The Issue As to DOAH Case No. 96-4984, whether Respondent committed the offenses alleged in the Administrative Action dated March 13, 1996, and the penalties, if any, that should be imposed. As to DOAH Case No. 97-0708, whether Respondent committed the offenses alleged in the Administrative Action dated November 4, 1996, and the penalties, if any, that should be imposed.
Findings Of Fact On December 29, 1995, Respondent applied for a license authorizing the sale of beer and wine for consumption on the premises of her business known as Mrs. B's Restaurant and Lounge, which was located at 342 Martin Luther King, Jr., Boulevard, Stuart, Florida. Thereafter a temporary license, numbered 53-01741, series 2-COP, was issued to Respondent. The application executed by Respondent on December 29, 1995, contained a Personal Questionnaire that the applicant submitted under oath. The Personal Questionnaire required certain information about the individual applicant, including her criminal history. Respondent answered in the affirmative to the question whether she had ever been arrested, and in the negative to the question whether she had ever been convicted of a crime. As part of the application process, Respondent was fingerprinted so that the Florida Department of Law Enforcement could check her criminal record. Respondent was arrested on four separate occasions and was convicted of a crime on one occasion. On May 31, 1998, Respondent was arrested by the St. Lucie County Sheriff's office for failure to redeliver a hired vehicle. On September 16, 1988, Respondent was placed on probation for this offense, but adjudication of guilt was withheld. On January 29, 1989, Respondent was arrested by the Martin County Sheriff's Office for violation of probation. On January 4, 1992, Respondent was arrested by the St. Lucie County Sheriff's Office on a charge of robbery, a felony. On November 10, 1992, Respondent entered a plea of nolo contendre to a reduced charge of resisting a merchant, a first degree misdemeanor, and was subsequently sentenced. On March 20, 1992, Respondent was arrested by the St. Lucie County Sheriff's Office on charges of robbery and battery. These charges were subsequently dismissed. Respondent's answers on her Personal Questionnaire failed to disclose the required particulars of her criminal history, including information as to the charges, the dates and places of the arrests, the arresting agencies, and the dispositions. Respondent failed to disclose that she had been convicted of a crime. The uncontroverted evidence was that a permanent license was never issued by Petitioner to Respondent and that, prior to the formal hearing, Respondent's temporary license was revoked by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that, pursuant to Section 559.791, Florida Statutes, denies Respondent's application for permanent licensure and sustains the revocation of her temporary license. It is further recommended that DOAH Case No. 96-4984 be dismissed. DONE AND ENTERED this 2nd day of June, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2nd day of June, 1998. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mrs. Mary Ann Brinkley, pro se Mrs. B's Restaurant Post Office Box 765 Stuart, Florida 34995 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 Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Conclusions THIS CAUSE came before the Director, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division), and enters this Final Order in the above styled cause pursuant to authority vested by Chapter 120, Florida Statutes. LI TAT 1. On September 20, 1997, the Division issued an Administrative Action against Respondent, a copy of which is attached hereto and incorporated by reference. 2. On April 15, 1997, an administrative hearing was held in 1 of 6 this matter in Ocala, Florida, before Administrative Law Judge Donald R. Alexander, the Division of Administrative Hearings, pursuant to §120.569 and §120.57(1), Florida Statutes. 3. On May 12, 1997, the Administrative Law Judge issued his Recommended Order in this cause. IN {e) T The Division hereby adopts and incorporates by reference the Findings of Fact, numbered 1 through 9, as set forth in the Recommended Order.
