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 The issue presented in this case is whether the Petitioner has established by a preponderance of the evidence that 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 Notice To Show Cause issued October 8, 1992.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent, Jin I. Jeon, (licensee), held license number 39-03637, series 2-APS, authorizing him to sell alcoholic beverages on the premises of the Diwan Food Store, located at 7504 N. Florida Avenue, Tampa, Hillsborough County, Florida (premises). On or about September 16, 1992, Special Agent A. Murray, Special Agent K. Hamilton, Investigative Aide D. Snow and Intern M. Dolitsky went to Diwan Food Store to investigate complaints of alcoholic beverage sales to minors. Investigative Aide D. Snow's date of birth is November 11, 1973. She was 18 years of age on September 16, 1992. In accordance with the intructions of the law enforcement officers, Investigative Aide Snow entered the premises and selected a one-quart bottle of Budweiser beer, an alcoholic beverage, from a cooler. The bottle of beer was sealed and clearly marked as an alcoholic beverage. She proceeded to the cash register, where the Respondent was waiting. Snow paid the Respondent, who rang up the sale on the register. The Respondent did not request to see Snow's identification, nor did he ask her whether she was at least 21 years of age. The Respondent's defense was that he was not the person who sold Snow the beer. When he was confronted with the charges, he disclaimed any knowledge of them and blamed an employee, Min Sup Lee, whom he believed must have been the person involved in the sale. He immediately fired Lee because of the charges. Lee testified that he was employed by the Respondent from March 1992 through January, 1993. Lee testified that he worked for Respondent six days a week, primarily at night, and that he was the person in charge of the cash register the majority of the time. He asserted that he probably worked the cash register on the night of the violation. However, he denied ever having seen either Special Agent Murray or Special Agent Hamilton, or Investigative Aide Snow, and he denied any knowledge of the incident. It seems clear that Lee was not the person who sold the beer to the Investigative Aide Snow. Communication problems (the Respondent's English language limitations) may be at the root of the Respondent's inability to understand and to carry out his responsibilities as a vendor under the Beverage Law. Later on the evening of the sale in question, Special Agent Murray returned to the store to talk to the Respondent about the violation but she was not confident that he understood anything she was saying. It is possible that, due to the Respondent's lack of facility with the English language, he did not understand that Murray was charging him with illegal sale of alcoholic beverages to a minor and that, when, some time later, the Respondent came understand the nature of the charge against him, he assumed that his employee must have been responsible. On the other hand, it is possible that the Respondent knows full well his responsibilities under the Beverage Law, and knows full well that he failed to meet those responsibilities on September 16, 1992, but that he knowingly and unfairly tried to use his employee to avoid his own responsibity. In any event, it is found that it was the Respondent, not Lee, who sold the beer to Snow and that, in all likelihood, Lee either was not working on September 16, 1992, or was occupied elsewhere with other responsibilities when Snow and Murray were in the store. The Division's standard penalty for the violation alleged in the Notice to Show Cause is a twenty-day license suspension and a thousand dollar ($1,000.00) civil penalty. This standard penalty has been noticed as proposed Rule 7A-2.022, Penalty Guidelines, pending public workshop and approval.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: (1) finding the Respondent guilty as charged in the Notice to Show Cause; (2) suspending the Respondent's alcoholic beverage license for twenty days; and (3) ordering the Respondent to pay a $1,000 civil penalty. RECOMMENDED this 27th day of July, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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, 1993. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32399-1007 Jin I. Jeon 7504 N. Florida Avenue Tampa, Florida 33604 John Harrison, Acting Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Donald D. Conn, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee Florida 32399-1000
The Issue Whether petitioner's application to change corporate 7 officers and stockholders should be granted, or denied on the grounds that the application is incomplete and the Division of Alcoholic Beverages and Tobacco has notified petitioner that administrative charges will be filed against it.
