The Issue The issues for determination are whether Respondent, holder of an alcoholic beverage license, sold or permitted the sale of alcoholic beverages to minors on his licensed premises; whether Respondent retained alcoholic beverage invoices or sales tickets for three years in accordance with licensure requirements; and whether Respondent kept cigarette invoices or sales tickets for three years in accordance with licensure requirements.
Findings Of Fact Respondent is David L. Crews, holder of Alcoholic Beverage License No. 55-00162, series 1-APS, for a licensed premises known as Crews Texaco located in Nassau County, Florida. On December 15, 1989, Respondent sold William Christopher Brannan a twelve pack of beer which is an alcoholic beverage. Brannan was 17 years of age at the time Respondent sold him the beer. At the time of the sale, Respondent did not ask for proof of age or any other form of identification from Brannan. Accompanying Brannan on December 15, 1989, were two other teenagers: Robert Terrell Simmons, Jr., and Larry W. Wilkerson. Respondent sold Simmons a case of Busch beer, an alcoholic beverage, at the same time as the sale to Brannan. Simmons was 18 years of age at the time of the sale. Respondent did not ask for proof of age or any other form of identification from either Simmons or Wilkerson. It was common knowledge in the area that Respondent would readily sell alcoholic beverages at a higher than normal price to persons under the lawful age of 21 years. Respondent charged Brannan and Simmons a higher price for the alcoholic beverages purchased by them because he knew they were under the age of 21 years. Brannan, Simmons and Wilkerson had attempted to purchase alcoholic beverages from Respondent earlier in the evening, but Respondent waved them away because law enforcement personnel were investigating a domestic disturbance near his business. Later in the evening of December 15, 1989, after purchasing the alcoholic beverages from Respondent, the three youths were involved in a alcohol related accident and Brannan was killed. On April 30, 1990, Respondent was convicted in Nassau County Court of two counts of providing alcoholic beverages to a minor and paid a fine of $127.50 on each count. He also received a 30 day suspended sentence on each count. On March 9, 1990, agents for Petitioner's Division of Alcoholic Beverages and Tobacco interviewed Respondent about the matter of sale of alcoholic beverages to underage persons and conducted an inspection of his licensed premises. In the course of the inspection, the agents requested that Respondent produce his alcoholic beverage and cigarette invoices. Respondent was unable to produce the invoices and admitted to the agents that he had used the invoices for writing paper and had then thrown them away. Respondent reaffirmed these statements at the final hearing. As of December 20, 1991, Respondent has failed to produce either alcoholic beverage or cigarette invoices. As established by his own testimony at the final hearing, prior to March 9, 1990, Respondent did not maintain either alcoholic beverage or cigarette invoices on the licensed premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered suspending Respondent's beverage license bearing number 55-00162, Series 1- APS, for a period of 40 days and requiring payment of a administrative fine in the amount of $2,000. DONE AND ENTERED this 14th day of January, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 14th day of January, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-21. Adopted, although not verbatim. 22.-26.Rejected, unnecessary. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Robin L. Suarez, Esq. Assistant General Counsel Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007 David L. Crews U. S. 1 & 5th Street Hilliard, Florida 32046 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007 Janet Ferris, Secretary Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1000 Richard W. Scully, Director Division of Alcoholic Beverages Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007
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 The issue for determination is whether Respondent committed the offenses set forth in the Administrative Action and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Café was a restaurant, serving full course meals, and was located at 1599 North State Road 7, Lauderhill, Florida. At all times material hereto, the sole owner of Café was Mary Fernand. On December 18, 2003, Café, through Ms. Fernand, made application for a license from DABT. The type of license applied for was a retail alcoholic beverage license, in particular a special alcoholic beverage license, allowing it to purchase and sell alcoholic beverages. In a section of the application, "SECTION VIII-SPECIAL LICENSE REQUIREMENTS," Ms. Fernand was notified, among other things, that the "Special Alcoholic Beverage License" was "issued pursuant to 561.20(2)(b), Florida Statute [sic] or Special Act and as such we acknowledge the following requirements must be met and maintained: ... DERIVE 51 % OF GROSS REVENUE FROM FOOD AND NON- ALCOHOLIC BEVERAGES. SERVICE OF FULL COURSE MEALS MUST BE AVAILABLE AT ALL TIMES ALCOHOLIC BEVERAGES ARE BEING SERVED." As