Findings Of Fact Petitioner is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is 201 West, Inc., d/b/a Central City, who is the holder of alcoholic beverage license number 11-00259, Series 4-COP, a "quota license." Respondent's licensed premises is located at 201 West University Avenue, Gainesville, Alachua County, Florida. Craig Cinque is Respondent's sole director and corporate officer. Joseph Cinque, Craig Cinque's father, was formerly Respondent's sole director and corporate officer. Prior to becoming the owner of Central City, Craig Cinque managed the licensed premises on behalf of his father. During this period of time, the Division filed ten separate Notices to Show Cause against Respondent, alleging multiple sales to and consumption of alcoholic beverages by underaged persons. On August 29, 1989, the licensed premises was closed by an Emergency Order of Suspension. The administrative charges arising therefrom were resolved by a Stipulation and Consent Agreement, wherein the Respondent in that case admitted substantially to all of the violations. Craig Cinque individually executed the agreement, admitted responsibility for previous violations, and acknowledged that future violations of a similar nature could result in suspension or revocation of the alcoholic beverage license. The agency has issued numerous Notices to Show Cause against Respondent since the entry of the consent order. However, unproven Notices to Show Cause and unproven counts within any Notices to Show Cause are only unproven accusations, and as such are not probative herein even for purposes of showing "aggravation." Beverage Law Institute is an "approved trainer" under the Responsible Vendors Act, having been approved by the Petitioner as such. Petitioner certified Respondent Central City as a certified Responsible Vendor under the Act, on April 13, 1990. See, Subsections 561.701-561.706 F.S. Of the 483 nondistributor alcoholic beverage licensees in Alachua County, only 94 have been certified by Petitioner as Responsible Vendors. Of those 94, only 13 hold "4-COP" licenses, the category of license held by Respondent, which permits liquor, beer, or wine for consumption on premises or in a sealed container. Prior to the events of the instant Notices to Show Cause, and continuing through the 14-month period of the Notices to Show Cause and beyond, Respondent was engaged in a voluntary program designed to teach employees not to serve alcoholic beverages to underaged persons. Many of the materials therefor were provided by Beverage Law Institute. The training program and procedures involved multiple ID checkers at the front door. Also at the front door, wristbands to signify and quickly identify patrons of legal drinking age were issued. Once snapped on a customer's wrist, the band itself was stamped at a right angle across the customer's wrist to prevent or at least inhibit the wristband's transfer to an underage patron and to prevent a patron bringing in a counterfeit or "ringer" wristband. All patrons, regardless of age, received a stamp directly on the wrist to identify that they had paid their admission fee. Security personnel circulated inside the licensed premises checking drinks and wristbands, and waitresses were also instructed to check on drinks already purchased by customers. The training programs and procedures also involved Respondent's policy manual regarding IDs, extensive training and testing of employees, frequent oral reminders to employees concerning the law and concerning licensee policy, sporadic staff meetings regarding policy, videotaped instruction programs, provision of and instructions to employees to use an "ID Checking Guide" at the front door and at every internal bar within the licensed premises, confiscation of fake or questionable IDs at the door, 1/ and use of warning handbills given out to customers. Upon receipt, the handbills proclaiming the licensee's "of age only" policy were usually immediately discarded by customers. Some employees looked upon their training with more enthusiasm than others. Some employees considered the policy and training all for show. Most employees complied regularly with the requirements for training, review, and instructions. A few were lax in their compliance and had to be urged to attend staff meetings or to retest. In addition to all this, from the time the Responsible Vendor tests were available, all employees except two cashiers were tested according to the requirements of the Responsible Vendor Act and within the time frames provided therein. Every underage operative who testified admitted she or he had been "carded" at the door and that none had been issued wristbands. The parties stipulated that all of the individuals named in the four Notices to Show Cause (except for those alleged to have sold or given alcoholic beverages) were under the legal drinking age on the dates indicated by the respective Notices to Show Cause and that although each of these individuals "was actually in possession of alcoholic beverages as plead (sic), there was no evidence that any of the alcoholic beverages were obtained from Respondent's employees, agents, or servants." The stipulation listed the underage persons of the Notices to Show Cause but did not employ the term "consumption" which was specifically used only in the second Notice to Show Cause (GA11890496). Petitioner put on no witnesses as to "consumption." Likewise, Petitioner did not have admitted in evidence any confiscated alcoholic beverages alleged to have been sold by Respondent's agents/employees, nor did Petitioner present any laboratory reports to establish that any substance sold was alcohol. The only evidence of alcohol content is discussed infra. With regard to Craig Cinque's attitude and Central City's compliance with the Responsible Vendors Act, the testimony of Eileen Tenly and of William Cooter has been weighed and considered. Ms. Tenly is a totally noncredible witness whose testimony demonstrates an "axe to grind," and whose candor and demeanor is unpersuasive of anything except her animosity for Mr. Cinque. Petitioner's Investigator William Cooter, however, testified credibly that after having numerous conversations with Mr. Cinque on the subject of underage sales, Mr. Cinque stated that he was not worried about losing his alcoholic beverage license because he could get another one in his mother's name. On the other hand, Mr. Cooter, by his own testimony, has been invited by Mr. Cinque to instruct and has, in fact, instructed Mr. Cinque's employees on how to prevent underage drinking. The evidence as a whole, but most particularly that of Prince Miles, Respondent's janitor, who is a credible witness, is persuasive that patrons sometimes smuggle alcoholic beverages onto the licensed premises and that each time the establishment closes, commercial alcoholic beverage containers which are not part of the inventory sold by Respondent must be swept out. Since this smuggling activity must substantially reduce Respondent's profits, it is a logical inference that such smuggling is contrary to Respondent's policy and that Respondent does not encourage or condone it, whether done by adults or minors. I. Notice to Show Cause GA11890374; September 16, 1989 through February 9, 1990; sale to Toombs, Kittles, Goldtrap, and Ormsbee by