Findings Of Fact On April 26, 1982, the Petitioner Dania Bank, filed a request with the Respondent Department of Business Regulation, Division of Alcoholic Beverages and Tobacco to record a lien holder's interest against alcoholic beverage license 16-15 issued to the Respondent Chula, Inc., doing business as Chalet Ole and Chula Liquors. The lien was created on July 3, 1981, and filed with the Secretary of State on August 10, 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Division of Alcoholic Beverages and Tobacco denying the Petitioner Dania Bank's request to record a lien against alcoholic beverage license number 16-15. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 31st day of October, 1983. COPIES FURNISHED: Richard E. Whitney, Vice President The Dania Bank 255 East Dania Beach Boulevard Dania, Florida 33004 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether the Application for Alcoholic Beverage License dated March 9, 1988, filed by Ocie C. Allen, Jr., should be approved by the Respondent?
Findings Of Fact Ocie C. Allen, Jr., d/b/a OCA, filed an Application for Alcoholic Beverage License dated March 9, 1988 (hereinafter referred to as the "Application"), with the Division. In the Application, Mr. Allen indicated under "Type of Application" that the Application type was "Other - ownership change because of contract and change of location." Mr. Allen listed himself as the "Applicant" and signed the Application as the "Applicant." The "Current License Number" listed in the Application to be transferred to Mr. Allen is 62-03498, current series 4 COP. The holder of this license was Terri Howell. At the end of the Application there is an "Affidavit of Seller(s)" to be executed by the licensee from whom the license is to be transferred. This affidavit has not been completed in the Application. The purchase price for the business was listed as $86,250.00. By letter dated March 16, 1988, the Division returned the Application to Mr. Allen and informed him that it was being returned for the following reasons: (1.) Need copy of loan in the amount of $86,250.00. (2.) If there are other agreements concerning this change, we will need copies. (Closing Statements) (3.) Need Affidavit of Seller signed by Ms. Howell making sure signature has been notarized on both applications. (4.) If no business name, please use applicants [sic] name also in that blank. Mr. Allen returned the Application to the Division with a letter dated March 21, 1988, and indicated, in part, the following: The Loan of $86,250.00 is 75% of the appraised value for which a 4 COP license was sold in Pinellas County prior to Ms. Howell winning the drawing. This amount is reduced by the amounts she has received from the operation of Spanky's. Thereby the actual amount owed by me to Ms. Howell is $86,250.00 LESS the amount she has received during the operation of Spanky's, approximately, $60,000.00. The Application was not modified by Mr. Allen. In a letter dated March 24, 1988, the Director of the Division requested the following additional information from Mr. Allen: (1.) Need Affidavit of Seller signed by Ms. Howell making sure signature has been notarized on both applications. (2.) Complete (No.5) Type of License Desired: (Series ). By letter dated March 28, 1988, Mr. Allen responded as follows to the Division's request for information: Enclosed is the application for transfer. Ms. Howell signature [sic] on the Independent [sic] Contractor Agreement is the only signature of hers that will be furnished to you. By letter dated April 4, 1988, the Division informed Mr. Allen that Terri Howell, the licensee, needed to sign the Affidavit of Seller. The Division notified Mr. Allen that it intended to deny the Application in a letter dated May 31, 1988. Mr. Allen was provided a Notice of Disapproval of the Application in a letter dated June 29, 1988. The following reasons were given for denial of the Application: Application to transfer the license does not bear the signature of the current licensee and, therefore does not evidence a bonafide [sic] sale of the business pursuant to [Section] 561.32, Florida Statutes. Application incomplete as applicant has failed to provide complete verification of his financial investment. Also, applicant has failed to provide records establishing the annual value of gross sales of alcoholic beverages for the three years immediately preceding the date of the request for transfer. The Division is, therefore, unable to fully investigate the application pursuant to Florida law. By letter dated July 19, 1988, Mr. Allen requested a formal administrative hearing to contest the Division's denial of the Application. Mr. Allen sent a letter to the Division dated October 27, 1988, with an Affidavit requesting permission to pay a transfer fee of $5,000.00 "in lieu of the 4-mill assessment."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case dismissing the case with prejudice. DONE and ENTERED this 17th day of January, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1989. COPIES FURNISHED: Ocie C. Allen, Jr. Post Office Box 10616 Tallahassee, Florida 32302 Lt. B. A. Watts, Supervisor Division of Alcoholic Beverages and Tobacco Department of Business Regulation 345 S. Magnolia Drive, Suite C-12 Tallahassee, Florida 32301 Harry Hooper Deputy General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927
