audit involved in this case, the Division performed an audit of Respondent covering the period of July 1, 1990, through November 30, 1992. Another auditor from the Division performed the audit. Pursuant to negotiation and agreement with Petitioner, Respondent performed a self-audit for the period from December 1, 1992, through June 30, 1994. The results of the self-audit were accepted by Petitioner. A settlement was entered into by both parties. The audit in issue in this action starts with the day immediately following the end of the self-audit period, July 1, 1994. Importantly, in preparing the reports for the audit involved in this case, Respondent followed the exact methodology and percentages used in calculating the tax due under the previous audit which had resulted in a settlement agreement between Respondent and Petitioner and was approved by Petitioner. In performing the July 1, 1994, through March 31, 1995, audit, the auditor did not review the prior self-audit because each audit should stand on its own merits. She also used slightly different mathematical methods and percentages to arrive at the amounts the Division has alleged are due. The purpose of the current audit was to determine whether accurate records were being kept by the Respondent and whether accurate deductions of non-surchargeable (or free) drinks were being calculated by the Respondent. In the December 22, 1995, report on the audit, the auditor found that the Spinnaker's records as kept were accurate and traced correctly throughout the audit trail. In the audit the Division calculated the amount of the surcharge owed by Respondent using the "sales depletion method." This formula is provided for in the Division's rules. Under the formula, the Division first determined the Respondent's beginning inventory by volume for July 1, 1994. The figure used by Respondent was gleaned from the records Respondent provided to the Division's auditor. However, the evidence showed that the figures the auditor used for the beginning inventory were too low. The more accurate figures for the beginning inventory were the ending inventory figures from the previous self-audit period, which the Division had accepted and approved in the earlier settlement agreement. The more accurate figures should have been used by the Division. Second, the purchases by volume of alcoholic beverages made by the Respondent during the audit period were added to the beginning inventory figures to yield total inventory figures. Third, the ending inventory of alcoholic beverages on March 31, 1995, was determined. Again, the purchase information and ending inventory information was obtained from the records of the Respondent and independently confirmed from the records of the Respondent's distributor. Fourth, the inventory figures were subtracted from the total inventory figures to yield the gross gallonage available for sale during the audit period. Fifth, adjustments or deductions were made to the gross gallonage figures to yield the net gallonage figures to which the surcharge is applied. Some of the deductions to the gross gallonage figures were deductions for spillage, cooking and "free" drinks. Finally, the total surcharge amount was calculated and compared to the amount already reported and paid to determine if any surcharge was under-reported or over-reported. In this case, it was found the Respondent under-reported the surcharge due. The under-reporting was due to the Respondent's interpretation of the deduction allowed for free drinks. In essence, the issue was whether drinks given away by Respondent to customers, who have paid a cover charge to enter the premises or who have bought a membership in the Spinnaker, are free or sold because some consideration has been given by the customer for the drink. The Respondent based its interpretation on the way free drinks were handled in the settlement agreement it had entered into earlier. The witnesses confirmed that if cover charges were not treated as consideration for alcoholic beverages, the amount claimed by Petitioner to be due would be zero. The Petitioner has had a long-standing policy that a "cover charge" constitutes consideration for alcoholic beverages. This policy is contained in the Division's audit manual. The manual does not provide any leeway to auditors to apply or not to apply the policy, depending on the facts of the case. This policy has never been promulgated as a rule. Based on the policy, Petitioner determined that free drinks served by Respondent to those paying a cover charge for admission to Spinnaker were considered "sold" and therefore subject to the surcharge. The evidence showed that Respondent does not always charge a cover charge for admission to its facility. Respondent, during the course of the audit, provided the auditor with a schedule of its free drink offers for the audit period. The schedule demonstrated: Cover charges were collected even when there were no free drink specials. Respondent provided free drinks without requiring payment of a cover charge. Cover charges were imposed even after free drink specials ended. Cover charges fluctuated with the type of entertainment and the volume of business. Respondent never charged a cover charge where there was no entertainment. The evidence demonstrated that Respondent tracks the amount of cover charge needed to be generated to pay for the live entertainment and has never considered the cover charge as payment for any alcoholic beverages it sells. In fact, whether admission to Respondent's premises is charged appears to depend on two factors, live entertainment and seasonal customer volume. Cover charges were unrelated to any normal drink sales. Petitioner also disallowed deductions for membership cards purchased by patrons. Information provided by Respondent demonstrated that 77.5 percent of all membership cards were given away and that 22.5 percent were sold. Petitioner projected this ratio through the