Green, Halladay, Howell, and Grimes and possession by Peters, Conf, Kelly, Garcia, Fernandez, Shiskin, Brejhanan, Benz, Yawn, and Plettner All of the violations charged in Notice to Show Cause GA11890374 arose prior to Respondent's becoming a certified Responsible Vendor on April 13, 1990. On September 16, 1989, Ryan Conf and Alejandra Peters were each under the age of 21 and in actual possession of alcoholic beverages inside the licensed premises as pled. On September 19, 1989, Central City bartender David Green sold the Division's underaged operative, Bridgette Toombs, a liquid beverage in a long- neck, factory-produced 12-ounce bottle labelled "Michelob Dry." At that time, the licensed premises was not busy and Mr. Green noted that Ms. Toombs had no wristband. He therefore checked Ms. Toombs' underage ID and instructed her that since she was old enough to drink, she should go get a wristband. This transaction was observed by Petitioner's agent, Ms. Pendarakis, but Ms. Pendarakis did not overhear the conversation. After delivering a sample of the liquid beverage to Ms. Pendarakis in the ladies' room, Ms. Toombs crossed in front of Mr. Green's bar on her way to exit the licensed premises. Mr. Green sent word to Ms. Toombs by another Central City employee that he wanted to see her. Ms. Toombs complied with Mr. Green's request and showed him her underage ID once more. At that point, Mr. Green recognized his error in thinking that Ms. Toombs was 21 or over and called over several other Central City employees, all of whom viewed the ID showing Ms. Toombs was actually two months short of 19 years old. Mr. Green was not arrested until after the ID was passed around, so it may be inferred that his recognizing his mistake was not the result of any confrontation with Petitioner's agents or law enforcement officers or due to his perception that he had been "caught." Indeed, Petitioner's witness, Ms. Toombs, attributed Mr. Green's illegal sale to her as a mistake in subtraction. Mr. Green had previously successfully passed all tests required under the licensee's policy in existence before the Responsible Vendor tests were available. On October 20, 1989, Charlotte Kelly and Alezandro Garcia, who were under the age of 21, were each in the actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1989, Cesar Fernandez, who was under the age of 21, was in possession of an alcoholic beverage inside the licensed premises. On the same date, underage operative Megan Kittles was inside the licensed premises. She was not wearing a wristband, and her hand was stamped indicating that she was under 21. She first approached a white male bartender who checked her and refused to serve her. She then ordered a rum and coke from Respondent's bartender, Craig Halladay. Mr. Halladay did not check Ms. Kittles' ID and served her a liquid beverage which Mr. Szabo of the Division testified that he had identified by smell as containing alcohol. No one saw the drink mixed, and Mr. Szabo admitted that he did not know what kind of alcohol the drink contained. He stated that he "would not swear it was rum." Mr. Szabo also was not aware until formal hearing that Respondent sold any nonalcoholic mixed drinks. Although the evidence is weak, it is persuasive that Ms. Kittles was served alcohol. Mr. Halladay successfully passed the licensee's policy test before this incident and the Responsible Vendor test afterwards. Also on October 21, 1989, Matthew Goldtrap, another underage operative, ordered a "Budweiser" and obtained a 12-ounce bottle labelled "beer" from a floor waitress named Shannon Howell. Mr. Goldtrap had no wristband but did have a stamp on his wrist. He gave the container to Investigator Smith. Mr. Szabo then took both of Respondent's employees into custody. Mr. Goldtrap does not drink alcohol. Investigator Smith did not testify, but it is inferred from the description of the beer bottle and the circumstances of the transaction as a whole that Mr. Goldtrap was served an alcoholic beverage. Ms. Howell successfully passed the licensee's test prior to this incident. On January 19, 1990, Scott Shiskin, Michael Brejhanan, and Carolyn Benz, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. On February 9, 1990, Central City bartender Steve Grimes sold Petitioner's 19-year old operative Octavia Ormsbee a liquid beverage. Ms. Ormsbee, who had no wristband on, was first denied a sale of alcoholic beverage at the downstairs back bar after Respondent's bartender there checked her underage ID. Ms. Ormsbee then went to an upstairs bar and ordered a "Bud Light." She was told by Mr. Grimes, a bartender at that bar, that they were out of "Bud Light," and by agreement, a beer bottle labelled "Budweiser" was substituted. Ms. Ormsbee does not drink alcohol and did not testify that what she received from Mr. Grimes was alcohol. The bottle purchased by Ms. Ormsbee was turned over to Officer Byrd of the Gainesville Police Department. Officer Byrd, who is familiar with alcoholic beverages through his own education, training, practice, and experience, identified the contents of the bottle purchased by Ms. Ormsbee as being "beer." Officer Byrd turned the bottle over to Petitioner's agent Cooter. Also on this occasion, Preston Yawn and Eric Plettner, who were under the age of 21, were each actually in possession of alcoholic beverages inside the licensed premises. Mr. Grimes had successfully passed the licensee's policy test prior to this incident. All of the underaged operatives who testified concerning this Notice to Show Cause testified that Petitioner's adult operatives forbade them to drink (consume) what they were sold and that they did not consume any. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the minors actually named in the Notice to Show Cause constituted their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, mere possession does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 2/ Therefore, Petitioner has only established that on September 19, 1989 Respondent's bartender sold an alcoholic beverage to Petitioner's underage operative Bridgette Toombs; that on October 21, 1989, Respondent's bartender sold an alcoholic beverage to the Petitioner's underage operative Megan Kittles; that also on October 21, 1989, Respondent's floor waitress sold Petitioner's underage operative Matthew Goldtrap an alcoholic beverage; and that on February 9, 1990, Respondent's bartender sold the Division's underage operative Octavia Ormsbee an alcoholic beverage. One of these sales was clearly a mistake and two other operatives had to go to two bartenders each before an illegal sale was made. II. Notice to Show Cause GA11890496; June 8, 1990 through June 16, 1990; sale to Wearner by Edge and to Seligman by Lemberger and Bergine and possession by Tetstone, Lockey, Klug, Skipper, and Bissell On June 8, 1990, Jennifer Tetstone and Amy Lockey, who were under the age of 21, were in actual possession of alcoholic beverages inside the licensed premises. On June 16, 1990, Ann Klug, Shana Skipper, and Michael Bissell were in actual possession of alcoholic beverages inside the licensed premises. Also on June 16, 1990, Central City bartenders Michael Edge, Michael Bergine, and Robert Lemberger, respectively, sold each of the Division's underage operatives Kathy Wearner (who did not testify but who