Findings Of Fact Respondent, Seminole Park and Fairgrounds, Inc., holds alcoholic beverage license number 69-255, Series 12, RT, which licensed premises is located at Seminole Greyhound Park, a greyhound racing facility in Casselberry, Florida. The officers of this corporation who are accused of filing false personal questionnaires with Petitioner are Paul Dervaes, Jack Demetree, William Demetree and Ernest Drosdick. Paul Dervaes and William Demetree also filed a certificate of incumbency and stock ownership which is also alleged to have been false. The principal issue concerns the involvement of John Fountain in the affairs of Seminole Park and Fairgrounds, Inc. Fountain is a convicted felon who was adjudicated guilty of bookmaking in the Jacksonville Federal District Court in October, 1972. The principal parties to this matter, Paul Dervaes, Jack and William Demetree and Ernest Drosdick knew from the outset that John Fountain was a convicted felon ineligible for licensing in this state under either the pari- mutuel or beverage laws. John Fountain conceived the idea of acquiring Seminole Park and Fairgrounds, Inc., a money-losing harness racing facility, and obtaining necessary legislation to convert the facility to greyhound racing. Fountain first brought this idea to his long-term friends and business associates, Jack and William Demetree, in the mid to late 1970's. Fountain also initiated the involvement of another longtime friend, Paul Dervaes, as President of Seminole Park and Fairgrounds, Inc. When the enterprise was short of cash in late 1978 and early 1979, Fountain made successive loans of $152,000 and $169,499.82 to the corporation through Paul Dervaes for use in converting and operating Seminole Park. When the necessary legislation was passed to convert to a greyhound facility, John Fountain, for several months, worked long hours without any salary as head of the physical conversion project for the Demetrees. Fountain originated the Super 8 betting feature at Seminole Park, one of the cornerstones of the track's promotion and publicity endeavors. Fountain also, after the conversion was complete and the facility was opened for business, authorized complimentary meals and drinks at the licensed premises at Seminole Park and authorized petty cash disbursements for a wedding present for a newspaper reporter and the distribution of gasoline without charge from Seminole Greyhound Park's fuel tanks. On March 31, 1980, Paul Dervaes, who at the time held 53 percent of the outstanding stock of Seminole Greyhound Park, sent a memo to William Demetree and sought to extricate himself from a managerial position at the track on the basis that the Demetrees appeared not to be satisfied with his managerial abilities. In this memo, Dervaes identified himself as a minority stockholder of the enterprise, despite his then ownership of a majority of 53 percent of the shares of stock. Respondent has sought to explain such incongruity by candidly admitting that Dervaes was fronting for John Fountain as to 43 shares or 43 percent of the stock in Seminole Park. As this time, Ernest Drosdick, who had for years handled all legal affairs for Seminole Park as well as for William Demetree, advised Dervaes and Jack and William Demetree that the loans to Seminole from John Fountain through Paul Dervaes had to be repaid so that the involvement of Fountain could be terminated. Drosdick's advice was predicated on Fountain's felony conviction and he noted that Fountain's continued involvement in such manner would be violative of the pari-mutuel and beverage licensing laws. The corporation thereupon obtained $321,499.82 in early April of 1980, such sum being the total of the principal but not interest due on the $152,000 and $169.499.82 loans made from John Fountain to Seminole Park through Paul Dervaes. Drosdick's advice was not consistently applied, however, with regard to recalling the loans from John Fountain. The $321,499.82 was paid by check to Paul Dervaes on April 1, 1980, which Dervaes deposited in his bank account. William Demetree then asked Dervaes if $160,000 of the funds just paid him could be borrowed back from Fountain despite Drosdick's advice against such loans. The re-loan was agreeable with Fountain and on April 9, 1980, Dervaes wrote a check in the amount of $160,000 back to Seminole Park and Fairgrounds, and on April 21, repaid the remaining $161,499.82 to Fountain. The $160,000 loan was reflected in an April 9, 1980, note signed by William Demetree as Chairman of Seminole Park and Fairgrounds, Inc. It was also acknowledged by William Demetree that he knew the money was coming from John Fountain. It is this loan, which was repaid as to principal only in November of 1980, that was not reflected on the personal questionnaires of each of the principal parties. At the time the April 9, 1980, $160,000 loan was made by Fountain to Seminole Park through Dervaes, all of the principal parties, Paul Dervaes, Jack and William Demetree and Ernest Drosdick, knew that John Fountain was a convicted felon and knew that his involvement through loans would be impermissible under pari-mutuel and beverage licensing statutes. It was established that the $160,000 loan was not listed on the personal questionnaires filled out in July of 1980, by each of the aforementioned individuals despite the clearly expressed directive of such questionnaire forms, which states: List the total amount and sources of money you personally are investing in the proposed operation. Also, list any persons, corporations, partnerships, banks, and mortgage companies who have or will invest or lend money in the proposed operation. Immediately prior to the applicant's signature line on the personal questionnaire form is the following statement: I swear or affirm under penalty of perjury as provided for in Florida Statute 837.06 that the foregoing information is true to the best of my knowledge, and that no other person, persons, firm or corporation, except as indicated herein, has an interest in the alcoholic beverage license for which these statements are made. Immediately under the signature line is a boxed-in passage entitled "WARNING" with the word "warning" capitalized