Findings Of Fact At all times relevant and material to this proceeding, the Respondent, Willie Marion Ware (Licensee), held license number 74-00564, series 2-COP, authorizing him to sell alcoholic beverages on the premises doing business as Silver Shadow, located at 918 S. Adelle, Deland, Volusia County, Florida (the premises). Between the dates of July 1, 1989, and October 30, 1991, the Licensee's brother, Earl M. Ware (a/k/a Joe or Little Joe), was a convicted felon. The Licensee's brother, Earl M. Ware, was convicted less than five years ago for selling cocaine inside the licensed premises. The Licensee fully knew that his brother, Earl M. Ware, was and is a convicted felon who is prohibited from being employed as person in charge, bartender, or manager. Contrary to agreements made by Licensee in a previous case with this same charge and despite notice by Deputy Bowman, Licensee has continued to employ his brother, Earl M. Ware, as a person in charge, bartender or manager. At various times relevant to this proceeding, the Licensee's brother, Earl M. Ware, possessed keys to enter the premises and open the locked door to the premises and he opened the premises to the public without any supervision by Licensee or by any other employees. Earl M. Ware worked inside the premises when there were no other employees or the Licensee present inside the premises. In fact, Earl M. Ware was the only person in charge for extended periods of time, particularly on Sundays. The Licensee's brother, Earl M. Ware, worked behind the bar, asked clients what they wanted to drink, retrieved the alcoholic beverage orders, served those alcoholic beverages to clients, charged clients for those alcoholic beverages, and took money from clients for those alcoholic beverages. Between July 1, 1989, and October 30, 1991, the licensed premises were a continuing nuisance. Complaints regarding or involving the premises and its parking lot owned by Licensee were more than double those of the other two licensed premises located within 5 blocks of Licensee's premises. The complaints ranged from possession of drug paraphernalia and sale of narcotics, to armed robbery and attempted murders of law enforcement officers. Deputy Brown, in particular, testified that he purchased crack cocaine right at the front door of the premises. Deputy Brown also observed numerous narcotics transactions taking place inside the premises, while Licensee was inside the premises. Deputy Brown also made several purchases of cocaine in the parking lot of the Silver Shadow when the dealer advised that he was not holding the drugs and he then went inside the Silver Shadow to retrieve the drugs to be sold. Deputy Boltz removed two males under age 21 from the bathroom of the Silver Shadow, one of whom had a gun in his pocket. Deputy Bowman followed up on a complaint by a man who said he was beaten and robbed in the Silver Shadow. Deputy Bowman was advised by "Joe" that a fight occurred and that he had broken it up. The shoe missing from the complainant's foot was found by Bowman in the back corner of the bathroom. Deputy Bowman notified Licensee several times between the dates of July 1, 1989, and October 30, 1991, that the premises was fostering illegal activity, particularly narcotics activity. Every deputy who testified identified multiple occasions when he found containers of cocaine, bags with drug residual, and drug paraphernalia on the premises. They also each smelled marijuana and crack cocaine being smoked on the premises. Licensee was made aware of the incidents and told the law enforcement officers that he couldn't check or control the use of drugs on the premises. The Licensee never contacted the Sheriff's Office and never asked any of the deputy sheriff's specifically assigned to work the area to come inside his premises to enforce any criminal laws. Licensee did not contact the police when he knew that a criminal was hiding the gun used in an attempted murder of a police officer inside the premises. The Licensee denied ever speaking with Deputy Bowman regarding the continued illegal activity inside the premises. According to the Licensee, there is no illegal activity taking place inside the premises. This testimony is simply not worthy of belief. While the Licensee did attend community meetings and did place no trespassing signs in the adjoining parking lot, he had never asked any law enforcement officer to remove anyone from his premises. The Licensee acknowledged that he did not feel it was his duty to police his premises and identify persons who are engaging in illegal activity to the law enforcement authorities. According to the Licensee, that was the job of the police, and not his responsibility. In DABT Case No. AY74870121, Licensee's license was suspended and fined for multiple instances of the sale of crack cocaine on the premises by Earl M. Ware and for keeping an establishment used by persons using controlled substances and thereby deemed a public nuisance. The Final Order in that case was entered on May 25, 1989. In that proceeding, Licensee made various assurances regarding the exclusion of Earl M. Ware from the premises and the implementation of various devices meant to discourage and prevent any sale and use of drugs on the premises. Despite that Final Order and the terms thereof, the proof in this case shows that these same violations continued from July 1, 1989, to November 1, 1991, without cease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order and therein: Find that the Licensee, Willie Marion Ware, is guilty of the first count of employing a convicted felon. Find that the Licensee is guilty of the second count of maintaining a nuisance. Find that the previous conviction history of this Licensee for similar offenses is a sufficient aggravating factor to exceed the penalty guidelines Revoke license No. 74-00564, Series 2-COP, issued to Willie Marion Ware d/b/a Silver Shadow. DONE and ENTERED this 29th day of September, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3333 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, DABT 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-6(1-6); 7-10(6-9); 11-16(9-14); 17(18); and 18-22(21-24). COPIES FURNISHED: Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Monica Atkins White Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Reginald Moore Attorney at Law Post Office Box 1848 Daytona Beach, FL 32115-1848
The Issue This case arises out of a notice to show cause served upon the Respondent by the Division of Alcoholic Beverages and Tobacco alleging that Beverage License No. 27-92 should be suspended, revoked or otherwise disciplined for five separate counts involving drug sales on the licensed premises. As a basis for its proof, Petitioner relied upon a stipulation entered into with the Respondent and a Division of Alcoholic Beverages and Tobacco Case Report which was admitted without objection. Mr. Charles Andrews testified on behalf of himself as licensee. A copy of the notice to show cause was admitted as Joint Exhibit 1 and the Petitioner of foreign and had admitted without objection one exhibit, the case report of the Division of Alcoholic Beverages and Tobacco.
