The Issue Whether the Respondents committed the violations alleged in the Administrative Action dated June 22, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency charged with administering Florida's alcoholic beverage and tobacco law. § 561.02, Fla. Stat. (2004). The Food Mart holds a Series 2-APS license, numbered 16-13705. On June 2, 2004, the Division conducted an inspection of the premises of the Food Mart. The inspector found six bottles filled with a cream-colored liquid. One bottle was on the counter, next to the cash register, and the other five bottles were inside a cabinet behind the cash register, wrapped in newspaper. The bottles contained a homemade Haitian beverage called cremasse. A friend made the beverage for Mr. Cebatien Dierestil, who intended to serve the beverage at a party at his home. The person who made the beverage took the six bottles to the Food Mart to give it to Mr. Dierestil, but Mr. Dierestil was not in the store at the time. A Food Mart employee placed the bottle of cremasse on the counter, even though it was for Mr. Dierestil's personal use. Cremasse contains a small amount of alcohol, but Mr. Dierestil did not know the exact amount. During the inspection of Food Mart on June 2, 2004, the Division found 97 packages of cigarettes offered for sale that did not carry the stamps indicating that the applicable taxes had been paid on the cigarettes. Some of the 79 unstamped packages of Newport cigarettes and of the 18 unstamped packages of Marlboro cigarettes were commingled with other packages of cigarettes displayed over the cash register, and others were in full cartons placed in the area where the extra inventory of cigarettes was kept. The cigarettes were purchased from a person that came by the Food Mart, and the invoice for the cigarettes was not among the invoices Mr. Dierestil provided to the Division's inspectors. Mr. Dierestil was not aware that the cigarette packages were supposed to carry tax stamps. The Division failed to present evidence establishing the alcoholic content of the liquid inside the bottles found at the Food Mart.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a final order Dismissing Count 1 of the Administrative Action against Cebatien and Marc Dierestil; Finding that Cebatien and Marc Dierestil violated Sections 210.18(1) and 210.15(1)(h), Florida Statutes; Finding that, because of these statutory violations, the Division is authorized to impose administrative penalties on Cebatien and Marc Dierestil pursuant to Section 561.29(1) and (3), Florida Statutes; Imposing an administrative fine in the amount of $500.00 and ordering payment of the excise tax owing on the unstamped packages of cigarettes for the violation of Section 210.18(1), Florida Statutes; and Imposing an administrative fine in the amount of $1,000.00 for the violation of Section 210.15(1)(h), Florida Statutes. DONE AND ENTERED this 27th day of January, 2005, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 27th day of January, 2005.
The Issue Whether or not on or about the 16th day of January, 1976, the licensees, I. and Christine Lockett, did unlawfully fail to maintain the operation and responsibility of their licensed business by relinquishing the control of said licensed premises to Louise Bryant, in violation of Rule 7A-3.17, Florida Administrative Code.
Findings Of Fact The Respondents, I. J. and Christine Lockett, were holders of Series 2- COP beverage license issued by the State of Florida, Division of Beverage during the period of October 1, 1975 up to and including the date of the hearing, as evidenced by the Petitioner's Exhibit No. 3 admitted into evidence. This Exhibit No. 3 is a copy of the beverage license. On or before January 16, 1976, I. J. Lockett left the city of Jacksonville, Florida, and his licensed premises at 846-848 East First Street, Jacksonville, Florida, and went to Miami, Florida to bring back his wife, Christine Lockett. Christine Lockett had gone to Miami, Florida, after the death of their son. Christine Lockett had been running the bar in conjunction with I. J. Lockett prior to her departure for Miami, Florida. When I. J. Lockett left the city of Jacksonville he turned the control and management, responsibility over to one Louise Bryant. This control and management transfer was evidenced by the fact that he gave Louise Bryant $400.00 to purchase items of stock and a salary of $65.00 per week, plus additional monies if Ms. Bryant was successful in the operation of the bar. Upon his return from Miami, Florida, I. J. Lockett gave Ms. Bryant an additional $120.00 for purchase of stock items for the bar. While I. J. Lockett was in Miami and dating from January 16, 1976, Louise Bryant was authorized to purchase wine and beer and did make purchases of that wine and beer as evidenced by the checks written on her bank account to various distributors. Copies of those checks are found in Petitioner's Composite Exhibit No. 4 admitted into evidence. In addition, Louise Bryant had the electric service placed in her name for Chris and J's Beer Garden located at 846-848 East First Street, Jacksonville, Florida. Louise Bryant got the profits from the business as her compensation for maintaining the business in the absence of I. J. and Christine Lockett, she also paid the rent on the premises to the landlord. Sine I. J. Lockett's return from Miami, Louise Bryant has continued to work in the business.