and underlined and the following: Read carefully, this instrument is a sworn document. False answers could result in criminal prosecution, subject to fine and/or imprisonment. The principal parties seek to excuse their failure to include the Fountain loan on their personal questionnaires by claiming that Drosdick, who is now deceased, was unaware of the $160,000 loan, that he filled out the questionnaires for them and that they merely signed them under oath and attested to their veracity without reading them. This testimony is not credible in view of the material, self-serving omission made on these questionnaires. Therefore, Respondent's agents, who are experienced businessmen, must be held responsible for their sworn statements. The principals have also sought to excuse their conduct on the basis that any matters which transpired between John Fountain and Paul Dervaes in connection with the loan were personal matters between Dervaes and Fountain and thus immaterial to the corporation. However, this theory avoids recognizing that personal questionnaires were submitted by four individuals and not by the corporate entity. It was established that each of the four individuals had knowledge of the $160,000 loan in question and thus were required to list such loan on their personal questionnaires. It was Fountain who conceived the idea of conversion, who supplied the capital necessary to effectuate the conversion, who without salary headed the physical conversion of the facility and who after the opening of the track authorized the expenditure of funds and the giving of certain gratuities at the track. Fountain was clearly and intimately involved with the overall success of the track. Indeed, the original loans in the amount of $152,000 and $169,499.82 from Fountain called for the payment of 10 percent interest and the $160,000 loan called for the payment of 15 percent interest, none of which has ever been paid. Such interest, as of September 30, 1982, had accrued in the amount of $15;173. Dervaes acknowledged that such interest was but a "paper transaction" in that the principal parties and Fountain all knew and agreed that Fountain would not be paid until such time as the track paid Dervaes the interest. Consequently, Fountain has held with the full knowledge of all the principal parties, an impermissible pecuniary interest in the licensed facility which continues to the present time. The Certificate of Incumbency and Declaration of Stock Ownership submitted as part of the beverage license application process was likewise incorrect. It reflected Jack and William Demetree as 50 percent each owners of Seminole Park and Fairgrounds, Inc. when, in fact, the separate corporate entity Seminole Greyhound Park, was the sole stockholder of this corporation. Such document was signed by William Demetree and certified as being true and correct by Paul Dervaes under oath. William Demetree and Paul Dervaes attempt to place the blame on Drosdick for improperly preparing the document. However, they signed this document and cannot avoid responsibility for their sworn statements.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's alcoholic beverage license no. 69-255. DONE and ENTERED this 23rd day of November, 1982, in Tallahassee, 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 23rd day of November, 1982. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Steven A. Werber, Esquire 2000 Independent Square Jacksonville, Florida 32202 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Petitioner originally held alcoholic beverage license no. 26-532, Series 4-COP, as an individual. He transferred this license to M & S, Inc., a Florida corporation, about one year ago. Petitioner is a 50 percent shareholder in this corporation. Jimmy G. Maddox holds the other 50 percent stock interest. Petitioner and Maddox are currently engaged in civil litigation involving the corporate licensee. Respondent referred to this civil suit in its notice disapproving the transfer application, citing the pending litigation as a basis for disapproval. Petitioner has not purchased the license from the corporation or entered into any agreement in contemplation of license transfer. Rather, he believes he is entitled to the return of the license because he received no consideration for the prior transfer from either the corporation or Maddox. Alternatively, Petitioner asks that the prior transfer to the corporation be set aside due to this lack of consideration.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a Final Order denying Petitioner's request for transfer of alcoholic beverage license no. 26-532, Series 4-COP. DONE and ENTERED this 6th day of April, 1982 in Tallahassee, 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 6th day of April, 1982. COPIES FURNISHED: James A. Fischette, Esquire Suite 1916 Gulf Life Tower Jacksonville, Florida 32207 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Herbert T. Sussman, Esquire 3030 Independent Life Building Jacksonville, Florida 32202 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether the Petitioners are entitled to a transfer of the quota license they attempted to apply for in their initial application. Whether the Petitioners are entitled to an alcoholic beverage license for a restaurant based upon their second application. Whether the Petitioners are entitled to an alcoholic beverage license based upon their third application in spite of the county's refusal to approve the zoning of the proposed location until a pending declaratory judgment before the circuit court is resolved. Whether the Respondent is estopped to deny any of the applications because of the representations made by a field agent for the agency that to his knowledge, there were no problems at the proposed location.
