The Issue Should Respondent’s license to sell alcoholic beverages be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent El-Bireh, Inc., held license number 63-02202, ZAPS, authorizing Respondent to sell alcoholic beverages on the premises of Sam’s Big Apple Number 2, located at 110 Manor Drive, Bartow, Polk County, Florida. Zahieh Awad Awadallah is the sole corporate officer and sole shareholder of El-Bireh, Inc. On January 18, 1997, as a result of a complaint from the City of Bartow, the Department initiated an investigation of Respondent’s premises located at 110 Manor Drive, Bartow, Polk County, Florida, for the sale of alcoholic beverages to persons under 21 years of age. On January 18, 1997, Special Agent Greenlee, along with another Department Special Agent, and Gabriel Shuler, went to Respondent’s licensed premises to investigate the sale of alcoholic beverages to persons under 21 years of age. Gabriel Shuler was born on January 7, 1978, and on January 18, 1997, was 19 years of age. At times pertinent to this proceeding, Shuler was 6 feet 6 inches tall and weighed 270 pounds. Shuler had a valid State of Florida driver’s license in his possession on January 18, 1997. The driver’s license carried Shuler’s correct age, height, and weight. The Department’s special agents present at Respondent’s licensed premises on January 18, 1997, instructed Shuler to enter the premises and attempt to purchase an alcoholic beverage. Shuler was also instructed to produce his driver’s license for identification, if requested, and not to attempt to deceive the clerk as to his correct age. Shuler entered the licensed premises and selected a 16-ounce can of “Budweiser” beer from the cooler inside the premises. Shuler purchased this 16 ounce can of “Budweiser” beer from a person later identified as Zahieh Awad Awadallah, the sole shareholder of Respondent. Sahieh Awad Awadallah did not ask Shuler for any identification or ask Shuler if he was 21 years of age. The 16 ounce of “Budweiser” beer purchased by Shuler from Respondent was in a container labeled “beer” and contained “beer,” an alcoholic beverage. The Respondent has not denied that Shuler purchased the beer. Special Agent Greenlee entered the licensed premises after Shuler and witnessed the sale of the beer to Shuler by Respondent. After purchasing this beer, Shuler exited the premises. Upon Shuler’s exiting the premises, the Department’s Special Agent took custody of the beer. Respondent was subsequently advised of the violations by Special Agent Greenlee and was issued a Notice to Appear by Special Agent Greenlee. There is sufficient evidence to show that Sahieh Awad Awadallah, the sole shareholder of El-Bireh, Inc., d/b/a Sam’s Big Apple Number 2, sold a 16-ounce can of “Budweiser” beer, an alcoholic beverage, to Gabriel Shuler, a person under the age of 21 years, without asking Shuler his age or requesting Shuler to produce identification showing his age to be 21 years. There are no mitigating circumstances which would support a reduction of the standard penalty imposed for the violation alleged in the Administrative Action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a final order be entered finding Respondent guilty of violating Section 562.11(1)(a), Florida Statutes, and for this violation that the Department issue an administrative fine in the amount of $1,000 against Respondent and that Respondent’s alcoholic beverage license number 63-02202, ZAPS, be suspended for a period of 7 days. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997. COPIES FURNISHED: James D. Martin, Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Brandon Rafool, Esquire Post Office Box 7286 Winter Haven, Florida 33883 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondents, Thomas Olhausen and Henry Stripling, d/b/a Trackside Lounge, hold Beverage License No. 23-1647, Series No. 4-COP, which was issued for the current year. On or about June 5, 1983, the Respondent Thomas Olhausen sold a controlled substance, namely cocaine, to Beverage Officer Terminello while he was on the licensed premises known as Trackside Lounge in Dade County, Florida. On or about June 8, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Dodson while he was on the Trackside Lounge premises. On or about June 12, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Terminello while he was on the premises of Trackside Lounge. The Respondent Henry Stripling did not go onto the Trackside Lounge between the dates of March 10 and June 10, 1983, pursuant to a restraining order issued on March 10, 1983, by the Dade County Circuit Court. This March 10, 1983, court order appointed two receivers to supervise the operation of the business known as Trackside Lounge. Pursuant to this authority the receivers employed Thomas Olhausen to operate and manage the business. Thus, Thomas Olhausen was not subject to the restraining order which barred Henry Stripling from entry onto the Trackside Lounge