Findings Of Fact Based on the evidence presented, the following facts are determined: Petitioner, holding Alcoholic Beverage License No. 16-443, Series 2- COP, does business as Nick's Italian Kitchen at 3496 North Ocean Drive, Ft. Lauderdale, Florida. On February 26, 1982, DABT notified petitioner that it [DABT] "intends to file administrative charges against your [petitioner's] license for conviction of [a] corporate officer of [a] felony (tax evasion)." (Ex. 6) On September 15, 1982, petitioner corporation filed with DABT an application to change its officers and stockholders. The application, with attachments, indicated that Dominic Santarelli wished to transfer the stock of petitioner, by gift, to Dominic A. Santarelli, his son. Attached to the application was a representation by Sy Chadroff, Dominic Santarelli's attorney, that Dominic Santarelli owned one hundred percent of the stock of petitioner corporation, having acquired the balance (fifty percent) of the corporation's stock from Thomas J. and Frances Cummings pursuant to an Option Agreement dated September, 1974; and that the intended stock gift was contingent upon DABT's approval of the application. (Ex. 5) By letter of October 12, 1982, DABT notified petitioner that it was unable to continue processing the application because, among other things, the following information was missing: (1) cancelled checks and other documentation of stock purchase by Dominic Santarelli from the Cummingses and (2) further documentation of the stock gift from Dominic Santarelli to Dominic A. Santarelli, his son. Ex. 6) On October 14, 1982, attorney Chadroff responded to DABT's request for information. He replied that Dominic Santarelli acquired the Cummings stock for $10.00 pursuant to the Option Agreement attached to the application; reiterated that as a consequence, Dominic Santarelli owned one hundred percent of the corporate stock; confirmed that Dominic Santarelli had conveyed the stock, by gift, to Dominic A. Santarelli, his son; and asserted that there could be no further documentation of the gift until the gift tax return is filed. (Ex. 7) On December 14, 1982, DABT informed petitioner that the application for change of officers and stockholders was being denied on grounds that (1) the application failed to show how Dominic Santarelli came into possession of the fifty percent of the corporation stock owned by the Cummingses and (2) documentation had not been provided indicating how Dominic A. Santarelli (the son) had obtained one hundred percent of the corporate stock from Dominic Santarelli (his father). (Ex. 10) On December 21, 1982, petitioner challenged DABT's denial of its application and requested a Section 120.57 hearing. Thereafter, DABT granted the request and forwarded this case to the Division of Administrative Hearings. (Ex. 11) On March 23, 1983, DABT filed an amendment to its December 14, 1982,denial, supplying an additional ground: that the applicant (petitioner) was not entitled to approval of the transfer because of DABT's prior notice of intent to file administrative charges, referring to the February 26, 1982, notice issued more than one year earlier. As of April 20, 1983, the date of hearing, the promised administrative charges had not yet been filed by DABT. DABT has presented no evidence, justifying, excusing, or explaining this extensive delay in filing charges. (Ex. 13) On October 6, 1981, a jury of the U.S. District Court of the Southern District of Florida, found Dominic Santarelli guilty of one count of violating the federal income tax code. (Ex. 8) The only evidence of record offered to establish that Dominic Santarelli, in fact, exercised his right under the Option Agreement to purchase fifty percent of the company's stock from the Cummingses is the written representation by attorney Chadroff, Dominic Santarelli's counsel. There is no evidence that petitioner ever applied for or obtained the necessary DABT approval for any such stock transfer. To the contrary, it appears that DABT's records continue to show that the Cummingses own fifty percent of the corporation's stock.
Recommendation Based on the foregoing, it is RECOMMENDED that petitioner's application be denied on grounds of incompleteness, in that it has not been shown how Dominic Santarelli obtained fifty percent of the stock of petitioner corporation owned (on DABT's books) by Thomas and Frances Cummings. DONE and RECOMMENDED this 2nd day of June, 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 2nd day of June, 1983.