Findings Of Fact Charles D. Andrews, trading as Odom's Bar, is the licensee of Beverage License No. 27-92, License Series 4-COP. The licensed premises is located on Highway 29 in Century, Escambia County, Florida. The Petitioner and Respondent, having stipulated to the truth and accuracy of those facts alleged in the notice to show cause, and based upon that stipulation, the undersigned Hearing Officer finds those facts set forth in A through F of this paragraph: On May 24, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate the laws of the State of Florida by delivering a controlled substance, to wit: cannabis to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews, contrary to Florida Statute 893.13 within Florida Statute 561.29. On June 14, 1982, Johnny Andrews, the employee of Charles D Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On June 17, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On July 11, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On August 6, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Actent P. A. Blackman while on the licensed premises of Charles D. Andrews. A. The negotiations and discussions about the May 24, 1982, transaction occurred inside Odom's Bar and the delivery took place through the drive-in window located on the north side of the licensed premises. On June 14, 1982, Beverage Officer Blackman drove to the drive-in window and asked Johnny Andrews if he was holding any pot. Johnny Andrews stated he was holding a 35 cents bag. After a short discussion about possible purchase of a larger quantity, Officer Blackman purchased the bag of marijuana for $35.00. The plastic bag of marijuana was in a brown paper bag and was handed to Officer Blackman through the drive-in window. The delivery of the marijuana to Officer Blackman on June 17, 1982, also took place at the drive-in window. Johnny Andrews handed Blackman a brown paper bag containing a Miller and a plastic bag of marijuana. On July 11, 1982, Officer Blackman observed three patrons smoking a marijuana cigarette in Odom's Bar, and this activity was observed. by the barmaid on duty. No attempt was made to stop the activity. Officer Blackman was offered the marijuana cigarette and he pretended to smoke it. At this time, Johnny Andrews approached Officer Blackman and offered to 7 sell him some "acid" (LSD). Officer Blackman agreed and was instructed to drive around to the drive- in window. He did so and the delivery of the "acid" took place through the drive-in window. On August 5, 1982, Officer Blackman, after being in the licensed premises, drove up to the drive-in window where Johnny Andrews offered to sell him some "acid" (LSD) Officer Blackman agreed to purchase and agreed to return on August 6 to pick up the "acid". on august 6, 1982, Officer Blackman returned to the drive-in window where Andrews handed him a bag containing six hits of acid. At the time of the conversations and purchases on June 14, August 5, and August 6, 1982, Johnny Andrews was on duty and working at Odom's Bar. Mr. Charles Andrews has owned Odom's Bar for the past five years and worked for the two previous owners. He began working at Odom's Bar 20 years ago. The bar is managed by Respondent and his wife. Johnny Andrews, referred to in the stipulation above, is the son of Mr. and Mrs. Charles D. Andrews, and during the time period of the incidents set forth in Paragraph 1, was working as an employee at the bar. This was the first summer he had worked at the bar. He was working while he was home from college, and has not been allowed to work at the bar since August, 1982, when he was arrested. Generally, Johnny Andrews would relieve Mr. and Mrs. Andrews and they would leave the bar while he was working. The Respondent, Charles D. Andrews, had no knowledge of the drug transactions his son was involved in. Prior to the incidents in question, Odom's Bar was operated by Mr. and Mrs. Andrews with the help of four women whom they employed. Mr. Andrews