the person completing the application, Ms. Fernand was required to read, initial, and date Section VIII. A temporary special alcoholic license was issued by DABT to Café on December 18, 2003. The application was approved by DABT on December 19, 2003, and, subsequently, a permanent special alcoholic license was issued by DABT. DABT issued Café license number BEV16-17022 4-COP SRX. The license was held through Ms. Fernand. As a result of having been issued such a license by DABT, Café was and is subject to the regulatory jurisdiction of DABT. DABT conducts periodic audits of all restaurants holding a special SRX license to make sure that the restaurants are complying with the special license requirements. As part of this audit process, special agents from DABT, among other things, conduct announced visits, as well as undercover visits, at the restaurants and request the licensee to submit all necessary records for the audit. A SRX license holder has a continuing requirement to derive at least 51 percent of its gross revenue from sales of food and non-alcoholic beverages. DABT places the burden upon the licensee to show compliance with the SRX license requirements. Furthermore, DABT requires the licensee to keep clear, legible records in English and to submit such records if requested by one of its agents. When DABT requests the licensee to produce the records to establish compliance with the SRX license requirements, but the licensee fails to show compliance through the requested records, DABT determines that the licensee was not meeting the requirements to operate with the SRX license. The proof that DABT considers to establish compliance include monthly sales and purchase records of food and non- alcoholic beverages and sales and purchase records of alcoholic beverages, guest checks, z-tapes, monthly income statements (showing separately the food and non-alcoholic beverage sales), and sales of alcoholic beverages. On July 19, 2004, DABT's Special Agent Trenesa Davis visited Café to request Café to produce the records necessary for an audit under the SRX license. She found Café closed and locked. Special Agent Davis obtained Ms. Fernand's telephone number and contacted her that same day. Special Agent Davis informed Ms. Fernand of the records needed for the audit, and Ms. Fernand indicated that she would provide the requested records on July 21, 2004. However, Ms. Fernand failed to provide the requested records on July 21, 2004. The following day, July 22, 2004, Special Agent Davis again contacted Ms. Fernand by telephone. Ms. Fernand indicated that she would provide the requested records on July 23, 2004. But, again, Ms. Fernand failed to provide the requested records. On July 26, 2004, once again, Special Agent Davis contacted Ms. Fernand by telephone regarding the non-production of the requested records. Ms. Fernand indicated that she was ill, and Special Agent Davis informed Ms. Fernand that she could come to where Ms. Fernand was living and issue her an official notice of what DABT needed, with the compliance date. Ms. Fernand agreed, and Special Agent Davis proceeded to where Ms. Fernand was living. On that same day, July 26, 2004, Special Agent Davis issued Ms. Fernand an official notice to produce certain documents. The notice provided, among other things, that Ms. Fernand had "14 days to produce the following records: Separate records of all purchases and gross retail sales of food and non-alcoholic beverages & alcoholic beverages, Guest checks, cash register tapes, and any other documentation used to determine your food & beverage sales." Furthermore, the notice warned that "Failure to comply may result in administrative charges being filed against your alcoholic beverage license. *COMPLIANCE DATE AUGUST 13, 2004*." The notice was dated July 26, 2004. Ms. Fernand signed the notice. Ms. Fernand received the notice on July 26, 2004. On August 6, 2004, Special Agent Davis received a package from Café, but did not open it. She immediately took the package to DABT's auditor assigned to conduct Café's audit, Ronald Flores. Special Agent Davis opened the package in the presence of Auditor Flores. Inside the package were the following: (1) 11 receipts, dated between May 6 and June 23, 2004, showing purchases of alcohol from another vendor, BJ's Wholesale Club; (2) three blocks of guest checks: block one--numbered from 512402 to 512450; block two--numbered 100703, 100705, 100707- 100709, 100711, and from 100713 to 100750, with the guest checks from 100713 to 100750 being blank; and block three--numbered from 100592 to 100595 and 100632; and (3) 26 loose kitchen tickets, numbered from 84551 to 84570 and from 84572 to 84577. All of the kitchen tickets failed to reflect a date, the name Café or of any restaurant, and food sales. Further, the guest checks reflected only sales of alcoholic beverages; reflected only dates on those numbered 100708 and 100709 ("05-28-04" and "6/4"); and reflected dates ("4/18/04" through "5/31/04") and the name Café on those numbered 512402-512450, with the dates on three checks not being legible. The package contained no other record of food sales or purchases and no record of purchasing alcoholic beverages from distributors. Furthermore, the package contained