audit period and disallowed 22.5 percent of all alcoholic beverages given away to members because purchase of the membership cards was construed to be consideration for the drinks served. The membership cards were provided to patrons to gain free admission to the facility (exceptions exist for certain entertainment) and, at the time of the audit, for free parking, discounts on clothing, one-third discounted drinks and, on occasion, free drinks. Admittedly, the benefit value of member "free drinks," when compared with the value of other member benefits, is little. However, there is some value exchanged for the price of the membership card and some consideration has passed. Therefore, the surcharge is appropriately applied by the Division to the free drinks served to members. In September 1997, the Division at Respondent's request reviewed the audit and made certain adjustments to its earlier findings. The audit was adjusted based on a better explanation from Respondent of its draft beer giveaways and an error in the original audit. The re-audit performed by the auditor in September 1997 reduced the amount of the surcharge reported to be due in December 1995 from a total of $45,673.93 to a total of $19,619.26 of which $16,761.04 was the surcharge due; $2,549.77 was for penalties and $308.45 was for interest. However, the auditor in the re-audit adjusted for the draft beer giveaways by applying 20 percent to the free drinks rung up on the cash register to determine the deduction for free drinks. The earlier audit used in the settlement agreement applied the percentage to the total purchases to determine the deduction for free drinks. The method and procedures for establishing the percent of inventory which constituted free drinks in the earlier audit were standard auditing processes. The evidence did not support a change in that process. Therefore, the giveaway percentage should have been applied as it was in the audit for the settlement agreement. That method was approved by the Division and should have been followed for the purpose of consistency in the audit at issue here. The penalty was predicated on a prior action involving these two parties; however, the Consent Order entered in that prior action provided that the initial action would not be considered as a basis for imposing a penalty in any subsequent proceeding involving these issues. Therefore, the prior action cannot be used to increase the penalty, if any, imposed on Petitioner. Moreover, the under-reporting of the surcharge by Respondent was due to its legitimate reliance on the methodology and percentages used in the settlement agreement between it and Petitioner. Reliance on those provisions was reasonable and should not cause them to be penalized. Therefore, no penalty should be imposed on Respondent. Other than as noted above, the Division’s procedures and methodologies used in the audit at issue here were reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the assessment of surcharge principal and interest by Petitioner against Respondent be re-calculated as outlined above and any penalty be waived. DONE AND ENTERED this 4th day of March, 1998, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 4th day of March, 1998. COPIES FURNISHED: Albert C. Penson, Esquire Penson and Padgett Post Office Box 1327 Tallahassee, Florida 32302 Miguel Oxamendi, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Boyd, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent's plea of nolo contendere to the crime of possession of a controlled substance (for which adjudication was withheld) is sufficient to support the imposition of discipline with regard to his alcoholic beverage license.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to issue beverage licenses pursuant to Chapter 561, Florida Statutes, and applicable rules. Prior to September 11, 2000, Respondent, doing business as Smiley's, was the owner and holder of a beverage license, DBPR License No. 74-05336, Series 2-COP, which permits him to sell beer and wine for consumption on premises. On October 9, 1998, Respondent was charged by information with sale and delivery of cocaine. He was acquitted of that charge on May 12, 2000. Subsequently in a separate incident, Respondent was charged with possession of cocaine and on September 11, 2000, pleaded no contest to that charge. Pursuant to Respondent's timely request for formal proceedings, Petitioner's counsel initiated discovery in the course of this administrative proceeding through a Request for Admissions to which Respondent failed to respond. Respondent failed to provide a satisfactory explanation for this circumstance and, upon motion of Petitioner, the Request for Admissions was deemed admitted. Those admissions establish that Respondent entered a no contest plea on September 11, 2000, to the charge of possession of cocaine and that the plea bargain negotiated at that time also included two days' incarceration. Additionally, the admissions establish that Respondent is aware that possession of cocaine is a crime punishable by imprisonment for a term of five years. Respondent's own testimony is uncorroborated by other direct evidence and fails to establish that he possesses good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's alcoholic beverage license, DBPR License No. 74-05336, Series 2-COP. DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2001. COPIES FURNISHED: Paul Kwilecki, Jr., Esquire 629 North Peninsula Drive Daytona Beach, Florida 32118 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Lt. John P. Szabo Department of Business and Professional Regulation 400 West Robinson Street, Room 709 Orlando, Florida 32801 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue in this case is whether the Petitioner's application for an alcoholic beverage license should be approved or whether it should be disapproved for the reason set forth in the letter of disapproval dated April 13, 1990.