had previously given instructions to his employees that they were not to allow drugs of any type to be used or sold on the premises. On the date of Johnny Andrews' arrest, agents for the Division of Alcoholic Beverages and Tobacco thoroughly searched the licensed premises and found no drugs. The clientele of Odom's Bar is primarily middle- aged persons. Prior to the incidents described in Paragraph 1 above, the licensee, Charles Andrews, had had no other violations of the law or drug related problems at the licensed premises. Once Mr. and Mrs. Andrews were notified of the charges and arrest warrant for their son, they cooperated with the police and also aided them in completing their arrest of Johnny Andrews. Although the Respondent testified that he had cautioned his employees against drugs on the premises, there was no evidence that he took any steps to ensure that the premises were being properly supervised and legally operated in his absence. There was no arrangement or plan whereby the licensee monitored what was occurring at the licensed premises in his absence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Florida statute 561.29, imposing a civil penalty of $1,000,and suspending Respondent's beverage license for a period of 60 days. DONE and ENTERED this 26th 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 28th day of April, 1983. COPIES FURNISHED: William A. Hatch, Esquire Mr. Howard N. Rasmussen Department of Business Director, Division of Alcoholic Regulation Beverages and Tobacco 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Mr. Charles D. Andrews Mr. Gary Rutledge Highway 29, Odom's Bar Secretary, Department of Business Century, Florida Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact On March 10, 1983 Marvin L. Lessne was issued a non- active broker license #0051792. His non-active license expired on September 30, 1984 and was not renewed. (Petitioner's Exhibit 1) On September 13, 1984, Marvin Lessne pled guilty to seven cases of Grand theft. (Petitioner's Exhibits 9 and 10). On January 7, 1985, he was sentenced by Judge Patricia W. Cocalis, Circuit Judge for the Seventeenth Judicial Circuit in and for Broward County. His total sentence was for two and a half years in prison, ten years of probation and full restitution to his victims. The total amount of money taken by Mr. Lessne from his victims was approximately $215,000.00. (Petitioner's Exhibit 10) By affidavit, Harold R. Huff, Director of the Division of Real Estate certified that a search of Division records failed to reflect that Marvin Lessne informed the Division of his conviction and subsequent incarceration.
Recommendation It is therefore, RECOMMENDED That a Final Order be entered finding that Respondent violated Section 475.25(f) Florida Statutes. (Count I, Administrative Complaint) and dismissing counts II and III of the Administrative Complaint. DONE AND RECOMMENDED this 28th day of July, 1986, at Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1986 COPIES FURNISHED: Sue Hartmann Division of Real Estate P.O. Box 1900 400 West Robinson Street Orlando, Florida 32802 Marvin L. Lessne 4341 Northwest 16th Street Apartment 101 Lauderhill, Florida 33313
Findings Of Fact At all times materal to this proceeding, the Respondent, Robert G. Hammond, was the holder of Beverage License No. 64-183, Series No. 2-APE. That license is issued to the licensed premises located at 1000 Reid Street, Palatka, Florida. On September 23, 1983, the Respondent, Robert G. Hammond entered a plea of guilty to the charge of fraud under Florida Statute 409.325(2). Based upon that guilty plea, the Respondent was sentenced to six months confinement in the Putnam County Jail and five years probation under certain specified conditions of probation. The offense to which the Respondent pleaded guilty and for which he was adjudicated guilty has a maximum sentence of five years imprisonment and/or a $5,000 fine and is a felony of the third degree under Florida law.