Findings Of Fact On November 17, 1981, Petitioner submitted a preliminary application (Exhibit 5) for a New Quota alcoholic beverage license. This application, which was sworn to by Petitioner, contained the query whether applicant had been convicted in the past five years of any beverage law violation. To this question Petitioner marked the "No" block. This application was filled out by each applicant in pencil, gone over with the applicant by a beverage office supervisor, given to a secretary to type, and returned to the applicant to check for completion and accuracy before the applicant executed the application by signing the affidavit at the bottom of the application in which, under oath, he swore to the accuracy of the information contained in the application. On December 26, 1977, Petitioner was arrested for allowing alcoholic beverages to be served and consumed after hours in his father's bar. He was convicted of this misdemeanor and sentenced to serve ten (10) days in the county jail by order entered January 20, 1978 (Exhibit 4). As a result of this conviction of a beverage law violation within five years of the filing of the application for a New Quota beverage license, the information contained on the application was untrue and Petitioner was not then eligible for a New quota license. After Petitioner's application for a New Quota license was facially approved, Petitioner was required to, and did, furnish fingerprints to Respondent. A check of the fingerprint records disclosed Petitioner's prior conviction of a beverage law violation in January, 1978. No evidence was presented showing the date Petitioner applied to have a New Quota 4-COP license issued, but Petitioner testified this occurred more than five years after he was convicted of the beverage law violation, i.e., after January 20, 1983. By letter dated February 14, 1983 (Exhibit 2) , this application was denied because of the beverage law violation and the false entry in the application sworn to as true by Petitioner. Had Petitioner answered the question on the New Quota application regarding a beverage law violation within the past five years accurately, his application would have been disapproved. Again, no evidence was submitted when Petitioner submitted his application for a 2-COP license, but he testified this was after his 4-COP license application had been denied, i.e., after February 14, 1983. At this time an answer that he had not been convicted of a beverage law violation within the past five years would have been truthful. Petitioner presented his father and a friend of his father, who had worked part-time at the father's pizza shop, to testify that Petitioner had always been truthful in his dealings with them.
Findings Of Fact The Respondent, Linda Diane Kinsey, holds Beverage License No. 63-1339, Series 2-CO. Under this license, she operated a business establishment named Fred Said's located at 913 West Robinson Street, Lakeland, Florida. On December 3, 1982, Beverage Officer Randall Robert West, accompanied by Dennis B. Russo of the Polk County Sheriff's Department, initiated an undercover investigation of Fred Said's. They arrived at the licensed premises approximately 2 00 p.m. Fred Tucker was behind the bar and served them two beers. The Respondent, Linda Diane Kinsey, was seated on a stool behind the bar. After a short time, Fred Tucker went out in the back of the bar to work on some construction. While he was out back, Deputy Russo approached Tucker about buying some marijuana. Tucker indicated he had some and they went back into the bar where Tucker retrieved a plastic bag of what he represented to be marijuana. The bag was taken from a drawer behind the bar and when Tucker opened the drawer, Officer West saw other bass of what appeared to be marijuana in the drawer. Tucker handed the bag to Deputy Russo who paid him 825. The bag was later verified by laboratory analysis to contain approximately 9 grams of cannabis, a controlled substance listed in Florida Statute 893.03. (See Petitioner's Exhibit 1). When Fred Tucker took the bag of marijuana out of the drawer, the Respondent, Linda Diane Kinsey, was still seated behind the bar a few feet from the drawer and Fred Tucker. The drawer was in a clear line of sight from where she was seated. On December 14, 1982, Officer West, along with Investigator Russo and Deputy Nicolas H. Del Costello, returned to Fred Said's. When they arrived, the Respondent, Linda Diane Kinsey, was seated behind the bar. Officer West asked Ms. Kinsey if Fred Tucker was around. He then asked "Does Tucker have a bag for sale?" "Bag" is a common term for marijuana. In response to the question about the "bag for sale", Linda Diane Kinsey nodded her head yes and then got up and went to the back of the bar and called Tucker. Tucker came in and walked over to the game area where officer West and his companions were. After asking what they wanted, Tucker took a bag of marijuana out of his docket and sold it to Officer West. The bag was later confirmed by laboratory analysis to contain approximately 12 grams of cannabis, a controlled substance listed in Chapter 893.03, Florida Statutes. (See Petitioner's Exhibit 2). When the transfer of marijuana took place on December 14, 1982, on the licensed premises, the Respondent, Linda Diane Kinsey, was seated behind the bar approximately 30 feet away from where the transfer took place. On December 16, 1982, Officer West, accompanied by Investigator Russo, returned to Fred Said's with a search warrant. In the course of the search of the licensed premises, two plastic bags containing seeds were found. These bags were in the drawer behind the bar from which Fred Tucker had taken the bag of marijuana on December 3, 1982. The bags of seeds were later verified by laboratory analysis to contain 25 grams and 4.6 grams of cannabis, a controlled substance listed in Florida Statute 893.03. During December, 1982, Mr. Fred Tucker was employed as manager of Fred Said's. On December 3, 1982, he was tending bar and was observed signing an invoice for a beer delivery that occurred while Officer West and Investigator Russo were present. The Respondent testified that she was not aware of Fred Tucker's drug activity. However, she and Mr. Tucker were living together prior to December 16, 1982, and they scent a lot of time together. She was also present in the bar at the time of the purchases on December 3 and December 14. She admitted on cross examination that she was not sure he was dealing but she never asked. She did not recall telling Officer West on December 14 that Fred Tucker had a bag for sale but did not specifically deny such a conversation. She also testified that even while sitting behind the bar, she was not aware of what was going on in the licensed premises. There was no evidence that she, as licensee, had taken any steps to ensure that the premises were properly supervised and not being used for illegal purposes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's alcoholic beverage license he 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: Daniel J. Bosanko, Esquire 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 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Ms. Linda Diane Kinsey 3333 Baird Street Lakeland, Florida 33805
The Issue Whether the Respondents, ORLANDO MULKEY and LORETTA MULKEY, d/b/a SONNY'S SERVICE CENTER, should have their alcoholic beverage license suspended or revoked.