no record of monthly schedules showing food and non-alcoholic and alcoholic beverage sales. Based on the records presented by Ms. Fernand, Auditor Flores was unable to perform an audit required by Café's SRX license and unable to make a determination as to whether Café met the 51 percent requirement of its license. On August 8, 2004, Special Agent Davis contacted Ms. Fernand by telephone in the presence of Auditor Flores, with the telephone on speaker-phone. Special Agent Davis inquired as to the whereabouts of Café's food and non-alcoholic beverage records. Ms. Fernand responded that she was not aware that Special Agent Davis wanted the food and non-alcoholic records but that she (Ms. Fernand) would provide them by August 13, 2004, which was the original compliance date of DABT's notice to produce records. However, Special Agent Davis did not receive any records from Ms. Fernand until August 16, 2004, three days beyond the compliance date to produce the records. The package received from Ms. Fernand contained three computer-generated documents for Café: an income statement, representing "6 Months Ended June 30, 2004"; a 2004 balance sheet, as of June 30, 2004 and 2003, and a balance sheet of liabilities and stockholders' equity, as of June 30, 2004 and 2003. Reflected at the bottom of each document was the following: "See Accountants' Compilation Report." The income statement reflected for January 1 through June 30, 2004, among other things, the following: food sales in the amount of $8,417.34 and alcohol sales in the amount of $3,039.66, totaling $11,457.00; gross profit in the amount of $5,942.51; total operating expenses in the amount of $23,901.19; and a net loss of income in the amount of $17,958.68. The income statement did not reflect monthly schedules of sales or any source of documents to verify the figures in the statement of income. No document in the package received on August 16, 2004, reflected its source or its creator, and none were signed. However, at hearing, Ms. Fernand admitted that she had prepared the income statement. Moreover, in the package received on August 16, 2004, no food sales and purchase records and no alcohol sales and purchase records were included. Again, based on the records presented by Ms. Fernand on August 16, 2004, as well as August 6, 2004, Auditor Flores was unable to perform an audit required by Café's SRX license and unable to make a determination as to whether Café met the 51 percent requirement of its license. On August 18, 2004, Auditor Flores forwarded to Special Agent Davis a memorandum advising her, among other things, that the records submitted by Café were incomplete to make a determination as to whether Café complied with the "SRX" requirements, that Café needed to provide the register tapes in order to verify sales, and that Café needed to provide monthly sales schedules with a breakdown of food and alcoholic beverage sales. Further, on August 18, 2004, Special Agent Davis issued a notice to Café that DABT intended to file an administrative complaint against it for failure to maintain records, citing the statutory provision, and SRX violations, citing the statutory provisions. The notice was mailed, certified to Café. Ms. Fernand admits that, between December 2003 and March 2004, Café sold food, as it was a "full restaurant," and alcoholic and non-alcoholic beverages; however, no alcoholic beverages were sold in December 2003. Further, she admits that, in December 2003, she had a "get together for a few friends" and a few patrons at Café; and that, in January 2004, a party was held at Café at which alcoholic beverages were sold of which she kept records. Additionally, Ms. Fernand acknowledges that she was aware that she was required to keep records and admits that she kept records of the food sales and alcoholic and non-alcoholic beverage sales. Although she obtained the license from DABT for Café in December 2003, Ms. Fernand did not open Café for business until April 17, 2004, as a grand opening. On June 26, 2004, Ms. Fernand lost access to Café as a result of being closed by the City of Fort Lauderdale. Also, in August 2004, she was evicted by the landlord of the building in which Café was located. Subsequently, she paid the landlord the back rent and was allowed to use the building again. She did not re-open Café until around November 20, 2004, even though the City of Fort Lauderdale notified her around September 7, 2004, that Café could be re-opened. Because of the eviction in August 2004, when Special Agent Davis requested the documents, Ms. Fernand had to request the landlord to go into Café and get the documents for her (Ms. Fernand). Ms. Fernand provided to Special Agent Davis the documents given to her by her landlord. Prior to losing access to the building in which Café was located, during the loss of access, and after re-gaining access, a box containing Café's records was located at Café. At no time, when she did not have access, did Ms. Fernand request the landlord to bring the box to her in order to provide food and beverage records to DABT. At no time, after gaining access to the building or prior to hearing, did Ms. Fernand review the records in the box and provide the requested food and beverage records to DABT.