premises. The Respondent Henry Stripling had no connection with the sale of cocaine by the Respondent Thomas Olhausen to the Beverage Officers on June 5, 8 and 12, 1983. The court order of March 10, 1983, did not attempt to effect a judicial transfer of the beverage license held by the Respondents. The court appointed receivers did not file an application for a beverage license pursuant to Section 561.17, Florida Statutes, and there is no evidence that the receivers attempted to transfer the beverage license held - by the Respondents pursuant to Section S61.32(1)(a) and (b), Florida Statutes, or Section 7A-2.06(6), Florida Adminstrative Code. The court appointed receivers did not file a certified copy of the order appointing them as receivers with the Division of Alcoholic Beverages and Tobacco pursuant to Section 7A-2.06(6), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the alcoholic beverage license held by the Respondents, Thomas Olhausen and Henry Stripling, being number 23-1647, Series No. 4-COP, be revoked. THIS RECOMMENDED ORDER entered this 26th day of July, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 26th day of July, 1983. COPIES FURNISHED: William A. Hatch, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Mark A. Jacobs, Esquire 18204 Biscayne Boulevard North Miami Beach, Florida 33160 Richard F. Hayes, Esquire Suite 20 4601 Ponce de Leon Boulevard Coral Gables, Florida 33146 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue By notice to show cause, petitioner charged that respondent, individually or through the acts of its agent/employee, violated the provisions of Section 562.11(1)(a), Florida Statutes, by selling an alcoholic beverage on its licensed premises to a person under the age of 21. Respondent requested a formal hearing on the charges, and the matter was referred to the Division of Administrative Hearings. At the hearing, petitioner called three witnesses and offered three exhibits which were admitted into evidence. Respondent testified on his own behalf and offered no exhibits. A transcript of the hearing was not ordered, and the parties were granted leave until August 21, 1989 to file proposed findings of fact. Petitioner timely filed proposed findings of fact and conclusions of law. A ruling on each of petitioner's proposed findings of fact has been made and is reflected in the Appendix to this recommended order. On August 24, 1989, respondent filed a letter which is here deemed to be his proposed findings of fact; however, his filing was untimely.
Findings Of Fact At all times material hereto, respondent, Coast Line Petroleum, Inc. d/b/a Toms Texaco, held an alcoholic beverage license number 60-04813, series 2- APS for the premises known as Toms Texaco in Lantana, Florida at 401 N. Dixie Highway. Mr. Thomas Przybylski is the President of respondent and appeared on behalf of the licensee. On or around April 4, 1989, petitioner's investigator conducted an investigation of respondent's licensed premises to determine if respondent was selling alcoholic beverages to underaged persons. The investigation was prompted by complaints received by petitioner from the Lantana Police Department. Petitioner's practice in making such investigations was to employ an underaged person and send the underaged person onto the licensed premises to purchase an alcoholic beverage. The underaged person was instructed not to carry any form of identification and to respond truthfully if asked his age or for identification. Julio A. More was employed by petitioner as an Investigative Aide. On April 4, 1989, following petitioner's instructions, Mr. More, who was eighteen at the time and appeared to be no older than his age, entered the licensed premises at issue. It was a busy afternoon at Toms Texaco. Mr. More picked a beer out of the inventory and attempted to purchase it from Mr. Przybylski, who was working that afternoon. Mr. Przybylski asked Mr. More if he had any identification to which Mr. More replied that he had none. Mr. Przybylski then sold Mr. More the beer. Petitioner's investigator witnessed the sale and confiscated the tendered beer. Mr. Przybylski as an employee and officer of respondent sold an alcoholic beverage to an individual who was eighteen at the time of the sale. Accordingly, respondent is guilty of selling an alcoholic beverage to a person under 21 years of age. The proof demonstrated that petitioner has promulgated disciplinary guidelines for offenses similar to the one at issue; and that the appropriate penalty in this case would be the imposition of a fine of $1,000 and twenty-day suspension of the license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on respondent an administrative fine of $1,000 and suspending respondent's license for a period of twenty days. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of September 1989. JANE C. HAYMAN 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 7th day of September 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO.89-3006 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraphs 3 and 4. Addressed in paragraph 4. Irrelevant. Adopted in paragraph 5. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Thomas John Przybylski, Jr. Coast Line Petroleum, Inc. 10670 Cypress Bend Drive Boca Raton, Florida 33498 Lt. Debbie Pfitzenmaier Elisha Newton Dimick Building 111 Georgia Avenue, Room 207 West Palm Beach, Florida 33401 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey Director The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Respondent is the holder of Beverage License No. 26-751 permitting the sale of alcoholic beverages from her store at 1155 Jessie Street, Jacksonville, Florida. This business is a convenience store known as Agel Grocery. Respondent's husband has been co-owner of this business since the outset, and participates in its operation and management. When the Morenes applied for an alcoholic beverage license in June, 1980, they believed Frank Morene was ineligible and intentionally omitted his name from the application.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is That Respondent be found guilty of filing an incorrect application in violation of Subsection 561.17(1), Florida Statutes (1979). It is further RECOMMENDED: That Respondent's Alcoholic Beverage License No. 26-751 be suspended until Respondent files and secures approval of a correct application or demonstrates that any direct or indirect interest of Frank Morene in the licensed business has been removed. DONE and ENTERED this 7th of August, 1981, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mrs. Saundra Morene c/o Agel Grocery 1155 Jessie Street Jacksonville, Florida 32206
Findings Of Fact Based on the exhibits introduced into evidence and the testimony of the witnesses at the hearing, I make the following findings of fact: On January 3, 1984, an application for transfer of alcoholic beverage license number 16-262, in the name of I. T. Chips, Inc., to JNJ, Inc., d/b/a Apples, was delivered to the Lauderhill District Office of the Division of Alcoholic Beverages and Tobacco by Michael Rapp. The application and personal questionnaire of Michael Rapp, Vice President of JNJ, Inc., revealed that he had been convicted of a felony within the last 15 years. Upon being informed by Sgt. Pat Roberts that the application for transfer would be denied because Rapp's conviction was disqualifying, Rapp withdrew the application. On January 6, 1984, Michael Rapp submitted an amended application for transfer of this same alcoholic beverage license to JNJ, Inc., d/b/a Apples. The amended application listed Janet Swift, a/k/a Janet Swift Rapp, as sole corporate officer and shareholder. An agreement for purchase and sale submitted with the application revealed that JNJ, Inc., was purchasing from MAM Restaurant Corporation all assets located at 1201 East Hallandale Beach Boulevard, Hallandale, Florida, the address of the licensee, I. T. Chips, Inc., for a total price of $418,600.00. The purchase and sale agreement acknowledged that a down payment in the amount of $18,600.00 had been made by JNJ, Inc., and provided for the remaining debt of $400,000.00 to be paid in monthly installments of $4,800.00 and be secured by a mortgage. The application stated that Frederick Cusolito and Janet Swift would be the sole financial investors in the business and that the corporation's banking business would be conducted at the Bank of Hallandale & Trust Company. Janet Swift swore that the information provided on the application was true. Whatever, Inc., is a corporation with the same business address as JNJ, Inc. Michael Rapp is the President and Secretary of Whatever, Inc. Whatever, Inc., had a bank account at the Bank of Hallandale & Trust Company and Michael Rapp was an authorized signer on the account. During January of 1984, Whatever, Inc., was writing checks to pay some of the operating expenses of the business located at 1201 East Hallandale Beach Boulevard. JNJ, Inc., with an address of 1201 East Hallandale Beach Boulevard, Hallandale, Florida, had a bank account at Flagship Bank of Miami. The bank records show Janet Swift as president of the corporation and Michael Rapp as Vice President. During December of 1983, the following deposits were made to the JNJ, Inc., account at the Flagship Bank of Miami: $92,500.00 from Martin I. Roth at L & M Consultants, $27,000.00 from David J. S. Gottfried, $39,000.00 from the Hanseatic Development Corporation (described as a "loan"), and $87,000.00 from an unidentified account at the Bank of Ireland in New York. None of the people or entities from whom these deposits were received were listed as financial investors of JNJ, Inc., on the sworn application filed by Janet Swift for the transfer to JNJ, Inc. None of them were listed as financial investors of I. T. Chips, Inc., on the sworn application filed by Janet Swift for change of business name and change of officers of I. T. Chips, Inc. Martin