Recommendation It is recommended that the license of the Respondents, I. J. and Christine Lockett, d/b/a Chris and J's Beer Garden be revoked, but the imposition of that revocation be withheld upon a satisfactory showing that Louise Bryant is not currently the defacto manager aid operator and responsible party in the licensed premise. DONE and ENTERED this 18th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles C. Tunnicliff, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 I. J. and Christine Lockett 846-848 East First Street Jacksonville, Florida
The Issue Should Respondent's alcoholic beverage license 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 times pertinent to this proceeding, Respondent held alcoholic beverage license No. 63-02541, series 2APS, for an establishment known as Green and White Texaco (the licensed premises), located at 3501 Cleveland Heights Boulevard, Lakeland, Florida. The Department opened an investigation of the licensed premises after an arrest was made by the Lakeland Police Department related to alleged sales of alcoholic beverages to underage persons by Respondent's employees. James Carl Clinard was identified as the underage Investigative Aide No. 97032 in the Administrative Action filed against Respondent by the Department. On December 5, 1997, James Carl Clinard was 18 years of age (date of birth May 23, 1979) and his appearance on December 5, 1997, was that of a person under 21 years of age. On December 5, 1997, Clinard was working with Officer Leron Strong and Lt. Nelson in an attempt, as an underage Investigative Aide, to purchase an alcoholic beverage from the licensed premises. Before beginning work on December 5, 1997, Clinard was instructed by Strong and Nelson that he was not to attempt to deceive anyone as to his age or appearance. Clinard's identification (a valid State of Florida driver's license which indicated his age to be 18 years) was checked by Lt. Nelson and Officer Strong and found to be legitimate. Clinard's photograph on his identification and his appearance on December 5, 1997, were similar and not misleading as to his age listed on his identification. Clinard was only allowed to carry into the licensed premises his identification and the money furnished by the Department for the purchase of the alcoholic beverage. Sometime around 6:20 p.m. on December 5, 1997, Clinard entered Respondent's licensed premises. Both Strong and Nelson waited outside the licensed premises. After entering the licensed premises, Clinard went to the cooler and selected a bottle of "Bud Light" beer which he brought to the counter. Before selling Clinard the beer, the cashier, Robin Ann Boss asked for and Clinard presented his identification. The cashier sold Clinard the beer, notwithstanding that Clinard's identification showed his age to be 18 years of age. After paying for the beer, Clinard took possession of the beer and exited the licensed premises. Subsequently, Clinard turned the beer over to the Department's agents. Clinard does not remember the cashier giving him a receipt for the beer. Likewise, the agents do not remember Clinard turning in a receipt for the beer. As a result of selling the alcoholic beverage to Clinard, Robin Ann Boss was arrested by Officer Strong. On December 8, 1997, Lt. Nelson mailed Respondent an Official Notice advising Respondent that its employee, Robin Ann Boss, had been "warned or charged" for selling, giving, or serving persons under 21 years of age alcoholic beverages in violation of Section 562.11, Florida Statutes. Crystal Henry was identified as the underage Investigative Aide No. 97028 in the Administrative Action filed against the Respondent by the Department. On January 7, 1998, Henry was 16 years of age (date of birth October 22, 1981) and her appearance on January 7, 1998, was that of person under the age of 21 years. On January 7, 1998, Henry was working with Agent Cleveland McKenzie and Anne Ekstrand in an attempt, as an underage Investigative Aide, to purchase alcoholic beverages or tobacco products from the licensed premises. Before beginning work on January 7, 1998, Henry was instructed by Agents McKenzie and Ekstrand that she was not to attempt to deceive anyone as to her age or appearance. Agents McKenzie and Ekstrand checked Henry's identification (a valid State of Florida driver's license which indicated her age to be 16 years) and found it to be legitimate and found that her identification was not misleading as to her age or her appearance on January 7, 1998. Henry was only allowed to carry into