Findings Of Fact The Respondents ORLANDO MULKEY and LORETTA MULKEY hold Beverage License No. 36-00019, Series No. 2-APS for the premises known as SONNY'S SERVICE CENTER located at 635 and 637 Alabama Avenue, Clewiston, Florida. On July 14, 1987, the Respondent ORLANDO MULKEY was adjudicated guilty of the offense "Sale of a Controlled Substance, Cocaine" in Circuit Court Case No. 87-59 in Hendry County, Florida. Although the specific statute number was not set forth in the judgment and sentence as suggested in the uniform judgment and sentence found in Rule 3.986, Rules of Criminal Procedure, it appears that ORLANDO MULKEY was found guilty of a felony under Section 893.13(1)(a) and Section 893.03(2)(a)4, Florida Statutes. This finding is based upon the length of the probation term (5 years) and the written description of the offense in the judgment. The judgment and sentence were a result of a criminal offense which took place on November 13, 1986. During the hearing, after receiving instruction from the Hearing Officer concerning his Constitutional right against self-incrimination, which he appeared to understand, ORLANDO MULKEY admitted to possessing crack cocaine on the premises of SONNY'S SERVICE CENTER on November 13, 1986, during his management shift. ORLANDO MULKEY and LORETTA MULKEY conducted business in SONNY'S SERVICE CENTER on different shifts. LORETTA MULKEY was not aware that ORLANDO MULKEY, her co-licensee, was using crack cocaine. She was not aware that he had crack cocaine in his possession on the licensed premises during his shift. As the managerial and supervisory responsibilities were divided between the co- licensees on the basis of their respective shifts, LORETTA MULKEY, had no connection with any drug related activities. On June 18, 1987, ORLANDO MULKEY quitclaimed his interest in the real property where SONNY'S SERVICE CENTER is located to LORETTA MULKEY. Although ORLANDO MULKEY and LORETTA MULKEY are co- licensees, there is no evidence in the record to establish that a legal entity relationship exists between the MULKEYS in the conduct of business as SONNY'S SERVICE CENTER.
The Issue The Administrative complaint dated September 19, 1994, alleges that Respondent, a licensed class "D" security officer, violated section 493.6118(1)(j), F.S. by committing a battery on or about January 28, 1994. The issue is whether that violation occurred and, if so, what discipline is appropriate.
Findings Of Fact At all times relevant to this action, Respondent, Ivan Machiz, was licensed as a class "D" security officer, license number D91-19035, by the Department of State, Division of Licensing, pursuant to chapter 493, F.S. The proceeding at issue is the only disciplinary action in evidence against Mr. Machiz' license. On January 28, 1994, Mr. Machiz visited Jameryl Curley at her apartment in Tampa, Florida. Mr. Machiz and Ms. Curley had been roommates. Mr. Machiz sought to recover his claimed possessions, including some chairs and a French racing bicycle. Ms. Curley told Mr. Machiz she had sold the items as payment for some delinquent bills and that he was not entitled to take them. He moved to take the bicycle and she hung on to it. The couple argued and struggled over the bicycle. In the struggle Mr. Machiz grabbed Ms. Curley and pinned her left arm behind her back, twisting it and causing her to cry for help. Benjamin Dobrin, who lived with his brother in the next door apartment and shared a back porch with Ms. Curley, answered the call and found Mr. Machiz on top of Ms. Curley, forcing her face-first into a couch or futon, and twisting her arm behind her back. Mr. Dobrin immediately returned to his apartment and called "911" for help. He then went back to Ms. Curley's apartment. By then, she was up and was holding on to the bicycle and Mr. Machiz was dragging it with her. She was crying and yelling, "Help, you're hurting me. Stop!" Mr. Dobrin and his brother stopped the bicycle and Mr. Machiz left. Deputy Chris Williams arrived shortly thereafter and found Ms. Curley upset and hyperventilating. After interviewing the Dobrins, Ms. Curley, and then Mr. Machiz (at his apartment in the next building), Deputy Williams arrested Mr. Machiz. He admitted that he put Ms. Curley in a wristlock because she was struggling against his attempts to recover what he claimed was his. He was not protecting himself or another from physical harm. At the criminal trial on one count of a battery charge, on March 24, 2994, County Judge Cynthia A. Holloway heard the testimony of the Deputy, Mr. Dobrin, Ms. Curley, and Mr. Machiz, and admonished that Mr. Machiz had no right to "self-help" recovery of his property, to go to someone's apartment to remove property over objection, and to "pulverize anybody to get that property back". (Respondent's exhibit #1, p. 20) The court withheld adjudication of guilt, and placed Mr. Machiz on six months probation, with the provision for termination after four months on the condition that he perform 25 hours of community service, pay court costs and write a letter of apology to Ms. Curley.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the agency enter its Final Order finding that Ivan Drew Machiz violated section 493.6118(1)(j), F.S., and imposing a penalty of $500 fine. DONE AND RECOMMENDED this 13th day of March, 1995, in Tallahassee, Leon County, Florida. MARY CLARK 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 13th day of March, 1995. COPIES FURNISHED: Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250 Richard R. Whidden, Jr., Esquire Dept. of State/Division of Licensing The Capitol MS-4 Tallahassee, Florida 32399-0250 Ivan Drew Machiz 481 Hardendorf Avenue Atlanta, Georgia 30307