Recommendation Based upon the foregoing facts and conclusions of law, it is RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco enter a final order finding the Respondent guilty of the charge as set forth in the Notice to Show Cause and revoking Respondent's Beverage License No. 64-183. DONE AND ORDERED this 18th day of May 1984, in Tallahassee, Florida. MARVIN E. CHAVIS 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 18th day of May 1984. COPIES FURNISHED: Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Robert G. Hammond 1000 Reid Street Palatka, Florida 32077 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Findings regarding general matters The Respondent, Ernest Scott, d/b/a Sonny's Stardust Lounge and Restaurant, is the holder of a special alcoholic beverage license for premises located at 5181 N.W. 9th Avenue, Fort Lauderdale, Broward County, Florida. His current license number is 16-00368SRX. The type of license held by the Respondent is a special license authorized by Chapter 61-579, Laws of Florida. The Respondent purchased the licensed premises as a going business in 1983. At that time the business had a similar license, which license was transferred to the Respondent when the Respondent purchased the business. Findings regarding sales to minors On December 15, 1989, Respondent's employee, Lillian C. Pender, unlawfully sold an alcoholic beverage to a person under the age of twenty-one years. The beverage sold was a 12-ounce can of Budweiser beer. The minor to whom the sale was made was Jerry Wieczorek, age 16, date of birth April 11, 1973. 2/ On January 12, 1990, the Respondent, Ernest Scott, unlawfully sold an alcoholic beverage to a person under the age of twenty-one years. The beverage sold was a 12-ounce can of Budweiser beer. The minor to whom the sale was made was Seth Ross, age 18, date of birth August 22, 1971. At the time of the alcoholic beverage sale on January 12, 1990, Seth Ross was engaged as an under age "Investigative Aide." His primary function in that capacity was to attempt, under the watchful eyes of the Division's Investigators, to purchase alcoholic beverages from various premises licensed to sell alcoholic beverages. When his efforts were successful, the Division Investigators would arrest the person who sold the alcoholic beverage to the Investigative Aide and would issue a notice to the licensee. All Investigative Aides, including Seth Ross, were instructed not to make any false statements about their age, not to use any false identification documents, and to answer truthfully any questions regarding their age that might be asked by the person from whom they were attempting to buy alcoholic beverages. Shortly after 8:00 p.m. on the evening of January 12, 1990, Seth Roth entered the licensed premises and walked up to the bar. The Respondent, Ernest Scott, was on duty behind the bar. Ross asked the Respondent for a Budweiser and in response the Respondent asked Ross for identification. Ross handed the Respondent a valid Florida driver license that contained Ross' correct date of birth, namely August 22, 1971. The Respondent looked at the driver license and then said to Ross, "This makes you twenty." Ross replied, "No, it makes me eighteen." The Respondent said something to the effect that that was "good enough," and sold a Budweiser beer to Ross. Ross paid for the beer and then walked over to where two Division Investigators were sitting and delivered the beer to them. 3/ Findings regarding seating accommodations The furniture inventory at the time of Respondent's purchase of the licensed premises included the following: 49 four seat tables, 5 two seat tables, and 206 chairs. Except as specifically noted in the findings which follow, that original inventory of furniture has been continuously located on the licensed premises. Since the purchase of the licensed premises the Respondent has added some furniture to the licensed premises, including at least 5 small chairs and one large table. On December 18, 1989, Investigator R. W. Dees went to the licensed premises, contacted the Respondent, and conducted an inspection of the licensed premises. On the basis of the inspection, Investigator Dees concluded that the licensed premises were not being maintained in compliance with Chapter 61-579, Laws of Florida, and he issued a notice to that effect to the Respondent. 4/ The notice constituted a warning to the Respondent, as well as specific instructions regarding what the Respondent was required to do to be in compliance with the requirements of Chapter 61-579, Laws of Florida. At the time of the inspection on December 18, 1989, the Division's policy with regard to first offenses regarding the accommodations required by special acts like Chapter 61-578, Laws of Florida, was to issue a warning and to allow the licensee ten days within which to take the necessary corrective action. On the basis of the record in this case it cannot be said with certainty how many patrons could be served full course meals with the accommodations on the licensed premises at the time of the inspection on December 18, 1989. 5/ However, by the next day the Respondent had taken steps to remedy any deficiencies in that regard, and on December 19, 1989, there were sufficient tables and chairs on the licensed premises to serve at least two hundred patrons at tables. On January 12, 1990, Investigators Krauss and Dees conducted another inspection of the Respondent's licensed premises. At the time of the inspection on January 12, 1990, there were a sufficient number of tables and chairs on the licensed premises for service of at least two hundred patrons. 6/
Recommendation For all of the foregoing reasons, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order in this case to the following effect: Concluding that there has been no violation of Chapter 61-579, Laws of Florida, and dismissing the charges set forth in the second and fourth paragraphs of the Notice To Show Cause; Concluding that the Respondent did violate Section 562.11, Florida Statutes, by reason of the sale, by the Respondent's employee, of an alcoholic beverage to a minor, as charged in the first paragraph of the Notice To Show Cause; Concluding that the Respondent did violate Section 562.11, Florida Statutes, by reason of the sale, by the Respondent, of an alcoholic beverage to a minor, as charged in the third paragraph of the Notice To Show Cause; and Imposing a penalty consisting of a fine in the amount of five hundred dollars ($500.00) for the violation described in subparagraph (b) of this recommendation and an additional fine in the amount of five hundred dollars ($500.00) for the violation described in subparagraph (c) of this recommendation. RECOMMENDED at Tallahassee, Leon County, Florida, this 24th day of September, 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 24th day of September, 1990.