the licensed premises her identification and the money furnished to her by the Department for the purchase of the alcoholic beverage and tobacco product. Sometime around 5:00 p.m. on January 7, 1998, Henry entered the licensed premises. Upon entering the licensed premises, Henry proceeded to the beer cooler and obtained a Bacardi Breezer wine cooler. Henry then walked to the check-out counter with the wine cooler and asked the clerk for a five-pack of Black and Mild Cigars. The sales clerk completed the sale without asking Henry for any form of identification. Henry paid the sales clerk $1.79 for the cigars and $2.09 for the wine cooler. Henry took possession of the wine cooler and cigars and exited the licensed premises. Subsequently, Henry turned the wine cooler and cigars over to Agent McKenzie. Henry does not remember the clerk giving her a receipt for the wine cooler and cigars. Likewise, the agents do not remember Henry turning in a receipt for the wine cooler and cigars. The clerk was identified as Valerie Ann Walker, who was subsequently charged with and arrested for, the sale of an alcoholic beverage and tobacco product to an underage person in violation of Section 562.11, Florida Statutes. A Final Warning was issued to Respondent on January 9, 1998, advising Respondent of the violation and giving Respondent notice that another violation would result in the issuance of an Administrative Action by the Department which could subject Respondent's alcoholic beverage license to formal revocation or suspension proceedings. Enrique Ramos was identified as the underage Investigative Aide No. 97033 in the Administrative Action filed against the Respondent by the Department. On February 17, 1998, Ramos was 18 years of age and his appearance on February 17, 1998, was that of a person under the age of 21 years. On February 17, 1998, Enrique Ramos was working with Agents McKenzie and Ekstrand in an attempt, as an underage Investigative Aide, to purchase alcoholic beverages from the licensed premises. Before beginning work on February 17, 1998, Ramos was instructed by Agents McKenzie and Ekstrand not to attempt to deceive anyone about his age or appearance. Agents McKenzie and Ekstrand checked Ramos' identification (a valid State of Florida driver's license which indicated his age to be 18 years) and found his identification to be legitimate and his identification not misleading as to his age or appearance. Ramos was only allowed to carry into the licensed premises his identification and the money furnished by the Department for the purchase of the alcoholic beverage. At approximately 4:15 p.m. on February 17, 1998, Ramos entered the licensed premises and went to the beer cooler and obtained a six-pack of Budweiser Beer (12-ounce bottles) and approached the check-out counter and placed the beer on the counter. The clerk sold Ramos the beer without checking his identification. Ramos paid the clerk $5.19 for the beer. Ramos took possession of the beer from the clerk and exited the licensed premises where he subsequently turned the beer over to Agents McKenzie and Ekstrand. The clerk was later identified as Ravin E. Bradshaw. Bradshaw was charged with selling an alcoholic beverage to a person under the age of 21 in violation of Section 562.11, Florida Statutes. Respondent's back-up cash register tapes (Respondent's Exhibit number 2) do not reflect a beer sale during the period of time Ramos testified that he purchased the six-pack of Budweiser Beer on February 17, 1998. However, I find the testimonies of Ramos, Agent McKenzie, and Agent Ekstrand to be more credible concerning the purchase of the beer on February 17, 1998, than the back-up cash register tapes or the testimony of Bradshaw, Respondent's clerk and Jung I. Huang, Respondent's manager. The testimony of Respondent's clerks were that they were instructed to "card" or check each alcoholic beverage or tobacco product purchaser's identification to determine if the purchaser was 21 years old or older. However, it was also the practice of Jung Huang and his wife, Yu Chin Lin, a.k.a Michelle, president of Green and White, Inc., to become angry with a clerk who was "carding" every customer. In some instances, both Huang and Michelle would advise a clerk not to card certain customers. Respondent failed to comply with all the training and record-keeping requirements of the Responsible Vendor Program set out in Sections 561.701-561.706, Florida Statutes, notwithstanding the testimony of Jung Huang to the contrary and whose testimony I find lacks credibility.