The Issue The issue is whether an administrative fine should be imposed on Respondent for unlawfully selling "spirituous beverages" on its licensed premises, as alleged in the Administrative Action served by Petitioner on March 17, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary action, Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division), seeks to impose penal sanctions on the license of Respondent, Polpo Mario, Inc., doing business as Polpo Mario Ristorante, on the ground that on February 24, 1999, an employee of the establishment served a Division special agent a shot of vodka and a shot glass containing a mixture of vodka and amaretto, none of which could be lawfully sold under Respondent's license. After this proceeding began, the restaurant was voluntarily closed by the owner. Respondent has denied the charge and requested a formal hearing to contest this allegation. In his request for a hearing, Respondent contended that the employee who served the drinks was actually a bus boy and had no authority to wait on customers; that the bus boy was pressured into making the sale; that the employee was "slightly retarded"; and that the chef occasionally used amaretto in preparing a special dessert. Except for the latter assertion, none of these defenses was established at the final hearing. Respondent is subject to the regulatory jurisdiction of the Division, having been issued license no. 68-01763, Series 2COP. That license allows Respondent to make sales of beer and wine for consumption on the premises of its restaurant located at 3131 Clark Road, Sarasota, Florida. The license does not, however, authorize the sale of "spirituous beverages," such as vodka, whiskey, and liquors, which contain more than six percent of alcohol by volume. Besides the above license, Respondent also holds licenses from the Division for three other restaurants, including a Series 4COP, SRX license, which authorizes the sale of all types of alcoholic beverages in conjunction with food sales. This type of license has an annual fee of $1,820.00. On November 6, 1998, a Division auditor, Eileen O'Shea (O'Shea), performed a routine audit of Respondent's corporate offices. Such audits are required to be performed at least once every three years. During the course of the audit, O'Shea examined various invoices from liquor dealers, including one which suggested that liquor may have been transferred from one of the restaurants holding a Series 4COP, SRX license to Polpo Mario Ristorante. O'Shea cautioned Respondent's president, Joseph Casadio (Casadio), and his wife, that under a Series 2COP license, they were not authorized to sell or have alcoholic beverages on the licensed premises. She also gave them a copy of the state statutes which contained this restriction, and O'Shea suggested that if any liquor was kept in the kitchen for food prepration purposes, that the bottle be marked with a "K." She further advised them that if they intended to use alcoholic beverages for preparing certain special dishes, they must obtain written approval from the Division to do so. There is, however, no statutory or rule authority for this requirement. Finally, she referred her findings to a Division special agent. Both Casadio and his wife acknowledged to O'Shea that they now understood the requirements and that no laws were being violated. Casadio also told her that he had once served customers an after dinner expresso with Sambuca (a liquor) without charge, but he no longer did so. Around 6:15 p.m. on February 24, 1999, and presumably in response to O'Shea's referral, Division special agent Samuel J. Funaro (Funaro) visited the licensed premises of Respondent for the purpose of attempting to purchase spirituous beverages. Funaro was greeted by Gerard Woel (Woel), an employee who seated Funaro at a table near the bar and handed him a menu. Besides Woel, there were two other female waitresses on duty that evening, including Kim Mitchell (Mitchell). None of these former employees, or any others, testified at the final hearing; however, their out-of-court statements have been treated as admissions by employees of a party and therefore an exception to the hearsay rule. Although there were several special entrees shown on a display