The Issue The issues are: (1) whether Petitioner is qualified for a pari-mutuel wagering occupational license as a greyhound owner; and, (2) whether Petitioner is entitled to waiver of the provisions in accordance to Chapter 550, Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence adduced at hearing, the following Findings of Fact are made: Petitioner, Stephen M. Morris, submitted an application for a pari-mutuel wagering occupational license as a greyhound owner on or about February 24, 2005. On his application for a pari-mutuel wagering occupational license, Petitioner accurately reported that he had been convicted of the following three felonies: (1) possession and sale of a controlled substance, (2) trafficking in controlled substance (cannabis) in excess of 100 pounds, and (3) dealing in stolen property. The foregoing felony convictions were in or about 1976, 1984, and 1993, respectively, and were the result of offenses that occurred in Florida. Due to Petitioner's felony convictions, as noted in paragraph 2 above, his application for a pari-mutuel wagering occupational license was subject to denial. Consequently, on February 24, 2005, in addition to his application for a pari-mutuel wagering occupational license, Petitioner also requested that a waiver be granted so that he could obtain the license. Petitioner's application and his request for waiver did not include any information which would establish his rehabilitation or demonstrate that he has good moral character. As part of the Division's review of Petitioner's request for waiver, on or about April 5, 2005, Mr. Toner interviewed Petitioner. During the interview with Mr. Toner, Petitioner had the opportunity to present information that established his rehabilitation and demonstrated his present good moral character, but he did not produce such information. In light of the information regarding Petitioner's felony convictions, which are undisputed and included in Petitioner's application, Petitioner does not meet the eligibility requirements for the license which he seeks. By Petitioner's own admission, he was convicted of the felony offenses noted in paragraph 2 above. The number of felony convictions and the times that the offenses were committed, show a pattern of serious criminal behavior and recidivism. Petitioner may be rehabilitated and may have present good moral character. However, Petitioner did not testify at the final hearing and presented no evidence that he has been rehabilitated and has present good moral character. Absent from the record is any testimony from Petitioner or from Petitioner's friends, relatives, business associates, employers, or church members regarding Petitioner's good conduct and reputation subsequent to the date of his last felony conviction. In absence of any evidence that Petitioner has been rehabilitated and has present good moral character, the Division has no basis to grant Petitioner a waiver.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order denying Petitioner, Stephen M. Morris', application for a pari-mutuel wagering occupational license and his request for waiver. DONE AND ENTERED this 30th day of December, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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, 2005. COPIES FURNISHED: Stefan Thomas Hoffer, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stephen M. Morris 162 Warren Avenue New Smyrna Beach, Florida 32168 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether or not Petitioner may be granted an alcoholic beverage license. BACKGROUND AND PROCEDURE Petitioner and Respondent agreed to the admission of their Prehearing Stipulation as Hearing Officer Exhibit A. Petitioner presented the oral testimony of Bob Young, James E. Willis, Mark Orr, Gary Ellwood, Bruce Hunter, and Andy Hoy and had admitted three exhibits. Petitioner also made an oral proffer that six additional witnesses would, if called, testify to the good moral character of James E. Willis. Respondent presented only the oral testimony of Barry Schoenfe1d. No transcript was provided, but the parties timely submitted their respective proposed findings of fact and conclusions of law. All proposed findings of fact have been ruled upon in the appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Petitioner is Rialto Food Service, Inc. d/b/a Hoy's Rialto Restaurant, whose president is James E. Willis. Respondent is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. On August 14, 1986, Petitioner filed an application for an alcoholic beverages license in connection with the purchase of Hoy's Rialto Restaurant. On September 29, 1980, James E. Willis was convicted of two counts of delivery of a controlled substance (methaqualone). On January 10, 1986, James E. Willis received a certificate of restoration of civil rights. James E. Willis currently enjoys a good reputation within the Ft. Pierce, Florida business community. Particularly persuasive of Willis' present good moral character is the entirely favorable factual and opinion evidence offered on his behalf by the prosecutor who presented the original case resulting in Willis' 1980 conviction. Several witnesses with opportunity to observe and good reason to know, also testified that Willis has taken an active and apparently effective stand against drug possession and/or drug use in Hoy's Rialto Restaurant. Subsequent to Petitioner's application for licensure, Sgt. Bob Young of the Division of Alcoholic Beverages and Tobacco investigated James E. Willis. Willis had made full disclosure on his application and thereafter concealed none of the facts found in findings of fact paragraphs 4-6, supra. After completing his investigation and despite Mr. Willis' conviction, Sgt. Young recommended approval of the Petitioner's application for licensure. Nonetheless, on