was stipulated to be underage) and Charles Seligman an alcoholic beverage. Neither underaged operative wore a wristband or was requested to produce an ID for purposes of the respective sales. As of date of formal hearing, the Respondent continued to employ these same bartenders. All of these bartenders had successfully completed the Responsible Vendor test before these incidents. Mr. Edge also had passed the licensee's earlier policy test. The underaged operative, Kathy Wearner, asked Michael Edge for "a Budweiser" and was sold liquid in a "Budweiser" beer bottle inverted in a drinking glass. Officer Rockey of the Gainesville Police Department convincingly described the liquid that came out of the bottle as beer, an alcoholic beverage. He turned the materials confiscated over to an unnamed agent of Respondent and has not seen them since. On the same date, Central City bartender Robert Lemberger sold a 12-ounce bottle labelled "Budweiser" to 18- year-old operative Charles Seligman. Mr. Seligman was at all times without a wristband and bearing a stamp on his hand. Mr. Seligman delivered the bottle he received from Mr. Lemberger to Officer Posey of the Gainesville Police Department who had watched the entire transaction. Mr. Seligman later purchased a 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to Officer Posey. Mr. Seligman purchased a third 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to one of Petitioner's agents, Ernest Wilson. Mr. Seligman does not drink alcohol. Agent Wilson does drink alcohol and testified that the bottle Charles Seligman handed him was, in fact, beer. Although Agent Wilson also testified that Mr. Seligman's first name was "Tom" and that Mr. Seligman had purchased a rum drink, nonetheless, Mr. Wilson was convincing that the bottle handed him by Mr. Seligman did, in fact, contain beer, an alcoholic beverage. Officer Posey convincingly described the first bottle he received from Mr. Seligman as containing beer, an alcoholic beverage, and upon all the circumstances, the undersigned infers that the second bottle given Officer Posey also contained beer. All the underaged operatives who testified on this Notice to Show Cause testified that they were forbidden to drink (consume) what they were sold and did not do so. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the other minors actually named in the Notice to Show Cause constitutes their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 3/ Therefore, Petitioner has established only that on June 16, 1990 Respondent's personnel sold one alcoholic beverage to the Petitioner's underage operative Wearner and three alcoholic beverages to the Petitioner's underage operative Seligman. III. Notice to Show Cause GA11900209; September 22, 1990 through September 29, 1990; service to, or consumption by Stanton, Coody, Willis, and, Torres On September 22, 1990, Amy Stanton and Janet Coody, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. On September 29, 1990, Betty Willis and Jose Torres, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 4/ IV. Notice to Show Cause GA11900254 October 19, 1990 through November 16, 1990; 9 counts possession by Harriett, Ortega, McKinney, Nelson, Smith, Winter, Joyner, Cooke, Sammon; "giving" by Blackwell and Strawser On October 19, 1990, Steven Harriett, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1990, Jamie Ortega, who was under the age of 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 20, 1990, Brian McKinney, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On November 15, 1990, Karen Nelson, Hollie Smith, Michael Winter, and Julia Joyner, all underage, were in actual possession of an alcoholic beverage inside the licensed premises. On November 16, 1990, Denise Cooke and Teresa Sammon, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 5/ No evidence was introduced to establish the allegations of Counts 4 and 6 of Notice to Show Cause GA11900254, alleging "giving."
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic and Beverages and Tobacco enter a Final Order dismissing Notices to Show Cause GA11900209 and GA11900254; finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890374, imposing a total of $1750 in civil fines therefor; and finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890496, imposing a total of $2000 in civil fines therefor. RECOMMENDED this 28th day of June, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 28th day of June, 1991.
The Issue The issue presented is whether Respondent failed to maintain separate records of purchases and gross sales of all alcoholic and non-alcoholic beverages and food in violation of Section 561.20, Florida Statutes, and Florida Administrative Code Rule 61A-3.0141, and if so, what penalty, if any, is appropriate. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect of the date of this Recommended Order).
Findings Of Fact Respondent holds license number 69-02639, series 4COP SRX. An SRX license authorizes Respondent to sell alcoholic beverages on the premises of Jon's Bar & Grill, located at 2485 N. Highway 17-92, Lake Monroe, Florida ("the licensed premises"). Persons issued "SRX" licenses must meet certain statutory requirements to ensure that they are operating bona fide restaurants. Among other requirements, Respondent must maintain separate records of all purchases and gross sales of all alcoholic and non-alcoholic beverages and food. Respondent's license application specifically informed Respondent that he must meet the specific requirements of this type of license. On March 17, 1997, Petitioner's Special Agent Richard Hurlburt met with Respondent for the purpose of conducting an SRX inspection to determine Respondent's compliance with SRX license requirements. An SRX inspection includes an audit of the licensee's records to determine the percentage of gross revenue derived from the sale of food and non-alcoholic beverages. Respondent was unable to produce the records he is statutorily required to maintain. Agent Hurlburt issued a notice to produce records relating to the operation of the restaurant. On August 12, 1997, Petitioner issued a notice of administrative complaint against Respondent for failure to maintain separate records of all purchases and gross sales for non-alcoholic and alcoholic beverages and food in violation of Section 561.20. Respondent has not produced the records he is statutorily required to maintain.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a $1,000 civil penalty against Respondent and revoking alcoholic beverage license no. 69-02639, series 4COP SRX, without prejudice to obtain any other type license, but with prejudice to obtain another SRX special license for 5 years from date of the Final Order. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon county, Tallahassee, Florida. DANIEL MANRY 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 6th day of August, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 George Lewis, Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe street Tallahassee, Florida 32399 Jon Gustafson, pro se 956 Lake Ashby Road New Smyrna, Florida 32069
The Issue Whether Respondents violated the terms of probation of the Consent Agreement, effective January 12, 1990. Whether Respondents committed the violations alleged in the notices to Show Cause.