Findings Of Fact The joint stipulation of facts entered into by the parties on December 21, 1988, are adopted as the findings of fact in this proceeding. A copy of the stipulation is attached and made part of this Recommended Order.
The Issue By Notice to Show Cause filed December 19, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the alcoholic beverage license number 60-0883 issued to James R. Rogers, trading as Ray's Tavern. As grounds therefor it is alleged that Rogers, in order to secure a license to sell alcoholic beverages, made false written statements to the agents of Respondent in violation of 537.06 and 561.29 F.S. One witness was called by Petitioner and four exhibits were admitted into evidence.
Findings Of Fact On December 21, 1977, notice of the hearing scheduled to commence on January 12, 1978 at 1457 N. Military Trail, West Palm Beach, Florida was served on Respondent by a beverage agent of Petitioner. (Exhibit 1) In answer to question 13 on the application for Transfer of Alcoholic Beverage License, which asked "Has a license covering the place described in this application or any other place in which any of' the above named persons were at the time interested ever been revoked by the Director?" Respondent answered "No". (Exhibit 2). By Order of the Director of the Division of Beverages dated September 30, 1955 (Exhibit 3) the alcoholic beverage license issued to James R. Rogers, Curley's Tavern, aka Ray's Tavern was revoked for maintaining gambling paraphernalia and permitting gambling on the licensed premises.
The Issue Whether petitioner's application for transfer of an alcoholic beverage license should be granted, or denied on the ground that the license has been revoked.
Findings Of Fact On January 25, 1977, Armando Calo, through counsel, filed a Notice of Lien with DABT stating that he was a bona fide mortgagee on an alcoholic beverage license (4-COP, lic. no. 23-1901) held by the Intimo Lounge, Inc., 1601 Collins Avenue, Miami Beach, Florida. Citing Section 561.65, Florida Statutes, he enclosed a copy of his chattel mortgage and a check payable to DABT in the amount of $5.00. (P-1) By return letter dated February 4, 1977, C. L. Ivey, Jr., DABT's Licensing Supervisor, acknowledged receipt of Mr. Calo's Notice of Lien and stated that it would be made part of the Intimo Lounge, Inc. license file. At that time, administrative license revocation proceedings were pending against Intimo Lounge, Inc. So Mr. Ivey sent a copy of his February 4, 1977 acknowledgment letter to DABT's Miami Office, and included this notation: P.S. John: You need to immediately notify Attorney Solomon's [Calo's attorney's] office if and when an order to revoke is issued. He will then go to court to seek a judicial transfer. (P-2) On March 22, 1977, Charles A. Nuzum, DABT's Director, executed an order revoking Intimo Lounge, Inc.`s alcoholic beverage license. (R-1) Eight days later, on March 30, 1977, Armando Calo sued Intimo Lounge, Inc., seeking to foreclose his chattel mortgage on its alcoholic beverage license. By letter of the same date, counsel for Mr. Calo, citing Section 561.65, Florida Statutes, notified DABT of the filing of the foreclosure action; he also asserted that Mr. Calo had no knowledge of or participation in the causes for which the Intimo Lounge, Inc. beverage license was revoked. Copies of subsequent pleadings filed in the action were sent to DABT's legal department. DABT thus knew the suit was filed and was aware of its continued progress. (Testimony of Barone; P-3, P-4, P-11) The Circuit Court of Dade County ultimately entered a final judgment of foreclosure in Mr. Calo's favor. On August 17, 1979, pursuant to such judgment, the Clerk of the Court sold the Intimo Lounge, Inc. beverage license, at public sale, to intervenor Rene Valdes, 1710 N.W. 7th Street, Suite 7201, Miami, Florida for $25,000. Notice of the sale was published in the Miami Review, a newspaper circulated in Dade County. On August 28, 1979, the Clerk issued a Certificate of Title pursuant to Chapter 45, Florida Statutes. This Certificate certified that Intimo Lounge, Inc.