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: Finding that Ran D Vou Café, d/b/a Ran D Vou Café violated Section 561.20(2)(a), Florida Statutes (2003). Finding that Ran D Vou Café, d/b/a Ran D Vou Café violated Section 561.55(3)(b), Florida Statutes (2003). Revoking the SRX license of Ran D Vou Café, d/b/a Ran D Vou Café, with prejudice for Ms. Mary Fernand not to obtain another SRX license for a five-year period, but without prejudice for her to apply for and obtain any other license for which she may be otherwise qualified to hold. DONE AND ENTERED this 24th day of April 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 24th day of April, 2006.
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
The Issue Whether Respondent's plea of nolo contendere to the crime of possession of a controlled substance (for which adjudication was withheld) is sufficient to support the imposition of discipline with regard to his alcoholic beverage license.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to issue beverage licenses pursuant to Chapter 561, Florida Statutes, and applicable rules. Prior to September 11, 2000, Respondent, doing business as Smiley's, was the owner and holder of a beverage license, DBPR License No. 74-05336, Series 2-COP, which permits him to sell beer and wine for consumption on premises. On October 9, 1998, Respondent was charged by information with sale and delivery of cocaine. He was acquitted of that charge on May 12, 2000. Subsequently in a separate incident, Respondent was charged with possession of cocaine and on September 11, 2000, pleaded no contest to that charge. Pursuant to Respondent's timely request for formal proceedings, Petitioner's counsel initiated discovery in the course of this administrative proceeding through a Request for Admissions to which Respondent failed to respond. Respondent failed to provide a satisfactory explanation for this circumstance and, upon motion of Petitioner, the Request for Admissions was deemed admitted. Those admissions establish that Respondent entered a no contest plea on September 11, 2000, to the charge of possession of cocaine and that the plea bargain negotiated at that time also included two days' incarceration. Additionally, the admissions establish that Respondent is aware that possession of cocaine is a crime punishable by imprisonment for a term of five years. Respondent's own testimony is uncorroborated by other direct evidence and fails to establish that he possesses good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's alcoholic beverage license, DBPR License No. 74-05336, Series 2-COP. DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 July, 2001. COPIES FURNISHED: Paul Kwilecki, Jr., Esquire 629 North Peninsula Drive Daytona Beach, Florida 32118 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Lt. John P. Szabo Department of Business and Professional Regulation 400 West Robinson Street, Room 709 Orlando, Florida 32801 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact 6. A thorough review of the entire record of this matter reveals that the Findings of Fact contained in the Recommended Order are based on competent, substantial eviclence and that the proceedings on which the findings were based complied with the essential requirements of the law. 7. The Division hereby adopts and incorporates by reference the Findings of Fact as set forth in the Recommended Order.
Conclusions This matter comes before me for final Agency Order. The issue before me is whether and to what extent Respondent’s alcoholic beverage licenses are subject to penalties pursuant to Sections 212.14, 212.15, 832.05, 561.29(1)(a) and (e), Florida Statutes, and Rule 61A-2.022 Florida Administrative Code. Whether the Respondent’s Aicoholic Beverage Licenses are subject to revocation pursuant to Section 561.29, Florida Statutes. 3
The Issue Whether the Division of Alcoholic Beverages and Tobacco (DABT) should take disciplinary action against respondent or its DABT license for the reasons alleged in the notice to show cause?