Findings Of Fact As to Case No. 90-2711: At all times pertinent to this case, Respondents were doing business at 3200 South Orlando Drive, Sanford, Seminole County, Florida as Cesare's Palace, under alcoholic beverage license number 69-00467, series 4-COP-S. On April 19, 1989 a formal hearing was conducted in Sanford, Florida, and presided over by Hearing Officer Mary Clark of the Division of Administrative Hearings, in which the parties were the same. On August 4, 1989, a Final Order was issued in which the Division Director adopted in toto Hearing Officer Clark's findings of fact, all but one of her conclusions of law, and adopted her recommendation for a finding of guilty. The Division Director changed the recommended penalty to a twenty day suspension and a $1,000.00 civil penalty. The twenty day suspension was to commence, and the $1,000 civil penalty was to be paid on August 23, 1989. Respondents timely appealed Petitioner's Final Order on August 14, 1989. On August 22, 1989, Petitioner stayed the imposition of the penalty pending appellate review. Respondents and Petitioner executed a Consent Agreement in settlement of the case. Accordingly, Respondents withdrew their appeal, and timely paid the $1,000.00 civil penalty. Petitioner suspended imposition of the 20 day license suspension for 12 months commencing on January 12, 1990. The Agreement and the Addendum thereto were signed by both Respondents and their attorney. Respondents agreed to abide by certain terms of probation, as set forth in the Consent Agreement, and acknowledged that violation of one or more of the terms of probation would result in the imposition of the 20 day license suspension. The terms of probation called for Respondents to affirm in writing not later than 30 days after the effective date of the Consent Agreement, to the Division of Alcoholic Beverages and Tobacco, that certain specified tasks had been accomplished. The Consent Agreement became effective on January 12, 1990 when it was accepted by the Director, Division of Alcoholic Beverages and Tobacco. On or about February 11 (a Sunday) or February 12, 1990, Law Enforcement Investigator David Ramey went to the licensed premises to ascertain whether Respondents had accomplished the tasks which were to be affirmed in writing to the Division as being accomplished. The task of posting signs indicating that identification was required had been accomplished. The task to provide "written policies and procedures for employees to ensure that they are familiar with Florida drivers licenses, Florida identification cards, and passports; that they are sensitive to the importance of ensuring that alcoholic beverages are not sold to the underaged; that they are capable of, given a birth date, computing age; and that they understand that service of alcoholic beverages must be refused to those whose age and/or identification appear questionable to the employee" was not accomplished. The task of training and instructing all employees on the written policies and procedures relative to identification was not accomplished. The task of carefully monitoring employees to ensure that they are following company policy was not accomplished. No written affirmation reporting accomplishment of the above tasks was forwarded to the Division either within or without the thirty day period. The Consent Agreement included as a term of probation that Respondents become certified responsible vendors by March 1, 1990. Respondents' Application for Certification as a Responsible Vendor is dated March 5, 1990; the application was not forwarded to the Bureau of Vendor Training until April 7, 1990. Respondents had not become certified responsible vendors by March 1, 1990. William Walter Proctor was born on October 1, 1970 and has been serving as an underaged operative with the Division of Alcoholic Beverages and Tobacco since late January or early February 1990. When serving as an underaged operative, Mr. Proctor is to bring his drivers license, and to possess only the money given to him by the investigators. If asked for identification, Mr. Proctor is instructed to provide his drivers license which accurately reflects his date of birth. If asked his age, Mr. Proctor is instructed to answer truthfully. On March 6, 1990, Proctor was serving as an underaged operative with the Division of Alcoholic Beverages and Tobacco. He was working with Investigators Dave Ramey and Mark Douglas. During the evening Proctor entered the licensed premises, Cesare's Palace, located at 3200 South Orlando Boulevard, Sanford, Florida. Investigator Douglas also entered the premises. Proctor went to the bar and took a seat. The bartender took Proctor's order for a Michelob light beer, and asked to see Proctor's identification. Proctor gave the bartender his drivers license. The bartender took the license to the end of the bar, held it under a light, and then returned the license to Proctor and handed him the beer he had ordered. Proctor observed the bartender open the Michelob Light beer, and place the beer in front of Proctor. Proctor took possession of the beer, and the bartender took possession of the $1.85 provided by Proctor in payment for the beer. Proctor immediately turned the Michelob Light beer over to Investigator Douglas. Proctor identified Petitioner's Exhibit 3 as the drivers license he provided the bartender at Cesare's Palace on March 6, 1990. Mark Douglas is a law enforcement investigator for the Division of Alcoholic Beverages and Tobacco. He, along with Investigator Ramey were working with the underaged operative William Walter Proctor on March 6, 1990. Investigator Douglas entered the licensed premises, Cesare's Palace around 9:15 p.m. on the 6th of March. Some ten minutes later, underaged operative Proctor entered the premises. Investigator Douglas observed Mr. Adams open a bottle of Michelob Light beer and place it in front of Mr. Proctor. Investigator Douglas deals with alcoholic beverages every day of his working life. He is familiar with Michelob beer, and has seen bottles of Michelob Light before. The bottle of Michelob Light he received from Mr. Proctor on the 6th of March looked like the other such bottles he had seen. Additionally, Investigator Douglas took a sample of the beer prior to destroying the remaining contents of the bottle. Investigator Douglas has been trained in identifications; drivers licenses in particular. He knows that the yellow background against which Proctor's picture is depicted on Petitioner's Exhibit 3 means that the individual to whom the license was issued was under 21 at the time of the issuance. Investigator Douglas identified Respondent Polidoro as having been seated at the end of the bar when the sale to Proctor occurred. When Mr. Adams was looking at Mr. Proctor's drivers license, Respondent Polidoro leaned forward and looked down the bar. Respondent Polidoro has very bad vision; he is both nearsighted and farsighted. His glasses were not on at the time of the events involving Adams and Proctor. Respondent Polidoro has known Adams for two years and has complete confidence in him. On March 6, 1990, Respondent Polidoro was not aware that his bartender, Adams wore reading glasses. Adams made the mistake of forgetting his glasses. He left them in his room. Thus he was without his reading glasses while tending bar at the licensed premises on March 6, 1990. Respondent Polidoro is of the opinion that he has twice been entrapped by Petitioner into selling an alcoholic beverage to a minor, and that Petitioner, on 15 other