I. Roth, the authorized signer on the bank account of L & M Consultants who actually signed the L & M Consultants checks which were deposited in the JNJ, Inc., account, was convicted of a felony in 1981. On January 19, 1984, JNJ, Inc., borrowed $75,000.00 from Schmidt Industries, Inc., a Missouri corporation. To secure that loan, JNJ, Inc., entered into a Security Agreement (chattel mortgage) pursuant to which JNJ, Inc., pledged liquor license series number 4 COP, permit number 16-262, as security for the repayment of the $75,000.00 loan. Liquor license series number 4 COP, permit number 16-262 is the liquor license issued to I. T. Chips, Inc. 1/ The facts described in paragraphs 3, 4, 5, and 6, above, came to the attention of DABT Investigator Michael D'Ambrosia during the course of his investigation of the January 6, 1984, application to transfer the I. T. Chips, Inc., license to JNJ, Inc. D'Ambrosia met with representatives of JNJ, Inc., discussed with them the information he had acquired during the course of his investigations, and requested that he be provided with certain additional information. Thereafter, District Supervisor Richard Boyd recommended disapproval of the January 6, 1984, application on April 3, 1984. On April 4, 1984, before any final agency action was taken on the application, JNJ, Inc., withdrew the application to transfer the I. T. Chips, Inc., license to JNJ, Inc. On April 4, 1984, Janet Swift signed an application for a change of business name and a change of corporate officers of the licensee corporation, I. Chips, Inc. 2/ This application was filed on April 11, 1984, with the Division of Alcoholic Beverages and Tobacco. Janet Swift was again listed as sole corporate officer and shareholder. The sworn application filed in April of 1984 contained the following financial information: JNJ, Inc., which held a temporary license, which has since been withdrawn, executed an Agreement for Purchase and Sale with MAM Restaurant Corporation on 12/8/83. JNJ, Inc., the stock of which is owned exclusively by Janet Swift, has abandoned the premises, since Janet Swift has purchased all of the stock in I. T. Chips, Inc., for which she paid no consideration other than assuming the existing debts. I. T. Chips, Inc. has agreed to assume the mortgage referred to in the Agreement for Purchase and Sale; to wit, the initial principal sum of $400,000.00, payable at the rate of $4,800.00 per month, which will be paid from the proceeds of the operation of the business herein. Janet Swift is the sole and exclusive owner of T. Chips, Inc., and no other person, firm or entity has any interest, direct or indirect, in the said business. The application which was signed on April 4, 1984, and filed on April 11, 1984, did not contain any information about the financing of the business other than what is quoted immediately above, and did not list any person as having an interest in the business other than Janet Swift. On April 4, 1984, Janet Swift swore to the truth of the following statement which is printed on the application form: I swear or affirm under penalty of perjury as provided for in Florida Statutes 837.06 and 559.791, that the foregoing information is true to the best of my knowledge, and that no other person, persons, firm or corporation, except as herein indicated, has an interest in the alcoholic beverage license or cigarette permit for which these statements are made. On April 4, 1984, Schmidt Industries, Inc., had an interest in the alcoholic beverage license which was the subject of the application signed by Janet Swift, because that same license was pledged as collateral for a $75,000.00 loan, and pursuant to a chattel mortgage, Schmidt Industries, Inc., had a security interest in that license to guarantee the payment of the loan. 3/ On April 4, 1984, JNJ, Inc., was a financial investor in the I. T. Chips, Inc., license or business because I. T. Chips, Inc., received the benefit of the $18,500.00 down payment that JNJ, Inc., made to MAM Restaurant Corporation and I. T. Chips, Inc., received the benefit of the $75,000.00 that JNJ, Inc., borrowed from Schmidt Industries, Inc. On April 4, 1984, the persons and entities described in paragraph 4, above, who wrote checks deposited in the JNJ, Inc., bank account were indirect financial investors in the I. T. Chips, Inc., license or business because I. T. Chips, Inc., was either the successor to or the alter ego of JNJ, Inc. On April 4, 1984, Frederick Consolito was an indirect financial investor in the I. T. Chips, Inc., license or business because I. T. Chips, Inc., was either the successor to or the alter ego of JNJ, Inc. 4/ The foregoing findings of fact incorporate the substance of the vast majority of the findings of fact proposed by the parties. In those few instances where I have made findings contrary to the proposed findings, it is because the persuasive competent substantial evidence was to use contrary of the proposed findings. In those few instances where I have omitted the substance of findings proposed by a party, it is because the proposed finding was irrelevant, immaterial, cumulative, or not supported by persuasive competent substantial evidence.