`s alcoholic beverage license (4-COP, license no. 23-1901) had been sold to Rene Valdes on August 17, 1979, and that "no objections to the sale have been filed within the time allowed for filing objections." (Testimony of Valdes; P-5, P-6) Although DABT was aware of the protracted mortgage foreclosure litigation involving the Intimo Lounge, Inc. beverage license --which it had earlier revoked -- it never protested or sought to block the foreclosure action. It was not a party to the action; neither did it attempt to become one. (Testimony of Barone, Valdes) In September, 1979, a month after the judicial foreclosure sale, Nathaniel Barone, counsel for Intimo Lounge, Inc., wrote R. B. Burroughs, Jr., Secretary of the Department of Business Regulation, asking what steps were necessary to keep the Intimo Lounge, Inc. beverage license viable. An internal memorandum suggests that DABT was, at first, unprepared to answer that question and preferred, instead, to delay answering until an application for the license was filed. But, on October 4, 1979, Harold F. X. Purnell, the Department's General Counsel replied on behalf of Secretary Burroughs: It is the Division's position that the . . . license has been and presently is revoked pursuant to the actions pre- viously taken by [DABT]. Further, that in the absence of an order of appropriate jurisdiction entered in a proceeding to which the Division is a party we are powerless to transfer such license. (Testimony of Barone; P-7, P-10) Meanwhile, Rene Valdes, notified DABT of his purchase of the Intimo Lounge, Inc. beverage license and asked that it be held in escrow while he found a suitable purchaser and location. When DABT refused, Mr. Valdes petitioned the court, which had rendered the foreclosure judgment, to require DABT to process and transfer the license. The court denied his petition, at least in part, because DABT was not a party to the proceeding. After the court hearing, Mr. Valdes, together with his attorney, Charles Kelly, and DABT's counsel, Mr. Purnell, met outside the chambers and discussed their next step. Mr. Kelly discussed seeking a mandamus ordering DABT to issue the license. Mr. Purnell suggested, instead, that Mr. Valdes find a location and purchaser for the license, then submit an application to DABT -- something which Mr. Valdes had not yet done. Although Mr. Purnell did not assure them that the application would be approved, both Mr. Valdes and Mr. Barone gained an impression that it would be. 2/ Mr. Valdes, following Mr. Purnell's suggestion, found a location and buyer, then applied for a transfer of the license. DABT's denial resulted in this proceeding. (Testimony of Barone, Valdes) Under Section 561.65(1), Florida Statutes (1977), a lender licensed by the state holding a lien on an alcoholic beverage license had the right to enforcement of his lien against the license within 12 days after any order of revocation, provided it was revoked for causes which the lienholder had no knowledge and did not participate. If the lienholder purchased the license at foreclosure sale, he could operate under it or transfer it to a qualified person. Until August 17, 1980, it was DABT's long-standing practice and policy to make no distinction between licensed and unlicensed lenders (lien-holders). It allowed both licensed and unlicensed lienholders to file notice of liens against beverage licenses and honored the subsequent transfer of the license if the lien was enforced within 12 days of revocation. This practice was abruptly changed on the basis of an agency legal opinion. On August 17, 1980, one month before Gui-Dom filed its application, DABT's General Counsel rendered a legal opinion limiting Section 561.65 relief to lenders licensed by the state. After that date, until 1981, when the legislature removed the "licensed lender" language of Section 561.65, DABT applied Section 561.65 literally and only accepted liens filed by licensed lenders. (Testimony of LaRosa; P-13) But in October, 1980, DABT did not deny Gui-Dom's application for transfer of the Intimo Lounge, Inc. license because Armando Calo, the lienholder, lacked a lender's license. Instead, the application was denied because the license had been earlier revoked. As later explained by Barry Schoenfeld, DABT's Chief of Licensing: 2 [DABT] felt at the time that . . . there really was no license, that the license had already been revoked, and that there was no license for the court to sell [to Valdes]. (P-13, p. 25). But Section 561.65 specifically permits liens, under specified conditions, to survive license revocation. When asked to explain DABT's position in light of Section 561.65, Mr. Schoenfeld replied, "I don't know that I can explain it." (P-13, p. 16) Neither could Mr. Schoenfeld adequately explain why, in cases similar to this, DABT has approved license transfers while, here, they have not. (P-13, p. 23) It was not until after the denial of Gui-Dom's application that DABT contended that Section 561.65, Florida Statutes (1977), provides no relief because Armando Calo was not a licensed lender. (P- 9, P-13). Rene Valdes, a beverage license broker, operates a business known as "Beverage