Findings Of Fact Based upon the testimony of the witness and the evidence admitted into evidence, the following findings of fact are made: The Department is the state agency authorized to process applications for alcoholic beverage licenses. On January 10, 1990, the Petitioner, Mary L. Hooks, submitted an application to the Department for a series 1-APS alcoholic beverage license. Petitioner sought the license for a business known as Mary's Bait & Tackle which is located at 110 Conners Highway, Canal Point, Palm Beach County, Florida. According to records submitted to the Department, Petitioner's mailing address was P.O. Box 604, Canal Point, Florida, 33438. In response to questions posed on the alcoholic beverage application form, Petitioner disclosed that she was convicted of a felony, the delivery of marijuana, on January 22, 1986. That charge and conviction stemmed from activities which had purportedly occurred in Palm Beach County, Florida. Petitioner's civil rights were restored by executive order entered December 2, 1988. On April 13, 1990, the Department notified the Petitioner that her application for license no. 60-5357, 1-APS had been disapproved. That notice provided the following reason and authority for the disapproval: Authority 561.15(1)(2) and 112.011, Florida Statutes Reason(s) Applicant, Mary L. Hooks, has been convicted of a felony within the last past fifteen years and is not believed to be of good moral character. While Mrs. Hooks has a Restoration of Civil Rights, the crime for which she was convicted directly relates to the alcoholic beverage laws and, for this reason, the application is being denied. Petitioner timely filed a challenge to the notice of disapproval, but did not appear for the formal hearing. No evidence was presented on her behalf.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco entered a final order denying Petitioner's application for a series 1-APS license. DONE AND ENTERED this 24th day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1990. APPENDIX TO CASE NO. 90-2916 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1, 2, 3, 5, and 6 are accepted. Paragraph 4 is rejected as not supported by the record or hearsay. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. COPIES FURNISHED: D. Lance Langston Assistant General Counsel Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Mary L. Hooks P.O. Box 605 Canal Point, FL 33438 Cpt. Debbie L. Gray Elisha Newton Dimick Building 111 Georgia Ave., Room 207 West Palm Beach, FL 33401 Leonard Ivey, Director Dept. of Business Regulation Div. of Alcoholic Beverages & Tobacco The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1007
Findings Of Fact Between June 6 and October 3, 1980, Petitioner's beverage officers and representatives of the Polk County Sheriff's Department conducted an undercover investigation of the Oasis Lounge in Ft. Meade. The business is operated by Milton Haverty who holds alcoholic beverage license No. 63-775. The manager- bartender during this period was John Haverty, the Respondent's son. On June 12, 1980, Beverage Officer West and Sgt. Allen of the Polk County Sheriff's Department visited the licensed premises in an undercover capacity. On that date, Martha Ann Berry delivered a beer to Beverage Officer West and accepted his payment for it. Both Officer West and Sgt. Allen observed Berry serve beer to another patron. Berry had been reported to the Polk County Sheriff's Department as a runaway juvenile. However, there was no evidence presented in this proceeding to establish that she was under 18 years of age at the time she delivered the alcoholic beverages. During the June 12, 1980, undercover visit to the licensed premises, the investigators openly discussed stolen property and were subsequently approached by John Haverty who asked that they obtain a T.V. set for him. Haverty and Sgt. Allen had further discussions about the T.V. set and a "stolen" outboard motor on June 20 and 24, 1980, again on the licensed premises. On June 27, the motor which was represented as stolen property was delivered to Haverty. In exchange for the motor, Haverty gave Allen three bags of marijuana (less than 20 grams) The transaction took place on the licensed premises. A subsequent sale of electronics equipment represented to be stolen goods was made by Allen to John Haverty on the licensed premises October 3, 1980. Haverty paid Allen $75.00 for these items.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner dismiss the Notice to Show Cause. DONE AND ENTERED this 30th day of July, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1981. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Milton Haverty Oasis Lounge 115 South Charleston Ft. Meade, Florida 33841
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: On October 24, 1985, Petitioner filed an initial application with Respondent to obtain an alcoholic beverage license. The alcoholic beverage license was to be used in the operation of a small restaurant which Petitioner owned, known as El Conquistador Restaurant, in Homestead, Florida. The Petitioner is the sole owner of El Conquistador Restaurant. The application listed the Respondent, Maria Andarcio as the sole proprietor and only person having a financial interest in the business known as El Conquistador Restaurant. During the processing of the application, Mr. Ross, the investigator assigned to Petitioner's case, noticed that the application appeared to have several discrepancies. In particular, Mr. Ross was concerned because the financial information submitted with the initial application listed Julio Andarcio, Respondent's estranged husband, as the sole depositor of the expense account but he was not listed