Findings Of Fact There is no dispute that the licensee is holder of Beverage License Permit no. 23-1940, 1-COP. On January 23, 1976, 1/ Ed Wayne Pfitzenmaier, a beverage officer for approximately 6 years visited the Calder Race Track stable area and on the dates January 23 and January 30, witnessed the sale of food from a vending truck. He approached the truck where the sales of food and other items were taking place and approached one Joann McFadden, who according to Pfitzenmaier is an employee of Calder Race Track Concessions, Inc. He viewed the windshield of the vehicle and noted that it did not have a permit authorizing the transportation of alcoholic beverages. He phoned the Department of Motor Vehicles dispatcher to determine the registered owner of the vehicle and it was later revealed by the Department that the vehicle was registered to Calder Race Track Concessions, Inc. Pfitzenmaier and Officer Bokberg witnessed the sale of a sealed can of Schlitz and Falstaff Beer on the dates January 23 and 30. On the second occasion, January 30, Pfitzenmaier asked to speak to the agent in charge and he was referred to Mr. Cleissnor who is the manager of the concession area. He also spoke to a Mr. Fernandez, who as it later turned out, was and is one of the licensee's corporate officers. Pfitzenmaier was given a transfer sheet which reflected the transfer of goods i.e., food and other beverages from the track kitchen to the vendor's truck. It is clear that the licensee has not made application from the Division of Beverage to obtain a permit to transport alcoholic beverages in the vehicle witnessed by officers Pfitzenmaier and Bokberg. The Licensee's agent testified that the sale of food and other beverages including beer was done exclusively for the use and consumption of its employees and that there was no overt act on the licensee's part to violate any of the alcoholic beverage laws. It was also noted that the application for beverage license was accompanied by a sketch of the entire race track stable area and there was no stipulation in the grant of the license indicating that the sale of alcoholic beverages were to be restricted to the concession area. In fact, the application itself reveals that the location of the business designates the street address 21001 Northwest 27th Avenue/stable area, Opa Locka, Dade, Florida. Based on this fact and the concluding fact that the sale took place in the stable area, I therefore find and conclude that the sale of the alcoholic beverages, to wit, two cans of beer, was not in violation of Florida Statutes 562.06, inasmuch as the stable area was the area designated in the license application itself. I further find that the licensee, by permitting to be transported alcoholic beverages in a vehicle not authorized to transport alcoholic beverages by a permit violated Administrative Rule 7A-3.27.
The Issue This case concerns the issue of whether the Respondent's beverage license should be suspended, revoked, or otherwise disciplined for failure to remit taxes for the months of June and July, 1982. On September 14, 1982, Petitioner served a notice to show cause on the Respondent, Action "1" Distributing, Inc. The notice to show cause alleged that the Respondent had failed to remit $38,692.80 taxes due to have been remitted with Respondent's June 10, 1982, monthly alcoholic beverage report and $5,749.40 required to have been remitted with Respondent's July 10, 1982, monthly alcoholic beverage report. The matter was referred to the Division of Administrative Hearings for a formal hearing, and pursuant to notice, the formal hearing was scheduled for March 16, 1983. At that hearing, the Respondent was represented by Susan Svedin, who after inquiry, was determined to be a proper representative of the company. At the formal hearing, the Petitioner called as its witnesses Lt. Thomas Stout, Supervising Beverage Agent Officer for the Ft. Myers District, Beverage Officer Robert Baggett, and Sharon Fox, Auditor for the Division of Alcoholic Beverages and Tobacco. Petitioner offered into evidence seven exhibits which were admitted without objection. Susan Svedin testified on behalf of the Respondent. Counsel for the Petitioner submitted proposed findings of fact and conclusions of law to be considered by the undersigned Hearing Officer. To the extent that such proposed findings of fact and conclusions of law are not adopted in this order, they were considered by the undersigned Hearing Officer and determined to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact Respondent-holds Alcoholic Beverage License No. 46-945, Series J-DBW. Until it ceased to do business and dissolved, the Respondent operated an alcoholic beverage distributing business located at 3955 Edwards Street, Ft. Myers, Florida. Florida Statute Section 563.05 requires all distributors of malt beverages in Florida to pay an excise tax on beverages sold. Pursuant to Florida Statute 561.55 (1981), the Respondent submitted its wholesale distributors beer tax report for June, 1982, to the Division of Alcoholic Beverages and Tobacco. (See Petitioner's Exhibit 2). That report showed that for the calendar month of June, the Respondent had excise taxes due of $38,692.80. Subsequent to the filing of that report, Sharon Fox, an auditor for the Division of Beverage, performed