Findings Of Fact At all pertinent times, respondent 201 West, Inc. d/b/a Central City/Congo Craig's Safari, has held a quota license, No. 11-00259 4COP, authorizing it to sell alcoholic beverages at 201 West University Avenue, Gainesville, Florida. On August 23, 1991, Craig Cinque, respondent's sole shareholder and officer, executed on respondent's behalf a consent agreement which petitioner accepted and filed on September 6, 1991, resolving administrative proceedings then pending. The consent agreement provides: "The second and third floors now known as 'Congo Craig's' shall not admit customers under 21 years of age for a period of two years " Underaged Patrons Apprehended At eleven o'clock on a crowded Saturday night, September 7, 1991, five DABT officers entered Congo Craig's to check patrons' ages. DABT and other witnesses agreed that the bar had enough staff demanding proof from patrons of their ages as they entered, and that the lighting was adequate for this purpose. The DABT officers checked a number of already admitted patrons' "ID's" themselves, and found a false one that a 20-year-old woman, Amy L. Bruns, whom they saw drinking draft beer, had used to gain admission. The Maryland driver's license described a woman of its bearer's height and weight, but depicted a blonde, not the brunette the officers accosted. Petitioner's Exhibit No. 3. The next time DABT officers, again a contingent of five, discovered an under age patron at Congo Craig's was on October 12, 1991, another Saturday night when DABT and other witnesses agreed that the bar had enough staff checking patrons' ages as they entered, and that the lighting was adequate. Kim M. Chiappara, then 20 years and eight months old, was sharing a pitcher of draft beer with her older sister and others when she was interrogated by the DABT officers that night. A search of her person turned up no false identification. She was not asked whether she had used any, or borrowed her sister's identification, to get by the bouncers. The next Friday night DABT officers apprehended Dari A. Layne, who was born on October 27, 1972, at Congo Craig's shortly before midnight, as she was consuming a mixed drink. The "very good" counterfeit Pennsylvania driver's license she produced when asked for identification has her photograph, but lacks a holographic state stamp on the obverse and has a photocopied reverse, albeit duly laminated. After midnight on the same foray, DABT officers discovered Kim C. Stampler, three months and a week shy of her 21st birthday, holding a clear plastic cup containing a purple liquid. She denied having false identification, but a DABT officer's search turned some up. Also in the early hours of October 19, 1991, DABT officers arrested Christopher Wisniewski, an apparently intoxicated 16-year-old, whose father, also apparently intoxicated, only reluctantly admitted their relationship. Christopher, who was not asked what or whose identification, if any, he had used to get in, had a valid Florida driver's license on his person. Bar Tender Arrested The personnel that respondent assigned to check patrons identification as they entered did not take their stations until five o'clock evenings, an hour after opening. Aware of this, the DABT dispatched Randy Gordon (a stout, older- looking 19-year-old, who has succeeded two out of three times in efforts of this kind at some ten other establishments) to Congo Craig's. He readily gained admission between four and half past on the afternoon of November 8, 1991, without being asked for identification. The first customer of the evening, Randy asked Eric Frauman (who had agreed at the last minute to fill in for another bartender, and who ordinarily worked evenings when the bouncers, not the bartenders, are responsible for checking customers' identification) for a hamburger and a beer. Although he had been told to "card" everybody, Mr. Frauman neglected to ask young Mr. Gordon for identification. The second customer that evening was Ernest Wilson, the special DABT agent responsible for paying five dollars an hour for Mr. Gordon's services. Mr. Wilson took the beer, and Mr. Gordon, who paid for both, got the hamburger, which he described as very good. Mr. Frauman, a graduate student hoping to work as an educational counselor, was arrested and eventually prosecuted criminally. Precautions Taken Respondent is qualified as a responsible vendor, and was so certified during the time DABT made such certifications. All of the 18 employees respondent relies on for "security," those checking patrons' ages at night as well as the daytime bartenders and servers, are current with regard to the courses, tests and update meetings the responsible vendor program requires. Respondent's managers are current on requirements for managers. At weekly meetings of the managers, underage drinking was a regular topic. A book depicting driver's licenses in various jurisdictions is kept on the premises, and respondent's employees who testified seemed knowledgeable on the subject. Employees responsible for checking patrons' ages are told to require, at least of anybody who looks younger than 45, a driver's license, military identification or a passport. Several repeat customers testified that they had invariably been "carded." Although Congo Craig's can lawfully accommodate no more than 925 persons at any one time, the crowd "turns over" as the night wears on. From 35,000 to 45,000 patrons were on the premises between September 7, 1991, and November 18, 1991. During this period, DABT officers made several visits on which they failed to find a single patron under the age of 21. According to Kim Ehrich, who once worked at Congo Craig's, but now works elsewhere, Congo Craig's is probably the "strictest" bar in Gainesville, and does a more thorough job checking identification than the three other bars where she has worked in Gainesville. Willful Breach A week or so before the party at Congo Craig's on October 3, 1991, Charlotte Olsen, then social chairperson for the Phi Sigma Sigma sorority, told somebody at Congo Craig's that some of the party-goers would be under 21 years of age. She offered the sorority's wrist bands to demarcate those old enough to drink legally, but Congo Craig's used its own instead. Mr. Cinque was aware that underaged persons were expected to attend the party scheduled for the second and third floors, and decided to allow it, despite the consent agreement, in order to preserve "good will." About half of the 50 to 60 people at the party were under 21 years of age. He added staff, he testified, in an effort to stymie drinking by underaged attendees. This effort proved dramatically unsuccessful. Past Problems DABT established (in aggravation of penalty only) that respondent has a long history of problems of the kind proven in this case, dating to when respondent's father owned the establishment. When Mr. Cinque worked as a manager, before he became the owner, DABT issued some ten orders to show cause alleging beverage law violations, most of which respondent admitted. Since the younger Mr. Cinque assumed ownership, DABT has filed eight additional orders to show cause, the first seven of which were consolidated and disposed of by the consent agreement accepted by DABT on September 6, 1991.