February 6, 1987, Respondent denied Petitioner's license application on the grounds that Petitioner's corporate officer, James E. Willis, had been convicted of a felony within the past 15 years for a crime which directly related to the Alcoholic Beverages Law. Barry Schoenfeld, Chief of Licensing for the Division of Alcoholic Beverages and Tobacco, testified that it is Respondent's unwritten, uncodified "policy" to deny licensure when an applicant has a corporate officer with a felony conviction within 15 years from the date of application, which conviction involves one of the five crimes enumerated in Section 561.15, Florida Statutes. This agency "policy" has been in effect at least 5 years immediately prior to the formal hearing. Likewise, it is Respondent's position that a narcotics conviction, as in the instant case, is "directly related" to the license sought by Petitioner. Sgt. Young did not advise Mr. Willis of said policy, nor did he indicate that Petitioner's application would not be approved. Had this policy been in writing or otherwise available or made known to Petitioner prior to submitting its application, Petitioner would not have purchased Hoy's Rialto Restaurant. There are no other unwritten policies concerning automatic rejections for applications by persons convicted of any crime other than drug related crimes. There is no written agency policy or unwritten agency policy as to what crimes directly relate to Chapter 561, Florida Statutes, the Alcoholic Beverages Law. No other facts exist that would disqualify Petitioner's application for licensure.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages, enter a Final Order denying Petitioner's application for an alcoholic beverages license. DONE and RECOMMENDED this 17th day of December, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1677 The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF): Petitioner's PFOF: Covered in FOF 1 and 3. Covered in FOF 2. 3, 4, 5. Covered in FOF 7. Covered in FOF 8. Rejected as subordinate and unnecessary. Covered in FOF 10. Covered in FOF 9. To the extent it is not accepted, it is rejected as not supported by the evidence as a whole. Accepted but subordinate and unnecessary. See FOF 9-11. Covered in FOF 10. Covered in FOF 12. 13-14. Covered in FOF 6 except for those matters which are subordinate and unnecessary to a disposition of the issues in this cause. 15-16. Covered in FOF 11. Respondent' s PFOF: 1. Covered in FOF 1. 2. Covered in FOF 2. 3. Covered in FOF 3. 4. Covered in FOF 4. 5. Covered in FOF 5. 6. Covered in FOF 8. 7. Covered in FOF 6. 8. Covered in FOF 9. COPIES FURNISHED: Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph J. DeRoss, Jr., Esquire 133 South Second Street Fort Pierce, Florida 34950 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue At issue is the appropriate penalty to be imposed for respondent's violation of the provisions of Section 893.13, Florida Statutes.
Findings Of Fact The offense At all times pertinent hereto, respondent, Jabal, Inc. d/b/a Gus Food Store, held alcoholic beverage license number 23-1219, series 2-APS, for the premises located at 1490 N.W. 71st Street, Miami, Florida. Ghazi Farraj is the president and owner of respondent. On or about December 3, 1993, respondent, through its president and owner Ghazi Farraj, did unlawfully possess marijuana, specifically two marijuana cigarettes in a cigarette pack on his person while on the licensed premises. Mitigation Respondent submits the following information to be considered as "mitigating factors" in assessing the appropriate penalty to be imposed for its violation of the beverage laws: The Defendant Ghazi Farraj, entered a No Contest Plea on March 28th, 1994 before the Honorable Judge Leesfield to the charge of the possession of marijuana; to wit two marijuana cigarettes's [sic] and was found Quilty [sic] of said charge. The Respondent Ghazi Farraj, is a married man who has six children ranging in years as follows: eight thru nineteen who are living with the Respondent Ghazi Farraj, here in Miami, Dade County, Florida and he's the sole provider of his children and his wife. The Respondent Ghazi Farraj, here in [sic] has no prior Criminal Record prior to the incident described in Paragraph A. The Respondent Ghazi Farraj, fully recognizes the errors of his ways as stated in Paragraph A and he no longer will participate or get involved in any Criminal Act or Violation of the Department of Business and Professional Regulation, Division of Alcoholic Beverages And Tobacco Rules. The Respondent Ghazi Farraj, is a United States Citizen in good standing and if this Board suspends his beverage license it would not only put him out of business but will deprive the Respondent Ghazi Farraj, to fully support his family that was stated in Paragraph A.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of Count 4 as charged, and suspending respondent's license for a period of sixty (60) days. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of January 1995. WILLIAM J. KENDRICK 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 18th day of January 1995. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mr. Ghazi Farraj 1490 NW 71st Street Miami, Florida 33127 Mr. Ghazi Farraj 1490 NW 71st Street Miami, Florida 33147 Mr. Paul Pollack, Esquire 1704 Northwest 7th Street Miami, Florida 33125 John J. Harris, Acting Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue An administrative complaint dated June 22, 1989, alleges that Respondents violated Sections 475.25(1)(e), 475.25(1)(o), 475.42(1)(a) and 475.42(1)(e), F.S., by failing to pay an administrative fine and by operating as a broker without a valid current license. The issue in this proceeding is whether those violations occurred, and, if so, what discipline is appropriate.