occasions has failed to entrap Respondents. As to Case No. 90-5983: Marino Benevides went to work for Respondents as the housekeeping manager of the Cavalier Motor Inn, located at 3200 South Orlando Drive, in April, 1988. On or about May 1, 1989, Benevides leased from Respondents the lounge that is part of the Cavalier Motor Inn complex. The rent was $7500 a month, and was paid to Respondent Polidoro. Although the lease agreement was reduced to writing, it was never signed. Benevides hired and paid the employees of the lounge. Benevides hired and paid for the entertainment in the lounge. Benevides paid the utility bill for the lounge. Had there been net profits generated by the lounge, the net profits would have been received by Benevides. Benevides' obligation to Respondents was to pay them a fixed sum of $7500 a month. Payment of distributors for alcoholic beverages was made by the Respondents who were then reimbursed by Benevides. Benevides could not pay the distributors directly because the liquor license was not under his name. Respondent Milazzo was aware that leasing the lounge was a violation. The Respondents had the authority to "kick out" Benevides and that is what they did on January 27, 1990. "No violations of Section 562.11(1)(a), Florida Statutes during the probationary period" is a term of probation in the Consent Order.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondents be found guilty of the following offenses: Respondents violated the terms of probation contained in the Consent Agreement, dated January 12, 1990, as follows: Respondents did not affirm to the Division, prior to February 12, 1990, that written policies and procedures for employees to ensure compliance with the Florida Beverage Laws had been established; that all employees had been properly trained in the identification of underaged persons; and did not carefully monitor all employees to ensure that they were following company policy. 1990. Respondents did not become certified responsible vendors by March 1, On March 6, 1990, during the probationary period, a bartender employed by Respondents, on the licensed premises, sold an alcoholic beverage to a person under 21 years of age. On March 6, 1990, a bartender employed by Respondents sold an alcoholic beverage on the licensed premises to a person under 21 years of age, in violation of Sections 562.11 and 561.29, Florida Statutes, and Respondents were negligent in failing to exercise due diligence in supervising its employees and maintaining surveillance over the premises. Respondents failed to maintain control of the licensed premises by leasing the premises to an independent contractor contrary to Rule 7A-3.017, Florida Administrative Code. It is further RECOMMENDED that: Respondents' probation be revoked and that the alcoholic beverage license held by Anthony J. Milazzo and Cesare A. Polidoro, License No. 69-00467, Series 4-COP-S be suspended for 20 days. Based on the sale of an alcoholic beverage to a person under age 21 and for failure to maintain control of the licensed premises, Respondents' alcoholic beverage license, No. 69-00467, Series 4-COP-S, be suspended for 90 days, to run concurrently with the suspension for violation of probation, pay a fine of $1,000 and submit proof of compliance with the terms of the Consent Agreement prior to reinstatement of the license. DONE AND ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact Accepted in substance: paragraph 1 through (blank on original document-ac) Respondent did not file proposed findings of fact. COPIES FURNISHED: John B. Fretwell Deputy General Counsel Dept. of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Richard A. Colegrove, Jr., Esquire 101 W. First St., Suite C Sanford, FL 32771 Leonard Ivey, Director Dept. of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronough St. Tallahassee, FL 32399-1000 Joseph Sole Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000
The Issue This case concerns the entitlement of the Petitioners to be granted a Series 2-COP beverage license from the State of Florida, Division of Alcoholic Beverages and Tobacco.
Findings Of Fact The Petitioners, Emilio and Wilma Beth Toro t/a The Place In Between, are currently the holders of a Series 1-COP beverage license issued by the State of Florida, Division of Alcoholic Beverages and Tobacco. That series of license allots the Petitioners to vend beer for consumption on the premises which is located in the incorporated city of Fernandina Beach, Florida. On April 25, 1979, the Petitioners applied to the Respondent for an increase in series of license from a Series 1-COP to a Series 2-COP. A Series 2-COP license allows for the sale of beer and wine and for the consumption of those beverages on the licensed premises. On May 22, 1979, the Director of the Division of Alcoholic Beverages and Tobacco denied the application for an increase in series. The sole ground given for such denial is that the issuance of such a license would be contrary to Chapter 57-1601, Laws of Florida (1957), in that the provision of law prohibits the issuance of such a license. This subject law limits the number of licenses that may be issued by the Respondent in the incorporated areas of Nassau County, Florida, to the extent that only one license, of any kind or nature, shall be issued for each 4,000 persons within any incorporated city or town lying in the said county where beverages containing alcohol of core than 14 percent by weight are being sold. The population measurement is based on the last preceding Federal Census. Within Nassau County, Florida, the Federal Census indicates that the following incorporated cities or towns are recognized in 1970. Those communities are: Boulogne City, Callahan Town, Hilliard Town, and Fernandina Beach City. Of those incorporated communities, only Fernandina Beach City exceeded the 4,000-person threshold. Fernandina Beach City had a population of 6,955 persons as reflected in the 1970 Federal Census. (See page 7 of the Respondent's Exhibit No. 2 admitted into evidence, which is a copy of the U.S. Department of Commerce, Bureau of Census, "1970 Census of Population" for the State of Florida.) An affidavit submitted by the Respondent shows that on May 7, 1979, the records of the Respondent indicated the existence of four quota liquor licenses (Series 8-COP) and twenty-one wine licenses (Series 2-APS and Series 2-COP) within the limits of the incorporated areas of Nassau County, Florida.
Recommendation It is recommended that the Director of the Division of Alcoholic Beverages and Tobacco deny the Petitioners' request for a Series 2-COP beverage license. DONE AND ENTERED this 18th day of December, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Emilio & Wilma Beth Toro 2019 Atlantic Avenue Fernandina Beach, Florida 32034 Daniel C. Brown, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue This case concerns the application of William E. Morey, who does business as Morey's Restaurant, to acquire a new series 2-COP beverage license from the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, in which the Respondent has denied the license application on the grounds that the granting of such a license would be contrary to provisions of Section 561.42, Florida Statutes, and Rule 7A-4.18, Florida Administrative Code. These provisions of the Florida Statutes and Florida Administrative Code deal with the prohibition of a financial interest directly or indirectly between distributors of alcoholic beverages and vendors of alcoholic beverages.