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 the Division of Alcoholic Beverages and Tobacco enter a final order suspending Respondent's alcoholic beverage license No. 63-02541, 2APS for a period of seven days and it is further recommended that Respondent be required to pay an administrative fine of $1,000.00 to the Division of Alcoholic Beverages and Tobacco. DONE AND ENTERED this 10th of August, 1999, 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 (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 10th day of August, 1999. COPIES FURNISHED: Elsa Lopez Whitehurst, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Tony Dodds, Esquire 825 East Main Street Lakeland, Florida 33801 Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 William Woodyard, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times material hereto, respondent, Cesar J. Reyes, held alcoholic beverage license number 23-05034, series 2-COP, for the premises known as Busy Cafeteria Bar (the "premises"), located at 4601 West Flagler Street, Miami, Dade County, Florida. In November 1993, Special Agent Joe Lopez of the Division of Alcoholic Beverages and Tobacco, together with the assistance of a confidential informant (CI), began an undercover investigation of the premises. Such investigation was predicated on information Special Agent Lopez had received from federal authorities which indicated that narcotics were being sold upon the premises. On December 1, 1993, Special Agent Lopez and the CI entered the licensed premises. While inside the premises, the CI met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On the same occasion, Special Agent Lopez met with respondent, and he also purchased a small plastic package containing 1/2 gram of cocaine for $30.00. 1/ On December 2, 1993, Special Agent Lopez and the CI returned to the licensed premises. While inside the licensed premises, they again met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On December 7, 1993, Special Agent Brian Weiner of the Division of Alcoholic Beverages and Tobacco served respondent with an emergency order suspending his alcoholic beverage license, and placed respondent under arrest for the sale of cocaine. Incident to such arrest, Special Agent Weiner searched respondent's person and discovered six small plastic packages, each containing 1/2 gram of cocaine, in a small box tucked under respondent's waist band.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing Counts 1 and 2 of the notice to show cause, finding respondent guilty of Counts 3, 4, 5 and 6 of the notice to show cause, and revoking respondent's alcoholic beverage license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1993. 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 28th day of December 1993.
Findings Of Fact At all times pertinent to the issues herein, alcoholic beverage license No. 26-01841, Series No. 2-APS, was issued to Respondents, Frank D. and Estella S. Ryers, for their establishment known as the Big B Restaurant, located at 5570 Avenue B, Jacksonville, Florida. A 2-APS license permits the package sale only of beer and wine. It does not permit the consumption on the premises of beer, wine, or liquor. On March 27, 1983, Investigator Wendell M. Reeves conducted an undercover operation directed against the Big B Restaurant predicated upon reports received by Petitioner that Respondents were conducting sales of alcoholic beverages not permitted by the license at the licensed premises. In furtherance of that operation, Reeves utilized another beverage agent, Van Young, in an undercover capacity to make a controlled buy of an improperly sold substance from the licensees. Prior to sending Young into the licensed premises, Reeves searched Young to ensure that he, Young, had no alcoholic beverage or money in his possession. Satisfying himself that that was the case, he gave Young $15 in U.S. currency and sent him into the licensed premises to make the buy. Young entered the Big B Restaurant at 1:00 p.m. and came out 17 minutes later. When he came out of the licensed premises, Young came over to where Reeves was waiting and turned over to him a sealed 200 ml bottle of Fleishman's Gin. Young told Reeves that he had purchased the gin in the licensed premises from a black male whose description matched that of Respondent Frank D. Byers which is contained on Respondent's application for license. Respondent Frank Byers denies making the sale. On balance, however, there is little doubt it was Respondent who made the sale, especially in light of the fact that this same licensee was issued a letter of warning by the Division of Alcoholic Beverages and Tobacco in October 1981 for possession on the premises of an alcoholic beverage not permitted to be sold under the license. Young also stated that he purchased a second bottle which he consumed on the premises with another black male. However, this evidence was in the form of Reeves' report of what was told him by Young. As such, it is clearly hearsay and can be used only to corroborate or explain other admissible evidence. Therefore, as to the allegation regarding the consumption of the gin on the premises, since it is the only evidence of that offense, it cannot be used to support a finding of fact on that allegation. It may, however, be used to explain how Young got the bottle with which he was seen by Reeves to come out of the licensed premises. Several days later, on March 30, 1983, Reeves again entered the licensed premises, where he told Respondent Estella Byers he was there to inspect the site. She opened the cooler for him and he inspected the beer inside and the cigarettes. While he was doing that, however, he noticed her take a cloth towel and drape it over something behind the bar. He went over to it, removed the towel, and found that it covered a bottle of Schenley's gin. Mrs. Byers immediately said she thought it was her husband's, Respondent Frank Byers, but another individual present at the time, Sharon Thomas, said she had taken it from her brother, who was drunk, and had put it there. Again, as to Ms. Thomas' comments, they, too, are hearsay and can only serve here to explain or corroborate other admissible evidence. In any case, after Ms. Thomas made her comment, she was immediately contradicted by Respondent Estella Byers, who again indicated she thought the bottle was her husband's. In any case, at the hearing, Respondent Estella Byers contended she did not know it was there. On balance, Mr. Reeves' testimony that she covered it with a towel while he was inspecting and the evidence of the prior warning for an identical offense tend to indicate she did know it was there and that it was unlawful for it to be there. There is, however, no evidence to establish sufficiently the reason for its being there.