Findings Of Fact Respondent, Jeffrey Robert Horne, is currently licensed as a real estate broker in the State of Florida, having been issued license number 0433763 in accordance with Chapter 475, F.S. Respondent, the People's Realty, Inc., is now and was at all times material hereto, a corporation registered as a real estate broker in the State of Florida having been issued license number 0253302 in accordance with Chapter 475, F.S. Jeffrey Robert Horne is licensed and operating as the qualifying broker for The People's Realty, Inc., at 1125 U.S. Highway One, Sebastian, Florida 32958. On December 6, 1988, the Florida Real Estate Commission issued its Final Order in Department of Professional Regulation, Division of Real Estate v. Jeffrey Robert Horne, Case #0156666, DOAH #88-2547, finding Respondent Horne guilty of violations of Section 475.25(1)(a), (b) and (k), F.S., reprimanding him, and assessing a fine of $500.00 for each of the three violations, for a total of $1,500.00. The order was filed, and was sent to counsel for Respondent, on December 13, 1988. The order does not, on its face, designate a deadline for payment of the fine. Jeffrey Horne sent a check dated 1/26/88 to the Department of Professional Regulation, (DPR) in the amount of $500.00, for one-third of his fine. The check was dishonored for insufficient funds and was returned to DPR. A form letter was sent to Jeffrey Horne notifying him of the nonpayment and assessing a $25.00 service charge. On or about April 7, 1989, Jeffrey Horne submitted a cashier's check to DPR in the amount of $525.00. Jeffrey Horne's April 7, 1989, submittal immediately followed his receipt of this form letter: (Note: some portions of letter are handwritten) Records Section 4-5-89 Jeffrey R. Horne 414 Quarry Lane Sebastian FL 32958 Dear I refer you to D. KELLER'S letter dated 2-24-89 , a copy of which is enclosed for your convenience, regarding your check(s) in the amount(s) of $500_ being dishonored by your bank, said check(s) being applicable to your request(s) for fine by Real Estate Commission. Since you have not complied with the above, this is to advise that I have cancelled your ( )salesman, (X)broker, (X)corporate license(s) No.(s) 0433763 & 0253302 effective 1-26-89 , and request the immediate return of said license(s) to this office. Accordingly, if you are operating as a ( )salesman, (X)broker, and/or (X)corporation, you are doing so without being the holder of valid license(s) and in violation of Chapter 475, of the Florida Statutes. For your information, the above license(s) cannot be reacti- vated unless the required amounts of $500 and $25 service charge are submitted by certified check or money order and license applied for on proper form to the undersigned. If within 10 days from the date of this letter, you still have not complied, this matter will be turned over to our Investigation Section. Sincerely, P.S. Both licenses also expired 3-31-89. No renewal shows as processed DJP: Enclosure D. Janet Puckey, Records Administrative Assistant II cc: DPR-Tallahassee - Finance & Accounting People's Realty Inc., 9516 Fellsmere Hwy, Sebastian 329 (Petitioner's exhibit #10) Nothing in the record of this proceeding explains how an effective date of 1/26/89 was established, or by what authority an Administrative Assistant II could cancel a license. In anticipation of license expiration, Jeffrey Horne had sent two renewal fee checks, dated March 27, 1989 and March 28, 1989, in the amount of $57.00 each, to DPR. These checks were dishonored for insufficient funds. Form letters dated April 26, 1989, were sent to Jeffrey Horne and to People's Realty, Inc., informing them that the checks were dishonored and requesting payment of the full amount, plus $10.00 service charge for each check. The letters also included this warning: * * * If you do not comply with the above, your license will be cancelled fifteen days from the receipt of this notice and immediate return of your license will be requested. Accordingly, any real estate business conducted subsequent to the expiration of your old license will be in violation of Chapter 475, Florida Statute. Your license cannot be reactivated unless the dishonored check is paid in full and a $10.00 service charge is paid. * * * (Petitioner's Exhibit #5) Jeffrey Horne received the notices approximately April 28, 1989, and on May 22, 1989, he sent a money order to DPR for $132.00, intending to cover the two $57.00 renewals and $10.00 service charges. He was later informed that he was $2.00 short, and he eventually sent that amount. Larry Whitten was an Investigative Specialist II, assigned to the Division of Real Estate Palm Beach office, between January 1988 and September 1989. In response to a memo from Attorney Steven Johnson, Investigator Whitten contacted Jeffrey Horne to determine whether he was currently operating. Investigator