as having any financial interest in the business. Secondly, Petitioner failed to provide sufficient information regarding her employment history. Lastly, a lease which was part of the initial application, identified a potential undisclosed interest, Jose Osario, as a co- leasee. On November 15, 1985, Mr. Ross, routinely mailed a "14 day letter" to Petitioner requesting additional information. In particular, the "14 day letter" directed the Petitioner to provide additional information within 14 days from the date of receipt of the letter. The additional information requested was as follows: List occupation for the past 5 years on personal questionaire. Julio Andarcio must be fingerprinted and submit personal questionaire." The Petitioner failed to provide the information requested in the 14 day letter. Thereafter, Respondent was unable to fully investigate the license application and denied the Petitioner's license on January 8, 1986. For some reason, the Petitioner did not receive the 14 day letter which Respondent sent by regular mail. Therefore, she did not respond within the requested time period. The Petitioner was born in Cuba and speaks very little English. The language barrier contributed to the apparent discrepancies in Petitioner's initial application. Mr. Ross opined that based on all of the information that he had received up to the time of the hearing, the Petitioner would have been granted a beverage license had she only responded to the "14 day letter."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered allowing the Petitioner 20 days from the date thereof in which to provide Respondent with the information requested in the initial "14 day letter," thereby making her application complete. The Respondent shall thereafter review and process the application in the standard and routine manner. DONE and ORDERED this 24th day of October, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 24th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1176 Rulings on Proposed Findings of Fact Submitted by the Petitioner (None Submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. Partially adopted in Finding of Fact. Matters not contained therein are rejected as unnecessary. Adopted in Finding of Fact 5. Rejected as a recitation of testimony and/or argument. Partially adopted in Finding of Fact. Matters no contained therein are rejected as subordinate. COPIES FURNISHED: Armando Gutierrez, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1077 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927
The Issue The issue in this case is whether Petitioner should revoke Respondent's alcohol beverage license, pursuant to Section 561.501, Florida Statutes (1995), 1/ and Florida Administrative Rule 61A-2.02 2/ because Respondent failed to pay tax, interest, and penalties of $179,146.56.
Findings Of Fact Petitioner is the state agency responsible for regulating alcohol beverage licenses. Respondent holds alcoholic beverage license number 69-00735, series 4-COP, for Lake Monroe Inn, 2485 North Highway 17-92, Sanford, Florida. Until sometime after December 1996, Respondent sold alcoholic beverages for consumption on the licensed premises. Respondent was required by Section 561.501 to pay a surcharge tax on such alcoholic beverages. In October, 1996, Petitioner audited Respondent's books and records to determine Respondent's compliance with the surcharge tax. The audit period was January 1, 1996, through August 31, 1996. Petitioner's auditors conducted the audit in accordance with generally accepted audit procedures. Petitioner determined the following surcharge tax liability: Surcharge Tax $ 47,472.98 Interest $ 7,961.66 Penalty $123,711.92 Total Liability $179,146.56 On October 10, 1996, Petitioner presented an audit report to Respondent, and the auditors discussed the audit findings with Respondent. Respondent does not contest the audit report and concedes the total liability. Respondent admits that the failure to collect and remit the tax was willful. Subsequent to the filing of the Administrative Action, Respondent went out of business. A lienholder foreclosed on Respondent's license. Another business now operates at Respondent's location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's alcohol and tobacco license. DONE AND ENTERED this 21st day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1997.
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.
The Issue Whether Respondent committed the violation alleged in the Administrative Action, and, if so, what disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a restaurant, Atlantic Street Station, located in Delray Beach, Florida. Since 1998, Respondent has held a Special Restaurant License (license number 60-11520 4COP SRX), authorizing it to sell alcoholic beverages on the premises of Atlantic Street Station. During the months of January and February 2000, $66,729.49, or slightly less than 33% of Atlantic Street Station's total gross revenues of $205,679.76, came from the retail sale on the licensed premises of food and non-alcoholic beverages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that DABT enter a final order finding Respondent violated Section 561.20(2)(a)4., Florida Statutes, as alleged in the Administrative Action, and disciplining Respondent therefor by revoking its license "without prejudice to obtain any other type of license, but with prejudice to obtain the same type of special license for 5 years," and fining Respondent $1,000.00. DONE AND ENTERED this 16th day of February, 2001, in Tallahassee, Leon County, Florida. ____________________________ STUART M. LERNER 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 16th day of February, 2001.