an audit of the June, 1982, report and determined that it was correct and accurate and that the tax reflected in that report as due was correct. The tax in the amount of $38,692.80 was in fact the correct amount due and owing and was never remitted to the Division of Alcoholic Beverages and Tobacco. Respondent also submitted its monthly beer tax report for July, 1982, and in that report computed the excise tax owed to be 5,759.40. (See Petitioner's Exhibit 3). After receiving this report, the Division of Alcoholic Beverages and Tobacco performed an audit of the matters contained within that report and found them to be correct in all respects. The report correctly stated the tax due the Division of alcoholic Beverages and Tobacco from Respondent to be 5,759.40. Respondent has not paid any portion of that tax.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's Alcoholic Beverage License No. 46-945, Series J-DBW, be revoked. DONE and ENTERED this 29th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 April, 1983. COPIES FURNISHED: Ms. Janice G. Scott Ms. Susan F. Svedin Staff Attorney 2824 S.E. 18th Court Department of Business Cape Coral, Florida 33904 Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact The Respondents, J. F. Walthier III and Andrew Erickson, are the holders of a current valid beverage license, No. 46-00210, Series 2-APS, held in the name of Walthier, J. F. III and Ericks. This license is for a premises located at 4721 Palm Beach Boulevard, Fort Myers, Lee County, Florida. The Respondents conduct their business at this licensed premises under the name Foam and Fizz. This beverage license series entitled the Respondents to sell a class of alcoholic beverage for consumption off the licensed premises. One of the categories of alcoholic beverages allowed for sale under the terms and conditions of the license is beer. The subject beverage license was issued by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. The Petitioner is charged with the licensure and regulation of the several alcoholic beverage license holders within the State of Florida. In pursuit of its function, the Petitioner has brought an Administrative Complaint/Notice to Show Cause against the named Respondents and the terms and conditions of that complaint may be found in the issue statement of this Recommended Order. The facts in this case reveal that between 9:00 p.m. and 10:00 p.m. on January 25, 1980, three young men under the age of eighteen drove to the licensed premises for purposes of purchasing beer. Once the car was parked, Ira J. Frasure and dames Craig McDowell exited the car. On that date, Ira J. Frasure was seventeen years of age and James Craig McDowell was sixteen years of age. They left Frank Edward Gordon in the automobile, where he would remain during the pendency of the other juveniles' activities in the licensed premises. Once in the store, Frasure retrieved a six-pack of Budweizer beer and McDowell picked up several single cans of Budweizer beer. The beer which had been picked up by the juveniles was presented at the checkout counter to Barbara Joyce Walthier, the wife of one of the licensees and an employee in the licensed premises. At that point, Frasure paid Walthier for the beer from money which he had and money which had been given to him by McDowell. The juveniles then left the store. Neither of the juveniles had been asked for any form of identification prior to the sale of the alcoholic beverages, nor had they been asked about their ages, and they did not make any comment concerning their ages. Frasure's date of birth is September 30, 1962, and at the time of the purchase he was approximately six feet one inch tall and had a mustache. Frasure gave testimony in the course of the hearing and appeared to be eighteen years of age or older at that time. Investigative officers who saw Frasure on January 25, 1980, said they felt he appeared to be less than eighteen years of age. McDowell's date of birth is February 9, 1963, and at the time of the hearing he appeared to be less than eighteen years of age, and this comported with the impression of the investigating officers when they saw him on January 25, 1980. At the time Frasure purchased the beer from the clerk, Barbara Joyce Walthier, she was not busy with other customers to the extent that it would hinder her ability to check the appearance of Frasure and McDowell; however, business on the evening in question had been moderate to heavy at times and she does not remember seeing Frasure and McDowell. Barbara Joyce Walthier was working in accordance with a set of instructions from the licensees, in the person of her husband, to the effect that she should always require written identification prior to purchase from those persons who looked like they should be "carded". Moreover, she had been instructed that those persons who have beards are not normally "carded". Other factors to be considered, per instruction she had been given, were to require written identification from those persons who acted suspiciously while in the store, or who parked a great distance away from the store after driving slowly by. In keeping with these instructions, she routinely requires written identification from patrons. Finally, there was a sign in the licensed premises which stated, "Under age don't ask".