Whitten cannot recall the exact dates of his one office and two telephone contacts, but they were sometime between May 24, 1989 (the date of the memo), and June 16, 1989. The telephone was answered, "People's Realty", and the office was open and staffed by Jeffrey Horne and another person. On June 12, 1990, Darlene F. Keller, Director of the DPR Division of Real Estate, executed a "Certification of Absence of Public Record", stating: I HEREBY CERTIFY that a search of the records of the Florida Real Estate Commission has revealed that as of June 19, 1989, $1,000.00 of the fine owed by Jeffrey Robert Horne had not been received, nor had the renewal fee of $67.00 been paid. The licenses of both Respondents were invalid from April 1, 1989 to June 14, 1989. WITNESS my hand and seal this 12th day of June, 1990. (Petitioner's Exhibit #6) Paragraph 10 of the Administrative Complaint which initiated this proceeding states: "On or before June 14, 1989, Respondent made good the renewal fee checks previously returned NSF." This statement is consistent with Respondents' exhibit #1, which includes the DPR letters acknowledging payments. However, this conflicts with the statement in paragraph 10, above, that as of June 19, 1989, the renewal fee of $67.00 had not been paid. The same claim is also repeated in paragraph 11 of the Administrative Complaint. The complaint alleges that both Respondents are licensed, and that from January 13, 1989 to March 31, 1989, Respondent Horne was licensed and operating as the qualifying broker for the People's Realty, Inc., but that from April 1, 1989 to June 14, 1989, they were operating without valid and current licenses. (Paragraphs #1-4, Administrative Complaint dated June 22, 1989.) It is apparent from the above that it is Petitioner's position that Respondents' licenses expired on March 31, 1989, for nonpayment of a renewal fee, and were reinstated on June 14, 1989, when (according to one version of DPR's account) the renewal fees were properly paid. The retroactive "cancellation" of Jeffrey Horne's license by D. Janet Puckey is either given no effect, or his license was retroactively reinstated when he sent the $525.00. Jeffrey Horne has been licensed as a real estate broker since 1987. Prior to that he was licensed in Florida as a real estate salesman. The incident which led to his discipline in 1988 occurred when he was a salesman and is his only infraction of record. At the time that his checks were dishonored in 1989, he was in financial straits, having incurred legal expenses due to the disciplinary proceedings, and having recently started over with his own business. He does not consider his financial situation a threat to his clients as he refuses to accept or hold funds in escrow. Rather, he has an arrangement with a title company to maintain the escrow account. When the DPR checks were written, he thought that they would be covered by commission checks he had deposited. When he was notified that the checks were bad, he provided restitution as soon as he could. The payment of $132.00 rather than $134.00, to cover the two $57.00 renewal fees and $20.00 in service charges was a mathematical error. Jeffrey Horne concedes that he continued to operate as a broker and to operate the People's Realty, without pause, during the relevant period. He denies that he was given a deadline for payment of his fine, and he was attempting to pay it in installments. Until he was contacted by the investigator, he did not believe that his license had been revoked and would have stopped operating if he had been clearly instructed. He also attempted to pay his renewal fees and, until he was informed otherwise by DPR, he believed the fees were paid. The notice, described in paragraph 7, above, is ambiguous, but appears to provide a 15-day grace period when a check has been dishonored. Horne received the notices on April 28, 1989, but did not send the money order until May 22, 1989. He is guilty, at most, of knowingly practicing with an expired license for nine days (May 13th until May 22nd). At the time of hearing, the entire $1,500.00 administrative fine had been paid, as had the renewal fees.
Recommendation Based on the foregoing, it is hereby, recommended that a Final Order be entered finding that Respondents violated Section 475.42(1)(a), F.S., reprimanding them, and assessing a fine of $100.00, to be paid in full 30 days from the date of the Final Order. RECOMMENDED this 18th day of July, 1990, 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 18th day of July, 1990. COPIES FURNISHED: Steven W. Johnson, Esquire DPR-Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Gregory J. Gore, P.A. P.O. Box 780384 Sebastian, FL 32978-0384 Kenneth E. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Darlene F. Keller, Division Director DPR-Division of Real Estate P.O. Box 1900 Orlando, FL 32801