Findings Of Fact The Petitioner, Willian E. Morey, applied to the State of Florida, Departent of Business Regulation, Division of Alcoholic Beverages and Tobacco, for the issuance of series 2-COP alcoholic beverage license. By letter dated, January 23, 1979, the Director of the Division of Alcoholic Beverages and Tobacco denied the application based upon the belief that such issuance wood violate the provisions of Section 561.42, Florida Statutes, and Rule 7A-4.18, Florida Administrative Code. The pertinent provision of Section 561.42, Florida Statutes, states: 561.42 Tied house evil; financial aid and assistance to vendor by manufacturer or distributor prohibited; procedure for en- forcement; exception.-- (1) No licensed manufacturer or distributor of any of the beverages herein referred to shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the Beverage Law, nor shall such licensed manu- facturer or distributor assist any vendor by any gifts or loans of money or property of any description or by the giving of rebates of any kind whatsoever. * * * In keeping with the general principle announced in Section 561.42, Florida Statutes, the Respondent has enacted Rule 7A-4.18, Florida Administrative Code, which states: 7A-4.18 Rental between vendor and distri- butor prohibited. It shall be considered a violation of Section 561.42, Florida Sta- tutes, for any distributor to rent any property to a licensed vendor or from a licensed vendor if said property is used, in whole or part as part of the licensed premises of said vendor or if said property is used in any manner in connection with said vendor's place of business. The facts in this case reveal that William E. Morey leases the premises, for which he has applied for a license, from Anthony Distributors, Inc., of 1710 West Kennedy Boulevard, Tampa, Florida. Anthony Distributors, Inc., is the holder of a J-DBW license to distribute alcoholic beverages in the State of Florida. This license is held with the permission of the State of Florida, Division of Alcoholic Beverages and Tobacco. Consequently, the issuance of a series 2-COP license to William E. Morey at a time when he is leasing the licensed premises from a distributor of alcoholic beverages, namely, Anthony Distributors, Inc., would be in violation of Section 561.42, Florida Statutes, and Role 7A-4.18, Florida Administrative Code.
Recommendation It is recommended that the Petitioner, William E. Morey's application for a series 2-COP beverage license be DENIED. DONE AND ENTERED this 10th day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Willian E. Morey d/b/a Morey's Restaurant 4101 North 66th Street St. Petersburg, Florida 33709 Mary Jo M. Gallay, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Early Mitchell t/a Mitchell's Fish Market holds 1-COP beverage license which authorizes the sale of beer only for consumption on the premises. At the time scheduled for the commencement of the hearing Mitchell was not present and the hearing commenced. Exhibit 1 shows that the notice of the hearing was served upon Mitchell on May 10, 1977. Shortly thereafter Mitchell arrived and the hearing proceeded. On October 5, 1976 a beverage agent accompanied by an officer from the Tallahassee Police Department inspected Mitchell's Fish Market. Inside they found a partially filled bottle of Smirnoff vodka which was seized, duly marked, and presented in evidence at the hearing. A description of the bottle was substituted for the exhibit and Exhibit 2 was returned to the Beverage Division. On March 9, 1977 another beverage officer, on a routine inspection of Mitchell's Fish Market, discovered behind the counter concealed in an open beer case, one partially filled bottle of Smirnoff vodka. The bottle was seized, marked for identification and retained in the custody of the seizing beverage officer until such time as it was produced in evidence at the hearing. A description of the bottle was entered into the record and Exhibit 3 returned to the Division of Beverage.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 16-637 S, Series 4-COP, be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 5th day of August, 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 5th day of August, 1983.
The Issue The issue presented in whether an agent or employee of Respondent sold alcoholic beverages to a person under the age of 21, in violation of Section 562.11(1)(a), Florida Statutes, as alleged in the Administration Action issued September 10, 1997, and if so, what penalty is appropriate.
Findings Of Fact At all times relevant and material to this proceeding, Respondent held alcoholic beverage license no. 74-01498, series 2APS, for an establishment known as My Super Store ("the licensed premises"), located at 701 South Martin Luther King Boulevard, Daytona Beach, Volusia County, Florida. Daytona Beach Police Department opened an investigation of the licensed premises after it received numerous complaints of illegal activity at the licensed premises. Paris Anthony is a black female born on June 13, 1977, and was 19 years old on May 5 through May 21, 1997. On May 5, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The bottle bore the manufacturer's trade mark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the cashier. The cashier accepted payment for the beer, but did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her. When Ms. Anthony asked for a receipt for the beer, the cashier, in a raised voice, commented to Ms. Anthony, "Well, you're not old enough, are you?" or words to that effect. Ms. Anthony answered that she was not, but was nonetheless permitted to leave the premises with the bottle of beer. During the conversation between the cashier and Ms. Anthony, Respondent was seated an arm's length away from the cashier. Respondent was not talking to anyone at the time. Although Respondent looked up at Ms. Anthony and the cashier during the exchange reported in paragraph 5, above, he took no action in response to the assertion that Ms. Anthony was not of legal age to purchase alcoholic beverages. On May 7, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The beer bore the manufacturer's trademark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the same cashier who was working behind the counter on May 5, 1997. The cashier did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her. Ms. Anthony departed the licensed premises with the bottle of beer. The Respondent was observed on the premises by Ms. Anthony at the time of the purchase. On May 21, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The beer bore the manufacturer's trademark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the same cashier who was working behind the counter on May 5 and May 7, 1997. The cashier did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her. Ms. Anthony departed the licensed premises with the bottle beer. The Respondent was observed on the premises by Ms. Anthony at the time of the purchase. At hearing, nine months after the incident, Ms. Anthony appeared to be a young woman of an age that a prudent person would check to determine whether she was 21 years old. Respondent testified he had no employees at the time of the violations, but allowed "volunteers" to help him on the licensed premises, including Benette Lisa Brown. According to the Respondent, he was always on site, and in charge. The "volunteers," according to Respondent, did not work the cash register; however, Respondent's testimony was not consistent with Ms. Anthony's and that of a former "volunteer." Respondent's testimony was not credible. The person at the sales counter was working under the supervision of Respondent who was present on the premises each occasion Ms. Anthony purchased beer. At the time of the violations, Respondent did not have signs posted on the licensed premises informing customers that the vendor had a policy against serving alcoholic beverages to underage persons and informing customers that the purchase of alcoholic beverages by an underage person or the illegal use of or trafficking in controlled substances will result in ejection from the licensed premises and prosecution. The training of employees or agents was inadequate and their supervision poor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent's alcoholic beverage licensee No. 74-01498, series 2APS, be suspended for a period of 30 days, and it is further recommended that Respondent be ordered to pay a $1,000 civil penalty to the Petitioner. DONE AND ENTERED this 25th day of March, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 25th day of March, 1998. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joan Lowe, Esquire 520 North Ridgewood Avenue Daytona Beach, Florida 32114-2188 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue Whether respondent's alcoholic beverage license should be suspended or revoked on charges that its licensed lounge: (1) was resorted to be persona using illicit drugs or was used for the keeping or selling of' illicit drugs; and (2) constituted a public nuisance by virtue of such illicit drug activity.