Recommendation In view of the fact that this is a single count violation and in view of the physical appearance of Ira J. Frasure at the time of the alcoholic beverage purchase in question, that appearance leading one to believe that he was eighteen years of age or more, it is RECOMMENDED that the Respondents be required to pay a fine in the amount of one hundred fifty dollars ($150.00) in lieu of suspension or revocation and it is FURTHER RECOMMENDED that if this civil penalty is not paid within thirty (30) days of the rendition of the final order, that the Respondents' beverage license be suspended for a period of fifteen (15) days. DONE AND ENTERED this 20th day of May, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee Florida 32301 (904) 488-9675 COPIES FURNISHED: James N. Watson, Esquire Office of General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Allan Parvey, Esquire 2201 Main Street Post Office Box 2366 Fort Myers, Florida 33902
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
The Issue The issue for determination is whether Respondents' alcoholic beverage licenses should be disciplined for violation of Chapter 561, Florida Statutes. Resolution of this issue requires a determination of whether Respondents correctly reported and remitted alcoholic beverage surcharges required for the audit period of July 1, 1990 through March 31, 1991. Petitioner claims that Respondent Southeast Central, Inc., was deficient in reporting, surcharge payments, and penalties for the period July 1, 1990, through March 31, 1991, in the total amount of $4,121.80, contrary to Section 561.501, Florida Statutes. Similarly, Petitioner alleges that Respondent Central Restaurants, Inc., was deficient in reporting, surcharge payments, and penalties for the same period in the total amount of $96.72.
Findings Of Fact Respondents are two corporations. Southeast Central Inc., operating as the Pirate's Den Seafood Cafe, holds license number 26-03346 SRX, series 4-COP, for premises located at 5023 Central Restaurants, Inc., operating as the Seafood Place, holds license number 26 Jacksonville, Florida. Robert Domin is president, sole corporate officer and sole stockholder of both corporations. Petitioner's auditor performed audits with regard to records of both Respondents, following their random selection by Petitioner, to verify Respondents' compliance with surcharge requirements imposed by Section 561.501, Florida Statutes, on the retail sales of "on premise consumption" of alcoholic beverages on licensed premises. The audits covered the period of July 1, 1990 through March 31, 1991, for both Respondents, and were performed during the period of early July through August 2, 1991. Alcoholic beverage licensees are afforded an opportunity to elect to report and pay the surcharge by either the purchase method or the sales method. Under the purchase method, a licensee pays the surcharge on alcoholic beverages purchased from authorized distributors. Under the sales method, licensees pay the surcharge on alcoholic beverages sold for consumption on the premises. Each Respondent submitted Petitioner's form DBR 44-005E, reflecting their election of the sales method. Form DBR 44-005E also requires disclosure of the licensee's inventory of alcoholic beverages on hand prior to opening of business on July 1, 1990. A licensee's reporting under the sales method is audited by the Sales Depletion Method. Under this methodology, a beginning inventory is ascertained. Second, purchases made by the licensee for the audit period are computed. Third, an ending inventory for the audit period is ascertained. Fourth, Gross Gallonage Available For Sale is computed by adding the beginning inventory to the purchases made during the audit period and then subtracting the ending inventory. Fifth, the Net Gallonage Available For Sale during the audit period is calculated by subtracting from the Gross Gallonage an allowance for spillage and a cooking adjustment. The end result is termed the Adjusted Sales Gallonage from which amount the amount of surcharge owed for the audit period is determined. Respondents' beginning inventory figures were provided by their employee, Heather Scrape. This finding is further supported by the identification of Scrape's handwriting on Respondents' exhibit number 2 at the final Hearing by