The Issue Whether respondent's alcoholic beverage license should be disciplined on the charge that it violated Sections 212.15(2)(b) and 561.29(1)(a), Florida Statutes (1981), by failing to remit taxes collected pursuant to Chapter 212, Florida Statutes (1981).
Findings Of Fact On May 4, 1981, respondent was issued alcoholic beverage license No. 16-2232 SRX, Series 4 COP. The license has now expired. (Testimony of Boyd; P- 1.) On June 26, 1951, the Florida Department of Revenue issued a warrant for the collection of delinquent sales and use tax due and unpaid by respondent. The warrant states that respondent is indebted to the Department of Revenue for delinquent sales tax, penalty, and interest, totaling $22,710.66. This indebtedness remains outstanding and unpaid. (Testimony of Fox; P-2.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the notice to show cause filed against respondent be dismissed. DONE AND RECOMMENDED this 15th day of September, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1982.
Findings Of Fact Wiley U. Pridgett, d/b/a Strip World Topless Entertainment, holds a Series 2-COP license to sell alcoholic beverages at 2201 South Orange Blossom Trail, Orlando. Petitioner has requested a new Series 2-COP license to operate at the same location. Petitioner has no specific plans for the use of her license. Her testimony established only that she ha a a close relationship with Wiley U. Pridgen and would look to him for guidance.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State of Florida, Division of Alcoholic Beverages and Tobacco, enter a final order denying the application of Cheryl Ann Nascimento for an alcoholic beverage license. DONE AND ENTERED this 25th day of March, 1981, in Tallahassee, Leon County, 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 25th day of March, 1981. COPIES FURNISHED: H. Franklin Robbins, Jr., Esquire 112 South Lake Avenue Orlando, Florida 32801 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether respondent's alcoholic beverage license should be revoked or suspended on grounds that its corporate officer was convicted of a federal crime--Conspiracy to Import Marijuana.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: In 1977, the Division issued an alcoholic beverage license No. 23-276, series 4-COP, to licensee. (Joint Exhibit Nos. 1, 8.) At all times material to this proceeding, Eugene Willner has been an owner and officer of the licensee corporation. On August 27, 1980, Eugene Willner was convicted of violating federal law; the U.S. District Court of the Eastern District of Louisiana found him guilty of Conspiracy to Import Marijuana, a violation of Title 21 U.S.C. 963. (Joint Exhibit Nos. 1, 4, 8.) By application dated March 10, 1981, the licensee sought Division approval to transfer the beverage license in question to a new owner. The Division notified licensee that it intended to deny the application because of the pending administrative charge against the licensee, the charge which is the subject of this proceeding. (Joint Exhibit Nos. 5, 6, 8.)
Recommendation Based on the foregoing, it is RECOMMENDED: That licensee's alcoholic beverage license No. 23-276, series 4-COP, be REVOKED. DONE AND RECOMMENDED this 3rd day of February, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1982.
The Issue This matter arises out of the denial or rejection of a filing by the Liberty Bank of Cantonment with the Division of Alcoholic Beverages and Tobacco for the purpose of perfecting a lien against a beverage license pursuant to Section 561.65, Florida Statutes. Mr. Charles L. Hoffman, attorney for Liberty Bank of Cantonment, testified on behalf of the Petitioner. The Petitioner offered two exhibits into evidence and both were accepted without objection. The Respondent presented no evidence on its behalf. Neither party filed proposed findings of fact and conclusions of law. However, the Petitioner filed a Memorandum of Law in support of its legal argument as to why it should be granted a lien against Beverage License No. 27- 426. To the extent that the legal conclusions presented in that memorandum of law and the facts stated are not adopted in this order, they are considered to be irrelevant to the issues in this cause or not supported by the facts or the law.