Recommendation Based upon all of the foregoing it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order denying the application for change of business name and change of corporate officers of I. T. Chips, Inc. DONE AND ORDERED this 1st day of April, 1985, in Tallahassee, Florida. MICHAEL M. PARRISH 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 1st day of March, 1985.
Findings Of Fact Respondent, C.S.G., Inc., d/b/a The Arena, holds alcoholic beverage license no. 62-427, Series 4-COP. The licensed premises is located at 4469 49th Street North, St. Petersburg, Florida. During the period relevant to this proceeding, Sam I. Ferrara, Jr. was the sole officer and stockholder of C.S.G, Inc. On November 19, 1980, prior to Ferrara's purchase of the C.S.G., Inc., Eugene O'Steen submitted a license application for transfer of alcoholic beverage license no. 62-427, from Edward Mickler, Jr. to C.S.G., Inc., showing O'Steen as the sole corporate officer and stockholder of C.S.G., Inc., and Ferrara as the manager. O'Steen's license application was not accepted as the application end accompanying documentation were incomplete. The initial application included a lease for the licensed premises signed by O'Steen over the whited-out signature of Sam I. Ferrara, Jr., dated October 9, 1980. O'Steen had negotiated the purchase of beverage license no. 62-427 from Edward Mickler, Jr., for $78,500. O'Steen intended to fund the purchase with a $2,000 down payment from personal assets and a $76,500 loan from the Central Bank of Tampa. However, O'Steen voluntarily withdrew his application on November 26, 1980, due to the possible filing of criminal charges which could have resulted in denial of the application. On the same day that O'Steen withdrew his application, Ferrara initiated a new application for transfer of alcoholic beverage license no. 62- 427. Ferrara's application was also in the name of C.S.G., Inc. showing Ferrara as the sole corporate officer and stockholder of this corporation. On December 2, 1980, Ferrara advised Petitioner's Beverage Officer Maggio that he, Ferrara, had negotiated the same contract to purchase beverage license no. 62-427, as had O'Steen. Said beverage license was to he purchased by Ferrara (C.S.G., Inc.) for a total of $78,500. A deposit of $2,000 had been made and a balance of $76,500 was due at closing on purchase of this license. Ferrara further advised that he (C.S.G., Inc.) was obtaining an $80,000 loan from the Central Dank of Tampa to finance the purchase of the beverage license and that he (C.S.G., Inc.) was obtaining a $20,000 loan from Attorney Matthews to reimburse O'Steen for remodeling expenses incurred on the licensed premises. On December 3, 1980, Ferrara submitted a personal questionnaire (PX-10) listing finances concerning the license application as follows: Central Bank of Tampa $80,000 Eugene O'Steen - [Crossed through] $20,000 John Matthews - $20,000 On December 3, 1980, Ferrara provided Beverage Officer Maggie with a completed license application (PX-9) together with a letter of commitment for a loan to C.S.G., Inc. in the amount of $80,000 signed by Orlando Garcia, President of the Central Bank of Tampa. This letter was dated December 3, 1980 (PX-1) On December 3, 1980, Ferrara was questioned by Beverage Officer Maggie as to the completeness and accuracy of his license application (PX-9) and his personal questionnaire (PX-10) Ferrara advised Maggie on that date that both referenced documents were complete and accurate. Additionally, on the same date, Maggie reviewed with Ferrara his answers to all questions and both of the referenced documents. Ferrara's answers contained in the referenced documents were sworn and made under oath. Section 7 of Ferrara's license application (PX-9) reads: List below the names of all those connected, directly or indirectly, in the business for which the license is sought: (This includes partner(s), spouse, director(s), stockholder(s), chief executive, limited and general partner(s), corporation(s), or any form of entity which is connected with the business. Name office (if corporation) or other title if any. Nature of interest including stock percentage. In response to this question, on his license application (PX-9), Ferrara identified himself as President, Secretary, Treasurer and 100 percent stockholder. No other person or entity was listed as interested directly or indirectly. Subsequent to December 3, 1980, Beverage Officer Maggio transmitted Ferrara's license application (Px-9) and related documentation to Petitioner's Tallahassee office with a recommendation that the application be approved. Thereafter, on December 5, 1980, C.S.G., Inc. was issued a temporary beverage license. The permanent beverage