Respondent's president as being that of Scrape. The figures written on the exhibit by Scrape correspond to figures earlier provided by Respondents to Petitioner on Form DBR 44-005E and corroborate testimony of Petitioner's auditor that Scrape provided Petitioner's audit personnel with beginning inventory information for Respondents. Scrape, no longer employed by Respondents, still lives and works in the area although she did not testify at the final hearing. Distributor invoices at each Respondent location were used to determine alcoholic beverage purchases by each Respondent for the audit period. The ending inventory for the audit period for each Respondent was provided to Petitioner's auditor by Respondents. The auditor considered a spillage allowance of 10 percent for draft beer and five percent for liquor, bottled or canned beer, wine coolers and wine. The spillage allowance is enunciated in Emergency Rule 7AER 90-5, effective July 1, 1990, and also codified in Rule 7A- 4.063, Florida Administrative Code. Respondents provided no documentation for cooking adjustment amounts. The audit for Respondent Southeast Central, Inc., revealed a deficiency in surcharge reporting and payment of $3,294.15 with a late penalty due in the amount of $827.65. The audit for Respondent Central Restaurants, Inc., revealed a deficiency of $84.24 with a late penalty of $16.85 which, after adjustment for spillage allowance, totalled $96.72. At request of Respondents, Petitioner's auditor returned to the premises of each licensee and re-conducted the audit. No substantial corrections were made as a result of this effort with the minor exception of discovery of additional invoices on the premises of Respondent Southeast Central Inc., which increased, by a minor sum, the surcharge amount and penalty to the current amounts. The deficiency for Respondent Southeast Central, Inc., represents 55 percent of the total surcharge due for the audit period. The deficiency for Respondent Central Restaurants represents 14 percent of the total surcharge due for the audit period. Petitioner's Form DBR 44-005S states that the surcharge is to be calculated on gallons and/or ounces by reporting licensees. A conversion calculation sheet is provided on the back of the form to assist retailers in converting alcoholic beverage measurements into gallons. Respondents' cash registers record the price and number of alcoholic beverages sold in terms of units, i.e., three glasses of beer, two bottles of beer, one glass of wine, etc. Respondents predetermined how many ounces of an alcoholic beverage should be in a particular drink. Respondents then used this ideal measurement or standard in calculating the surcharge due. The calculation involved multiplying the ideal standard or measurement by the units recorded through the cash registers as sold. There is no actual record made of the amount of alcoholic beverage in a unit sale. Sometime after August 2, 1991, Respondents provided Petitioner's auditor with a copy of a beginning July 1, 1990 inventory report for Respondent Southeast Central, Inc., derived from application of the ideal measurement or standard as a multiplier of units of recorded sales. This action by Respondents followed completion of Petitioner's initial audits and notice to Respondents of delinquency in surcharge payment amounts. Respondents presented no explanation as to why this inventory was not provided to Petitioner's auditor in the course of her initial audit. The inventory document was also not authenticated in accordance with Section 90.901, Florida Statutes, and is not credited at this time for establishing a beginning inventory for Respondent Southeast Central, Inc., at variance with the beginning inventory reported for this Respondent on Petitioner's form DBR 44-005E. Petitioner permits vendors a period of 30 days within which to remit delinquent surcharge payments following notice of delinquency. Neither Respondent complied with Petitioner's demands to remit delinquent surcharge payments discovered as the result of Petitioner's audit.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring payment by Respondent in Case No. 93-0322 in the amount of $4,121,80, the amount of total tax and liabilities claimed by Petitioner to be due; and requiring payment by Respondent in Case No. 93-0329 of the amount of $96.72, the amount of the total tax and liabilities claimed by Petitioner to be due in that case. DONE AND ENTERED this 4th day of August, 1993, in Tallahassee, Leon County, Florida. DON W. 