Findings Of Fact Respondent and the Licensed Premises Respondent holds alcoholic beverage license No. 27-00312 (Series 2- COP). Under this license he owns and operates a lounge known as the "Laugh Inn" at 49 Navy Boulevard, Pensacola, Escambia County, Florida. The lounge sells beer, wine, and food to its customers. (Testimony of W. Flynn; P-13.) The Laugh Inn ("licensed premises" or "premises") has two main rooms with a connecting passageway. The front room contains tables, chairs, pool tables, and a bar. To the rear of the bar is an enclosed storage room separating the front from the rear room. The passageway connecting to the rear room is approximately 6 feet wide. On the north aide of the passageway are three restrooms. The rear room contains additional tables and chairs, pool tables, pinball machines, and a "football" table. Because the two main rooms are separated by the storage room, a person tending bar in the front room would be unable to see the rear room area. The rear room ceilings contain three exhaust fans to remove smoke and odors. (Testimony of W. Flynn; R-1.) The licensed premises does not include any area outside the lounge. No property outside of the lounge building was included in the sketch attached to respondent's application for an alcoholic beverage license. Be owns land in back of the premises on which he has placed a small trailer. Be owns a narrow strip of land on each side of the premises and a 3-foot-wide strip of land in front, facing Navy Boulevard. The front parking area--where customers ordinarily park their cars--is neither owned nor controlled by respondent. This parking area is on publicly owned property. Several windows on the premises face the parking area, but they have curtains which are ordinarily closed during business hours. There are no other windows on the premises from which the front parking area can be seen. (Testimony of W. Flynn; R-1.) II. Illicit Drug Activities on or Adjacent to Licensed Premises In April, 1982, undercover officers from the Escambia County Sheriff's Office began an investigation to determine whether violations of the controlled substances law were occurring on the licensed premises. On April 20, 1982, Deputy Linda Dees of the Santa Rosa County Sheriff's Office took delivery of a controlled substance--approximately 25.6 grams of cannabis (marijuana) --from Eric Babcock, a patron of the premises. The delivery took place on the premises at the front bar, where Deputy Bees and Mr. Babcock were seated. He placed the bag of cannabis into her purse--which was on her lap below the bar--and she paid him $35. (Testimony of Dees.) On that same day, April 20, 1982, Deputy Marilyn Medlin of the Escambia County Sheriff's Office took delivery of a controlled substance--approximately 12 grams of cannabis--from Mike Milstead, another patron. Although discussions for the purchase took place in the licensed premises--in a normal tone of voice- -the drugs were delivered and paid for in a vehicle located in the parking area in front of the licensed premises--an area neither owned nor controlled by respondent. (Testimony of Medlin; Seven days later, on April 27, 1982, Deputy Medlin purchased a controlled substance--three tablets of Lysergic Acid Diethylamide (LSD) --from Lydia Quinonas, another patron. The purchase and delivery took place in the rear room of the premises, where Deputy Medlin and Ms. Quinonas were seated. The three tablets were small in size--smaller than ordinary aspirin tablets; Ms. Quinonas delivered the tablets by placing the palm of her hand over the deputy's upturned palm and dropping the tablets. During this transaction, several other persons were in the rear room playing pool. The area was well lighted. (Testimony of Medlin.) On the same day--April 27, 1982--Deputy Dees purchased approximately 21.7 grams of cannabis from Steve Sweat and Kenny Crabtree, patrons of the bar. They also gave Deputy Bees the remaining portion of a marijuana cigarette. The delivery and sale of these drugs took place outside the licensed premises in a truck parked in the front parking area--an area neither owned nor controlled by respondent. Deputy Dees placed the drugs inside her purse where they remained until delivered to law enforcement authorities. (Testimony of Dees.) On May 3, 1982, Deputy Medlin purchased a bag containing approximately 18 grams of cannabis from Thurston Raines, a bar patron. The delivery took place in a private vehicle parked in a well-lighted area in front of the premises. (Neither the vehicle nor the area in which it was parked was owned or controlled by respondent.) Deputy Medlin immediately placed the cannabis into her purse where it remained until delivered to the Sheriff's Office. (Testimony of Medlin.) Later in the evening on May 3, 1982, Deputy Dees i1purchased approximately 17 grams of cannabis from Eric Babcock, a patron of the bar. Mr. Babcock removed a grocery bag concealed above the ceiling in the rear room of the premises. They then proceeded to a private vehicle parked in front of the premises where Deputy Dees selected one of what appeared to be several bags of cannabis in the grocery sack. After placing the bag and the grocery sack in her purse, they returned to the rear room of the premises, where Mr. Babcock returned the grocery bag to its hiding place. (Deputy Dees concealed the grocery bag in her purse when they reentered the premises because Mr. Babcock did not want to be seen carrying it.) The ceiling of the rear room was recently replaced and respondent was not informed of any cannabis having been stored in the ceiling. (Testimony of Dees.) On May 4, 1982, Louis Austie gave Deputy Medlin the remaining portion (.3 gram) of a marijuana cigarette. The cigarette was being smoked by several persons standing outside the front door of the licensed premises. When a sheriff's patrol car entered the lot, Mr. Austie quickly extinguished the cigarette and gave it to Deputy Medlin. This drug transaction took place on property neither owned nor controlled by respondent. (Testimony of Medlin.) During the evening of May 14, 1982, Deputy Medlin telephoned Kay Towney, the night bartender on the premises, and asked her if she knew anyone who would sell her marijuana. Ms. Towney replied that there was a customer on the premises who would sell it to her. Deputy Medlin then proceeded to the premises where Ms. Towney introduced her to Tom Suggs, a customer. After negotiating the sale of .25 ounces of marijuana, Deputy Medlin and Mr. Suggs proceeded to a private car in the front parking area; the delivery took place inside the parked vehicle. (In a subsequent statement given to police officers, Ms. Towney stated that she was aware of drug trafficking on the licensed premises; that