board at the entrance to the restaurant, none were desserts. Funaro ordered an Eggplant Parmigiana as his entree and a bottle of Budweiser beer to drink. He also asked Woel for a whiskey chaser to go with his beer. Woel departed and returned from the kitchen a few minutes later with a shot glass containing a clear liquid. The parties have stipulated that the liquid was vodka. Woel remarked that the vodka came from a bottle kept by the chef in the kitchen. By serving that drink, Respondent exceeded the authority under its license. At a later point in his meal, Funaro ordered a second bottle of beer and another whiskey chaser. A few minutes later, Woel returned with a shot glass containing a brownish colored liquid and explained that it represented the last vodka in the chef's bottle along with a small amount of amaretto, which was the only other alcoholic beverage in the kitchen. Although Funaro did not retain a sample of the drink, based on his experience, he concluded that the shot glass did in fact contain vodka and amaretto. By serving the drink, Respondent exceeded the authority under its license. Shortly before 8:00 p.m., Funaro completed his meal. Woel was busy with other customers, so the bill was presented by Mitchell, another waitress on duty. The bill totaled $17.91, including tax, and besides the food charge, contained a charge for one beer (even though two had been ordered) and an item for $5.50 entitled "2-Open Food Lunch." As to the latter item, Mitchell explained that this was the way liquor sales were rung up on the cash register because the cash register did not have a specific key for liquor sales. On March 10, 1999, O'Shea and Funaro returned to Respondent's restaurant for the purpose of conducting an inspection of the premises. They found a bottle of Bols Amaretto in the kitchen used for preparing desserts. At that time, the chef on duty told them that after dinner drinks were served at one time but the practice was discontinued. He also stated that the previous chef had kept a bottle of vodka on the premises for preparing a pasta sauce. On March 16, 1999, Funaro met with Casadio and explained the violations he had noted during his previous visit and inspection. Casadio explained again that he had once given a complimentary after dinner drink to patrons but discontinued that practice after O'Shea had given him a verbal warning during her audit. He also explained that the amaretto found in the kitchen on the March 10 inspection was used to prepare desserts for patrons. In mitigation, Casadio established that he had been in the restaurant business for some 20 years, and there is no evidence that he has ever been charged with, or convicted of, violating any Division regulations or state law. He pointed out that he would never risk his license for the price of two drinks ($5.50), that he has always attempted to comply with all relevant requirements, and that he immediately fired Woel after learning of his actions. Given the extremely small amount of liquor involved, the minimal amounts kept on hand in the kitchen for cooking purposes, and the fact that Respondent was obviously not engaged in this conduct on a widespread, continuing basis, a reduction in the fine is appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order determining that Respondent has violated Section 562.12(1), Florida Statutes, as charged in the Administrative Action, and that an administrative fine in the amount of $750.00 be imposed. DONE AND ENTERED this 30th day of December, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1999. COPIES FURNISHED: Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Charles D. Peters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Joseph Casadio 3131 Clark Road, Suite 103 Sarasota, Florida 34231 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: At all times material to the charges, Ronald Wayne Diamond and Susan Joyce Saiia owned and operated a partnership trading as Susan's Las Olas Seafood Market at 1404 E. Las Olas Boulevard, Fort Lauderdale, Florida ("the licensed premises") On the licensed premises, they sold alcoholic beverages under the authority of alcoholic beverage license No. 16-3029, Series 2-APS. On January 17 or 18, 1982,and on January 19, 1982, Broward County Sheriff's Department Detective Fernandez entered the licensed premises in an undercover capacity and negotiated with Respondent Ronald Diamond for the sale and delivery of cocaine and cannabis. Respondent Susan Saiia was present and aware of these negotiations, although she did not actively participate in them. On one of these occasions, she warned Respondent Diamond to be careful, that she had seen someone in the back alley who looked like he was wearing a recording device. On January 20, 1982, Respondent Diamond was arrested on charges of unlawful trafficking in cocaine and possessing cannabis in violation of Sections 893.135(1)(b) and 893.13(1)(e), Florida Statutes. He was taken to the licensed premises where a search warrant was executed and two ounces of marijuana were found in an office file cabinet. (Petitioner's Exhibit No. 2) On May 6, 1982, the Circuit Court of the Seventeenth Judicial Circuit, adjudging Respondent Diamond guilty of these felonies, sentenced him to fifteen years in prison and fined him $250,000 for trafficking in cocaine. He was sentenced to an additional five years for the possession of cannabis. (Petitioner's Exhibit No. 3)