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 4th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0322 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. 1.-5. Accepted, not verbatim. 6.-7. Rejected, subordinate to HO findings. 8.-13. Accepted, not verbatim. Respondent's Proposed Findings. 1.-7. Accepted, not verbatim. 8.-12. Rejected, subordinate to HO findings. Rejected, not relevant although this is a duty of the auditor. Accepted. Rejected, argumentative. Rejected, no evidence presented as to theft or overpouring. Further, Respondents were given benefit of spillage allowance. 17.-18. Rejected, weight of the evidence. COPIES FURNISHED: Miguel Oxamendi, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert Domin, President Southeast Central, Inc. Central Restaurants, Inc. 4359 Roosevelt Boulevard Jacksonville, Florida 32210 Jack McCray General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 George Stuart, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 John Harris, Director Division of Alcoholic Beverages Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
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
The Issue Whether petitioner's application for transfer of an alcoholic beverage license should be granted, or denied on the ground that there is a pending disciplinary action against the license holder.
Findings Of Fact Timeliness of DABT's Denial of Application for Transfer On May 26, 1981, petitioner filed with DABT's Miami office an application for transfer of alcoholic beverage license No. 23-276, Series 4-COP. (Testimony of Harris, Caram; Ex. 1.) Upon discovering that the fingerprints of Richard J. Mandell, chief corporate officer of petitioner, were not on file and did not accompany the application, DABT notified Mr. Mandell, no later than June 24, 1981, that his fingerprints would be required. 2/ (Testimony of Harris, Caram.) In response, Mr. Mandell furnished the requested fingerprints to DABT on June 24, 1981. At that time, DABT treated the license application as complete. (Testimony of Harris, Caram.) By letter dated September 22, 1981, DABT notified petitioner that its application was disapproved because of a pending administrative case against the license. (Ex. 2A.) II. Denial of Petitioner's Application When petitioner filed its application for transfer of the alcoholic beverage license in question, administrative proceedings to revoke or suspend the license had been instituted and were pending against the licensee, Astral Liquors, Inc., d/b/a "Foxxy Laidy," a bar and lounge. (Prehearing Stipulation.) These disciplinary proceedings were instituted because of the conviction of Eugene Willner--Astral Liquors, Inc.`s sole stockholder--of a federal felony unrelated to operation of the Foxxy Laidy bar and lounge. (Testimony of Willner.) By written contract dated April 10, 1981, petitioner agreed to purchase from Astral Liquors, Inc., the Foxxy Laidy, located at 6507 Southwest 40th Street, Miami, Florida, for $175,000. Closing was contingent upon DABT approving transfer of the alcoholic license to petitioner. (Ex. 3.) DABT disapproved petitioner's application to transfer the license solely on the ground that there were pending proceedings against the license holder. DABT does not question whether the sale of Foxxy Laidy to petitioner is a bone fide, arms-length transaction or the qualifications of petitioner to hold an alcoholic beverage license. (Testimony of Harris; Ex. 2A, Ex. 8, Ex. 9.) DABT presented no evidence in support of denying petitioner's application other than there were pending administrative proceedings against the licensee. It did not explain or offer any reasons why, in this case, it should exercise its discretion by denying petitioner's application. To the extent its decision rests on non-rule policy considerations, it did not explicate them or subject them to scrutiny at hearing.
Recommendation Based on the foregoing, it is RECOMMENDED: That the application for transfer of alcoholic beverage license No. 23-276, Series 4-COP, be granted. DONE AND RECOMMENDED this 9th 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 9th day of June, 1982.