Findings Of Fact On July 10, 1981, The Rafters, Inc. executed a security agreement in favor of the Liberty Bank of Cantonment. That security agreement is a part of Petitioner's Exhibit 1 and included a security interest in State Liquor License No. 27-426 issued in the name of The Rafters, Inc. On July 24, 1981, the necessary U.C.C. documents were filed in order to permit the Liberty Bank of Cantonment to file the proper documents with the Secretary of State. No documents were filed with the Division of Alcoholic Beverages and Tobacco. On September 20, 1982, the Petitioner first filed the necessary documentation with the Division of Alcoholic Beverages and Tobacco for the purpose of perfecting a lien pursuant to Section 561.65, Florida Statutes. The Division of Alcoholic Beverages and Tobacco rejected the filing on the grounds that it was filed beyond the 90-day period provided in Section 561.65(4), Florida Statutes. On October 19, 1982, The Rafters, Inc. filed its answer to an amended complaint in foreclosure which had been filed by the Liberty Bank of Cantonment against the property set forth in the aforementioned security agreement. In its answer, The Rafters, Inc. admitted all allegations of the amended complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco enter a Final Order rejecting the application for a lien filed by the Petitioner to perfect a security interest in Beverage License No. 27-426. DONE and ORDERED this 20th 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 20th day of April, 1983. COPIES FURNISHED: Charles L. Hoffman, Jr., Esquire Seventh Floor, Seville Tower 226 South Palafox Street Post Office Box 1831 Pensacola, Florida 32598 Harold F.X. Purnell, Esquire William A. Hatch, Esquire General Counsel Department of Business Regulation Dept. of Business Regulation 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Howard M. Rasmussen, Director Gary Rutledge, Secretary Division of Alcoholic Beverages Dept. of Business Regulation and Tobacco The Johns Building 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301
The Issue The issue presented in whether an agent or employee of Respondent sold alcoholic beverages to a person under the age of 21, in violation of Section 562.11(1)(a), Florida Statutes, as alleged in the Administration Action issued September 10, 1997, and if so, what penalty is appropriate.
Findings Of Fact At all times relevant and material to this proceeding, Respondent held alcoholic beverage license no. 74-01498, series 2APS, for an establishment known as My Super Store ("the licensed premises"), located at 701 South Martin Luther King Boulevard, Daytona Beach, Volusia County, Florida. Daytona Beach Police Department opened an investigation of the licensed premises after it received numerous complaints of illegal activity at the licensed premises. Paris Anthony is a black female born on June 13, 1977, and was 19 years old on May 5 through May 21, 1997. On May 5, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The bottle bore the manufacturer's trade mark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the cashier. The cashier accepted payment for the beer, but did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her. When Ms. Anthony asked for a receipt for the beer, the cashier, in a raised voice, commented to Ms. Anthony, "Well, you're not old enough, are you?" or words to that effect. Ms. Anthony answered that she was not, but was nonetheless permitted to leave the premises with the bottle of beer. During the conversation between the cashier and Ms. Anthony, Respondent was seated an arm's length away from the cashier. Respondent was not talking to anyone at the time. Although Respondent looked up at Ms. Anthony and the cashier during the exchange reported in paragraph 5, above, he took no action in response to the assertion that Ms. Anthony was not of legal age to purchase alcoholic beverages. On May 7, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The beer bore the manufacturer's trademark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the same cashier who was working behind the counter on May 5, 1997. The cashier did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her. Ms. Anthony departed the licensed premises with the bottle of beer. The Respondent was observed on the premises by Ms. Anthony at the time of the purchase. On May 21, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The beer bore the manufacturer's trademark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the same cashier who was working behind the counter on May 5 and May 7, 1997. The cashier did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her. Ms. Anthony departed the licensed premises with the bottle beer. The Respondent was observed on the premises by Ms. Anthony at the time of the purchase. At hearing, nine months after the incident, Ms. Anthony appeared to be a young woman of an age that a prudent person would check to determine whether she was 21 years old. Respondent testified he had no employees at the time of the violations, but allowed "volunteers" to help him on the licensed premises, including Benette Lisa Brown. According to the Respondent, he was always on site, and in charge. The "volunteers," according to Respondent, did not work the cash register; however, Respondent's testimony was not consistent with Ms. Anthony's and that of a former "volunteer." Respondent's testimony was not credible. The person at the sales counter was working under the supervision of Respondent who was present on the premises each occasion Ms. Anthony purchased beer. At the time of the violations, Respondent did not have signs posted on the licensed premises informing customers that the vendor had a policy against serving alcoholic beverages to underage persons and informing customers that the purchase of alcoholic beverages by an underage person or the illegal use of or trafficking in controlled substances will result in ejection from the licensed premises and prosecution. The training of employees or agents was inadequate and their supervision poor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent's alcoholic beverage licensee No. 74-01498, series 2APS, be suspended for a period of 30 days, and it is further recommended that Respondent be ordered to pay a $1,000 civil penalty to the Petitioner. DONE AND ENTERED this 25th day of March, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1998. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joan Lowe, Esquire 520 North Ridgewood Avenue Daytona Beach, Florida 32114-2188 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