she helped arrange drug transactions between her customers; that she knew Eric Babcock had hidden drugs in the ceiling; and that she knew Mr. Babcock, Mark Padgett, and one other person were drug dealers.) (Testimony of Medlin, Kiker.) On May 14, 1982, Mark Padgett approached Deputy Medlin on the premises and asked her if she wanted to buy some quaaludes. She responded that she did. He then delivered a drug to Deputy Medlin in the parking lot area in front of the premises. Subsequent laboratory analysis revealed that drug was not a controlled substance. (Testimony of Medlin.) On several occasions during her investigation, Deputy Medlin observed people in the rear room of the premises smoking what appeared to be marijuana. Since she is familiar with the odor of marijuana smoke, her conclusion is accepted as persuasive. (Testimony of Medlin.) On three or four separate occasions during April, 1982, Stewart Stamm- -a person familiar with the appearance and odor of burning marijuana--saw customers smoking marijuana in the rear room of the licensed premises. He also has purchased marijuana from patrons of th& bar approximately 30 times. (Testimony of Stamm.) On May 26, 1982, Deputy Medlin engaged in an open and loud conversation with Kay Towney, the night bartender. The conversation took place at the bar on the premises and concerned the use of quaaludes. Other customers were 5 to 7 feet away. Ms. Towney then sold to Deputy Medlin what she represented to be two quaalude tablets. 2/ (Testimony of Medlin.) On April 20, 1982, Deputy Medlin observed Kay Towney remove what appeared to be brushes from a compartment in the pool table in the rear room on the premises. A few minutes later, a patron returned to the pool table, opened the compartment and inserted several clear plastic bags containing what appeared to be marijuana. (The bags have not been recovered, so their contents have not been definitively identified.) (Testimony of Medlin.) III. Respondent was Unaware of Illicit Drug Activities on or Adjacent to Licensed Premises Respondent did not know that illicit drug activities had occurred and were occurring on or adjacent to the licensed premises; neither did Frances Flynn, his wife, who acted as the night manager until October, 1981, when she left for eight months to care for her terminally ill brother-in the State of Washington; neither did Doris Sheldon, the daytime bartender; neither did Carolyn Burch, the employee who closed the premises each morning at 2:30 a.m. (Testimony of W. Flynn, F. Flynn, Sheldon, Burch.) Respondent employed Larry Harrison and Pat Randolph to clean in and around the licensed premises on a daily basis. Mr. Harrison and Ms. Randolph would occasionally find in the parking area the remains of what they suspected to be marijuana cigarettes; but there is no evidence that they ever informed respondent of their suspicions. (Testimony of Harrison, Randolph.) No law enforcement officers, including agents of the DABT, have ever informed respondent that they suspected or had reason to believe that illicit drug activities were occurring on the licensed premises. Several regular customers of the bar testified that they had never sheen controlled substances being used, sold, or stored inside or outside the licensed premises. (Testimony of Saucier, Settles, Finney, Donlon.) All of the purchases of the controlled substances described in section II above were initiated by the undercover officers involved. Most of the described purchases and deliveries of controlled substances occurred in the front parking area--an area neither owned nor controlled by respondent and which is not part of the licensed premises. IV. Failure to Diligently Supervise and Maintain Surveillance of Licensed Premises During Evening Hours The illicit drug transactions described above occurred, for the most part, during the evening hours. During those hours--from 6:00 p.m. to 2:30 a.m.--Kay Towney served as the night bartender. Frances Flynn, wife of respondent, ordinarily served as the night-shift manager and supervised the night bartender; but Ms. Flynn was absent from October, 1981, to May, 1982, when she was caring for her ill brother in Washington. (Testimony of W. Flynn, F. Flynn.) Ms. Towney was hired by respondent toward the end of 1981--while his wife was in Washington. At the job interview, respondent asked her if she used drugs; she answered she had used marijuana in the past. During April and May, 1982--when the drug transactions already mentioned took place--Ms. Towney was the only employee regularly on the premises during the night shift. Although respondent considered her a bartender, she considered herself the night manager. (Testimony of W. Flynn.) In April and May, 1982--when the alleged violations occurred-- respondent did not normally supervise and maintain surveillance of the premises during the night shift. He would open the bar at 10:00 a.m. and work there throughout the day, until 6:00 or 7:00 p.m. Then he would go home; Ms. Towney was instructed to call him if any problems arose. During Ms. Flynn's eight- month absence, respondent employed David Saucier to periodically inspect the premises during the night shift. Mr. Saucier inspected the premises approximately ten times and did not observe any illicit drug activities on or adjacent to the premises. (Testimony of W. Flynn, Saucier.) During the time in question--April and May, 1982-- it is concluded that respondent was negligent in that he did not exercise due diligence in supervising and maintaining surveillance of the licensed premises during the evening hours. illicit drug activities occurred repeatedly on the premises-- particularly in the rear room. Such activities were open and persistent and recur- ring. Marijuana was openly smoked in the rear room. The fact that the three exhaust fans may have helped remove the smoke--thus limiting it to the rear room--does not excuse respondent's failure to monitor the rear room area. The person nominally in charge of the premises during the night shift was aware of the illicit drug activity; she not only condoned it but actively participated in it. Although respondent was normally absent from the premises during the night shift, he employed a friend to inspect the premises only about ten times during the night-shift manager's eight-month absence.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage' license be suspended for sixty (60) days, subtracting therefrom the number of days such license has been suspended due to the emergency suspension order served May 28, 1982. DONE AND RECOMMENDED this 29th day of June, 1982, 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 29th day of June, 1982.
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.