license, number 62-427, Series 4-COP, was issued on January 7, 1981. On December 1, 1980, prior to the letter of commitment from the Central Bank of Tampa (PX-1), and Ferrara's submission of his license application (PX-9) and personal questionnaire (PX-10), and also prior to Ferrara's oral statements to Beverage Officer Maggio, the Central Bank of Tampa issued a loan closing statement (PX-8) concerning C.S.G., Inc.'s (Ferrara) $80,000 loan. This loan closing statement (PX-8) reflected an $80,000 loan to C.S.G., Inc. and P & O, Inc. jointly, not solely to C.S.G., Inc. as indicated in the loan commitment letter (PX-1), Ferrara's oral statement, and Ferrara's license application (PX-9). Said loan closing statement reflected collateral for this loan which included beverage license no. 62-427, Series 4-COP (C.S.G., Inc. license) and an alcoholic beverage license held by P & O, Inc. On December 5, 1980, a bank note, number 55-25549 (PX-6) was executed in the amount of $80,000 with C.S.G., Inc. and P & O, Inc. as co-makers. This note was signed by Ferrara on behalf of C.S.G., Inc., and by Charles and Olga Pitisci on behalf of P & O, Inc. Said note (PX-6) corresponds to the loan closing statement dated December 1,1980 (PX-8). Pursuant and subsequent to the execution of the bank note discussed above (PX-6), a cashier's check, number 312768 (Px-3), was drawn on the Central Bank of Tampa and issued December 5, 1980 to C.S.G., Inc. and P & O, Inc. jointly, in the amount of $70,278.25. This cashier's check represented the proceeds from the loan generated on bank note 55-25549 (PX-6). These proceeds were deposited in the Central Bank of Tampa to the account of C.S.G., Inc. On December 5, 1980, a separate cashier's check (PX-2) number 312502 was issued by the Central Bank of Tampa payable to Edward Mickler, Jr in the amount of 576,500. Funds for this check came from C.S.G., Inc.'s account. The purpose of this check (PX-2) was to pay the balance of the purchase price due on beverage license no. 62-427. On December 5, 1980, another cashier's check (PX-4) number 312503 was issued by the Central Bank of Tampa in the amount of 52,775.25, to C.S.G., Inc. This check represented the balance of the loan proceeds from the Central Bank to P & O, Inc. and C.S.G., Inc. jointly (See PX-2 and PX-6). Collateral pledged as security for said loan (PX-6) includes real property of P & O, Inc., a beverage license of P & O, Inc., the beverage license of C.S.G, Inc., together with certain equipment of C.S.G., Inc. P & O, Inc. and C.S.G., Inc. executed a mortgage to the Central Bank of Tampa to secure said lean (PX-6) and the Central Bank of Tampa, effective December 5, 1980, insured said lean in the amount of 575,000 as evidenced by a fund mortgage form (Px-5) Neither C.S.G., Inc., the Central Bank of Tampa nor Ferrara in his oral statements to Petitioner's representative, disclosed the fact that P & O, Inc. was a co-maker of the $50,000 loan (PX-6) from the Central Bank of Tampa, or that P & O, Inc. had pledged real property and a beverage license as collateral for said loan. At all times pertinent to this procedure, P & O, Inc. was owned by Charles Pitisci, Olga Pitisci and Carlten O'Steen. At all times pertinent Charles Pitisci, Olga Pitisci and Eugene O'Steen were corporate officers of P & O, Inc. The testimony of Ferrara and Eugene O'Steen established that a close personal relationship existed between Ferrara and the owners of P & O, Inc. Ferrara's testimony established that the Central Hank of Tampa demanded additional security, and that P & O, Inc. principals cosigned the note as a personal favor to Ferrara and not to obtain an interest in the licensed business. This evidence was not rebutted by Petitioner. Ferrara did not believe he was under any duty to disclose the role of the Pitiscis and P & O, Inc. with respect to the Central Bank of Tampa loan since he did not believe they had acquired any direct or indirect interest in C.S.G., Inc. or beverage license no. 62-427.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint/Notice to Show Cause. DONE and ENTERED this 28th day of June, 1982 at 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 28th day of June, 1982. COPIES FURNISHED: John A. Beggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Paul Antineri, Jr., Esquire 601 E. Twiggs Street Tampa, Florida 33602 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 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 Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: On October 24, 1985, Petitioner filed an initial application with Respondent to obtain an alcoholic beverage license. The alcoholic beverage license was to be used in the operation of a small restaurant which Petitioner owned, known as El Conquistador Restaurant, in Homestead, Florida. The Petitioner is the sole owner of El Conquistador Restaurant. The application listed the Respondent, Maria Andarcio as the sole proprietor and only person having a financial