License, Inc." He specializes in obtaining and transferring alcoholic beverage licenses for clients and has a working knowledge of the Beverage Law, including DABT rules and practice. When he purchased the Intimo Lounge, Inc. license at the judicial sale, he did not know that it had been revoked by DABT. He did, however, know that there was license revocation litigation between Intimo Lounge, Inc. and DABT. He also knew that DABT had issued an emergency order suspending Intimo Lounge, Inc.'s license; and he knew that there were circuit court foreclosure proceedings involving the license. Yet he failed to ascertain the status of the license -- either by checking the files of DABT or the circuit court. But even if he had discovered that the license had been revoked, under DABT's long-standing practice and interpretation of Section 561.65, it would have made no difference. The license would have "survived" revocation because Armando Calo had timely enforced his lien. And it could have been sold at a judicial sale and transferred to a new qualified purchaser. (Testimony of Valdes, Harris; P-13) DABT has provided no record foundation for its abrupt discontinuance of prior agency practice and policy in August, 1980, a policy which allowed both licensed and unlicensed lien holders to file and timely enforce liens against beverage licenses. This policy enabled a lien to survive license revocation; and the license, which had been revoked earlier could then be transferred by judicial sale. The only explanation given for the change in policy, a change which DABT now relies on as cause for denying Gui-Dom's application, is that the agency changed its legal interpretation of Section 561.65 (1977). (Testimony of LaRosa; P-13)
Recommendation Based on the foregoing, it is RECOMMENDED: That Gui-Dom's application for transfer of alcoholic beverage license no. 23-1901, series 4-COP, be granted. DONE AND RECOMMENDED this 3rd day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.
The Issue The issue in this case is whether the Petitioner's application for an alcoholic beverage license should be granted or denied.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a Florida business man who operated initially a business called the International Coffee Shop and Minit Market, located at 1342 Washington Avenue, Miami Beach, Florida, and subsequently a business called Tony Cafeteria, located at 340 1/2 Northwest 12th Avenue, Miami, Florida. Petitioner was the holder of alcoholic beverage license number 23-8402, Series 1 APS, for the International Coffee Shop and Minit Market on Miami Beach. Respondent, on May 3, 1988, served on Petitioner an emergency order of suspension of license number 23-8402, series 1 APS, "in order to protect the public safety and welfare from immediate and continuing danger of drug trafficking and illegal delivery of controlled substances in and about the licensed premises." Concurrently with the emergency order of suspension, Respondent served a notice to show cause on Petitioner alleging eight counts of narcotics transactions on the licensed premises and one count of maintaining a nuisance of the licensed premises. Petitioner did not request a hearing on the charges that resulted in the emergency order of suspension and the notice to show cause. On June 27, 1988, Respondent published its Final Order revoking Petitioner's alcoholic beverage license number 23-8402, Series 1 APS. The Final Order was served on Petitioner on July 5, 1988. That Final Order included the following conclusion: The facts set forth hereinabove demonstrate that the licensee has fostered, condoned, and/or negligently overlooked trafficking in and use of illegal narcotics and controlled substances on or about the licensed premises and has failed to exercise due diligence in supervising its employees and managing its licensed premises so as to prevent the illegal trafficking and use of narcotics on the licensed premises. In addition to the narcotics violations described in the notice to show cause regarding the International Coffee Shop and Minit Market, alcoholic beverages were being sold for consumption on Petitioner's licensed premises, and patrons on the licensed premises were gambling on pool games. The International Coffee Shop and Minit Market was located near a large elementary school. The cocaine transactions negotiated and consummated on the licensed premises during April 1988 were open and in plain view. No effort was made to conceal these activities. Children were frequently on the licensed premises during April 1988 when cocaine transactions were being openly negotiated and consummated. The