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondents' alcoholic beverage license No. 16-3029, Series 2-APS, be revoked for multiple violations of the Beverage Law. DONE and ORDERED this 12th day of July, 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 12th day of July, 1983. COPIES FURNISHED: John A. Hoggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Maurice Graham, Esquire Suite 2 2161 E. Commercial Blvd. Ft. Lauderdale, Florida 33308 Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all material times, Petitioner has held alcoholic beverage license #46-00726, series 4-COP. Richard A. Johnson is a director of Respondent and owns 98.75 percent of Class A common stock and 100 percent of Class B nonvoting stock. On October 27, 1994, Mr. Johnson was adjudged guilty of two violations of 18 U.S.C. 1542 in the U.S. District Court, Southern District of Florida. The court fined Mr. Johnson $5000 and placed him on 18 months' probation.
Recommendation It is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the administrative action against Respondent. ENTERED on July 13, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on July 13, 1995. COPIES FURNISHED: Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 John J. Harris, Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Miguel Oxamendi Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-1007 Harold F. X. Purnell Rutledge Ecenia P.O. Box 551 Tallahassee, FL 32302
Findings Of Fact At all times relevant to this case, Joel Albert Collinsworth held a valid Division of Alcoholic Beverages and Tobacco liquor license for the premises known as the Silver Bullet Bar and Lounge (hereinafter licensed premises), located at 12 North Ninth Street, DeFuniak Springs, Walton County, Florida. Petitioner's Exhibit 1. The license held by Respondent is number 76- 330, Series 2-COP and is limited to the sale of beer and wine on the licensed premises. Investigator Don Taylor is a police officer with the DeFuniak Springs, Florida, Police Department. On Thursday, December 10, 1987, Investigator Taylor entered the licensed premises and seized glass containers of liquid that were marked as Petitioner's Exhibits 2, 3, and 4. The containers were only partly full. Investigator Taylor, has on many occasions, observed, smelled and tasted distilled spirits (and testified that the liquid was whiskey and not wine or beer.) Respondent, Joel Albert Collinsworth was on the licensed premises at the time Exhibits 2, 3, and 4 were seized and was immediately placed under arrest by Investigator Taylor. The three (3) glass containers were taken to the Florida Department of Law Enforcement laboratory in Pensacola, Florida for testing and identification of the liquid contained in the three (3) bottles. The lab results shows that the liquid contained a high concentration of ethyl alcohol. Petitioner's Exhibit 5. Investigator Roy Harris, an 18 year veteran of the Division testified that the concentrations of alcohol listed in Exhibit 5 were sufficiently high that they could not be anything other than distilled spirits. The 2-COP license held by the Respondent allowed only consumption on the premises of beer and wine. The license does not permit possession, consumption or sale of distilled spirits on the licensed premises. The evidence showed that distilled spirits were being possessed and/or consumed on the premises owned and operated by Respondent under his beverage license. Such possession and consumption constitute a violation of Section 562.02, Florida Statutes. Petitioner requested that Respondent's license be revoked for the violation of the Liquor Law. No mitigating facts were presented by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is therefore RECOMMENDED: That Respondent is guilty of the offense set forth in the Notice to Show Cause issued on January 13, 1988, and that Petitioner should revoke the license of Joel Albert Collinsworth, d/b/a Silver Bullet Bar and Lounge. DONE and ENTERED this 22nd day of July, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1295 Petitioner's Proposed Findings of Fact contained in paragraph 1, 2 and 3 have been adopted in substance in so far as material. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 W. Paul Thompson, Esquire Post Office Drawer 608 DeFuniak Springs, Florida 32433 Lt. Tom Stout, District Supervisor Division of Alcoholic Beverages and Tobacco 160 Governmental Center Suite 401, 4th Floor Pensacola, Florida 32501 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