interest in the business known as El Conquistador Restaurant. During the processing of the application, Mr. Ross, the investigator assigned to Petitioner's case, noticed that the application appeared to have several discrepancies. In particular, Mr. Ross was concerned because the financial information submitted with the initial application listed Julio Andarcio, Respondent's estranged husband, as the sole depositor of the expense account but he was not listed as having any financial interest in the business. Secondly, Petitioner failed to provide sufficient information regarding her employment history. Lastly, a lease which was part of the initial application, identified a potential undisclosed interest, Jose Osario, as a co- leasee. On November 15, 1985, Mr. Ross, routinely mailed a "14 day letter" to Petitioner requesting additional information. In particular, the "14 day letter" directed the Petitioner to provide additional information within 14 days from the date of receipt of the letter. The additional information requested was as follows: List occupation for the past 5 years on personal questionaire. Julio Andarcio must be fingerprinted and submit personal questionaire." The Petitioner failed to provide the information requested in the 14 day letter. Thereafter, Respondent was unable to fully investigate the license application and denied the Petitioner's license on January 8, 1986. For some reason, the Petitioner did not receive the 14 day letter which Respondent sent by regular mail. Therefore, she did not respond within the requested time period. The Petitioner was born in Cuba and speaks very little English. The language barrier contributed to the apparent discrepancies in Petitioner's initial application. Mr. Ross opined that based on all of the information that he had received up to the time of the hearing, the Petitioner would have been granted a beverage license had she only responded to the "14 day letter."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered allowing the Petitioner 20 days from the date thereof in which to provide Respondent with the information requested in the initial "14 day letter," thereby making her application complete. The Respondent shall thereafter review and process the application in the standard and routine manner. DONE and ORDERED this 24th day of October, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 24th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1176 Rulings on Proposed Findings of Fact Submitted by the Petitioner (None Submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. Partially adopted in Finding of Fact. Matters not contained therein are rejected as unnecessary. Adopted in Finding of Fact 5. Rejected as a recitation of testimony and/or argument. Partially adopted in Finding of Fact. Matters no contained therein are rejected as subordinate. COPIES FURNISHED: Armando Gutierrez, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1077 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Suamy Corporation, held license number 23-21872, series 2APS, authorizing it to operate a beer and wine package store (the sale of beer and wine for off-premises consumption) at the premises of a business known as Bristol Sundries, located at 2127 Brickell Avenue, Miami, Florida (hereinafter "the licensed premises").2 Milagros Suarez was the sole shareholder, as well as the sole corporate officer, of the Respondent corporation. On February 11, 1997, Leonard DelMonte, a special agent with the Division of Alcoholic Beverages and Tobacco, undertook an inspection of the licensed premises. Upon entry into the premises, the agent observed shelves on his left that contained bottles of liquor on display, and behind the counter he observed more shelving, which contained more bottles of liquor on display, together with bottles of wine. A cash register was observed on the counter, and an employee was present to attend the needs of customers. The agent inspected, inventoried, and seized 19 bottles of distilled spirits (Petitioner's Exhibits 2-1 through 2-19) on the licensed premises. (Petitioner's Exhibit 1). The bottles were all sealed; labeled as distilled spirits, such as rum, scotch, gin, and vodka; and carried the name, trademark, or insignia of commonly known manufacturers of distilled spirits, such as Johnny Walker, Cuervo, Pinch, and Bombay. The bottles also had affixed to them price stickers, of the same type affixed to the wine that was offered for sale, and contained prices that were consistent with the retail price of the product. Given the facts, it is apparent that Respondent was offering the distilled spirits for sale on the licensed premises.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the charge set forth in the Administrative Action and imposing a civil penalty of $1,000 for such violation, subject to Respondent's option to substitute a period of suspension in lieu of all or a portion of the civil penalty. DONE AND ENTERED this 27th day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 27th day of January, 1998.