first cocaine transaction at the International Coffee Shop and Minit Market during Officer Santana's undercover investigation was between Officer Santana and a patron named Clara Rodriguez. The transaction took place just inside the entrance of the International Coffee Shop and Minit Market, lighting conditions were good, and no effort was made to conceal the transaction. Petitioner was standing immediately next to Officer Santana when the cocaine transaction took place. Petitioner made no effort to stop the transaction, or to summon law enforcement, or to evict Ms. Rodriguez or Officer Santana. Petitioner commented, in Spanish, that "if you're not going to eat or drink anything, you're going to have to leave," or words to that effect. During the 13 days following the cocaine transaction described immediately above, seven additional cocaine transactions were openly conducted on the premises of the International Coffee Shop and Minit Market:. Four of these transactions were permitted by Petitioner's employee Estella; three were permitted by Petitioner's employee Angel. Five patrons, Nuri, Pipo, Maria, Clara, and Betty, were involved in these cocaine transactions. Petitioner attributes the activity on his licensed premises that resulted in the license revocation to the undesirable neighborhood of the International Coffee Shop and Minit Market and the undesirable persons who frequented the International Coffee Shop. The neighborhood of Tony Cafeteria is no better than the International Coffee Shop neighborhood. In response to a complaint, Sergeant Herrera and other members of the Miami office of the Division of Alcoholic Beverages and Tobacco went to Tony Cafeteria on December 2, 1989. Petitioner's employee, Ms. Baez, sold a beer to an undercover Law Enforcement Investigator on the premises of Tony Cafeteria. Ms. Baez was cited for selling an alcoholic beverage without a license. Twenty cans and bottles of beer were seized on the premises by the officers. Petitioner works full time, 40 hours a week, at the Fountainbleau Hilton and is considered by the Head Houseman to be "a fine, dedicated worker." Three friends of Petitioner opined that Petitioner is a trustworthy, moral person. The Petitioner has never been arrested or convicted of any criminal offense. The Petitioner did not have actual knowledge of the narcotics transactions that resulted in the revocation of the alcoholic beverage license at the International Coffee Shop and Minit Market, nor was he aware that any gambling was taking place on the pool tables. In January 1990, Petitioner was issued a temporary beverage license for Tony Cafeteria, with which he operated until his license application was disapproved by Respondent. During the three-month period he operated with the temporary license he was not cited for violation of the beverage law.
Recommendation For all of the foregoing reasons, it is recommended that the Division of Alcoholic Beverages and Tobacco issue a final order in this case denying the Petitioner's application for a alcoholic beverage license. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of July 1990. MICHAEL M. 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 27th day of July 1990. COPIES FURNISHED: Vidal Marino Velis, Esquire 2100 Coral Way, Suite #300 Miami, Florida 33145 John B. Fretwell, Esquire Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
Findings Of Fact Respondent is the holder of Beverage License No. 26-751 permitting the sale of alcoholic beverages from her store at 1155 Jessie Street, Jacksonville, Florida. This business is a convenience store known as Agel Grocery. Respondent's husband has been co-owner of this business since the outset, and participates in its operation and management. When the Morenes applied for an alcoholic beverage license in June, 1980, they believed Frank Morene was ineligible and intentionally omitted his name from the application.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is That Respondent be found guilty of filing an incorrect application in violation of Subsection 561.17(1), Florida Statutes (1979). It is further RECOMMENDED: That Respondent's Alcoholic Beverage License No. 26-751 be suspended until Respondent files and secures approval of a correct application or demonstrates that any direct or indirect interest of Frank Morene in the licensed business has been removed. DONE and ENTERED this 7th of August, 1981, in Tallahassee, 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 7th day of August, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mrs. Saundra Morene c/o Agel Grocery 1155 Jessie Street Jacksonville, Florida 32206