Findings Of Fact At all times material hereto Respondent, La Copa Supermarket, Inc., d/b/a La Copa Supermarket, held alcoholic beverage license number 23-1995, series 2APS, for the premises located at 3940 East 4th Avenue, Hialeah, Florida. On January 9, 1986, Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT), following a complaint of sales to underaged persons, began an investigation at the licensed premises. On that date, underaged volunteer, Scott Laurence Spayd (Spayd), date of birth June 5, 1968, entered the licensed premises under the supervision of DABT Investigator, Carol Houston. Spayd purchased a six-pack of Busch beer from Respondent's sales clerk, Alicia Hernandez, without any request for identification or inquiry concerning his age. By notice dated January 13, 1986, DABT advised Respondent of the arrest of Ms. Hernandez for the foregoing sale of alcoholic beverages to an underaged person. The notice also advised Respondent that future violations could result in charges being filed against its license. /1 On February 4, 1986, underaged volunteer, James Jenkins (Jenkins), date of birth April 4, 1969, entered the licensed premises under the supervision of DABT Investigator, Hector Garcia. Jenkins purchased a can of Schaeffer beer from Respondent's sales clerk, Yolanda Martinez, without any request for identification or inquiry concerning his age. By letter dated February 6, 1986, DABT advised Respondent of the arrest of Ms. Martinez for the foregoing sale of alcoholic beverages to an underaged person. The letter further provided: . . . Since this is our final warning to you, we would strongly urge you to personally ad- dress this problem. If you, your agents, ser- vants, or employees violate FSS 562.11 again, we will file a Notice to Show Cause, which will include past violations as well as any future violations, at which time your license will be subject to formal revocation or suspension proceedings. On July 29, 1986, underaged volunteer, Jeraldine Cutler (Cutler), date of birth April 28, 1968, entered the licensed promises under the supervision of DABT Investigator, Ralph Campbell. Cutler purchased a four-pack of Champale Cooler, an alcoholic beverage, from Respondent's sales clerk, Maria Mena, without any request for identification or inquiry concerning her age. Respondent does not dispute the sale of alcoholic beverages to underaged persons as detailed in the preceding paragraphs. Rather, Respondent contends that it has acted reasonably to curb such sales by posting signs near the cash register which state that it is unlawful to sell alcoholic beverages to under aged persons and by instructing its personnel to demand identification from youthful appearing persons. According to Respondent, its clerks are instructed to check the date of birth appearing on the patron's drivers license to insure they are 21 years of age. In the instant case, each sales clerk averred that the underaged volunteer to whom she sold alcoholic beverages appeared to be of legal age. The clerks' testimony is not, however, credible. None of the underaged volunteers appeared to be of legal age, and no ordinary prudent person could have concluded otherwise. Their youthful appearances, which were obvious at the hearing held over one year after the sales, were such that identification should have been checked. This conclusion is buttressed by the reaction of other licensees when faced with a request to purchase alcoholic beverages from the same volunteers. Spayd has been used by DABT in approximately 100 investigations and was refused service approximately 75 percent of the time. Jenkins has been used 26 times and has been refused service 20 times. Cutler has been used approximately 60 times and has been refused service approximately 50 percent of the time. In addition to averring that Cutler appeared to be 21 years of age at the time of the sale, Ms. Mena also averred that she was not aware at the time that Champale Cooler was an alcoholic beverage. Such assertion does nothing to bolster Respondent's defense since, if true, it demonstrates a basic failing in Respondent's efforts to prevent the sale of alcoholic beverages to underaged persons. DABT's policy and procedure manual establishes a penalty guideline for cases of this nature. Where, as here, three sales of alcoholic beverages to underaged persons have occurred, and the licensee has been given written notice after the first and second offense, the prescribed penalty is a $1,000 civil penalty and a 20 day suspension of the license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered imposing a civil penalty of $1,000 against Respondent, and suspending Respondent's alcoholic beverage license for a period of 20 days. DONE AND ORDERED this 17th day of March, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 March, 1987.
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