Recommendation It is, accordingly, RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco suspend respondent's license for ten (10) days. DONE and ENTERED this 10th day of December, 1992, at Tallahassee, Florida. ROBERT T. BENTON, II 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 11th day of December 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact Nos. 1-21, 24, 25, 28, 29, 31, 34- 46, 50, 53-56 and 58 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 22 and 23, it is not that easy to make out the eye color of the woman depicted on the license. With respect to petitioner's proposed finding of fact No. 26, Ms. Chiappara did not testify at hearing; it is not clear what sworn statement is meant. With respect to petitioner's proposed finding of fact No. 27, the evidence suggested that she used the counterfeit license to gain entry. With respect to petitioner's proposed findings of fact Nos. 30 and 33, the method of entry was not proven, but there was speculation. With respect to petitioner's proposed finding of fact No. 32, she was drinking a purple beverage. With respect to petitioner's proposed finding of fact No. 47, she so testified. Petitioner's proposed findings of fact Nos. 48, 49 and 59 are properly proposed conclusions of law. Petitioner's proposed findings of fact No. 51 and 52 have been rejected as not established by the weight of the evidence. With respect to petitioner's proposed finding of fact No. 57, the number of allegations is immaterial. Respondent's proposed findings of fact Nos. 1-10 and 14-17 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, Mr. Frauman did not usually work the day shift. With respect to respondent's proposed finding of fact No. 12, time constraints do not account for the failure to honor the consent order. Respondent's proposed finding of fact No. 13 is properly a proposed conclusion of law. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, Florida 32399-1007 Sy Chadroff, Esquire 2700 S. W. 37th Avenue Miami, Florida 33133-2728 Donald D. Conn General Counsel The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue By Notice to Show Cause filed December 19, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the alcoholic beverage license number 60-0883 issued to James R. Rogers, trading as Ray's Tavern. As grounds therefor it is alleged that Rogers, in order to secure a license to sell alcoholic beverages, made false written statements to the agents of Respondent in violation of 537.06 and 561.29 F.S. One witness was called by Petitioner and four exhibits were admitted into evidence.
Findings Of Fact On December 21, 1977, notice of the hearing scheduled to commence on January 12, 1978 at 1457 N. Military Trail, West Palm Beach, Florida was served on Respondent by a beverage agent of Petitioner. (Exhibit 1) In answer to question 13 on the application for Transfer of Alcoholic Beverage License, which asked "Has a license covering the place described in this application or any other place in which any of' the above named persons were at the time interested ever been revoked by the Director?" Respondent answered "No". (Exhibit 2). By Order of the Director of the Division of Beverages dated September 30, 1955 (Exhibit 3) the alcoholic beverage license issued to James R. Rogers, Curley's Tavern, aka Ray's Tavern was revoked for maintaining gambling paraphernalia and permitting gambling on the licensed premises.
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Bulk, Inc. held a 4-COP SRX alcoholic beverage license number 39-3188, issued by the petitioner, for the premises known as Spanky's located at 2556 East Fowler Avenue, Tampa, Florida. At some time prior to 9:00 PM on July 14, 1988, Laura Steuer, born, July 29, 1969, "in the company of her friend Lynn Arnold, born August 21, 1968, entered the licensed premises without being asked by any employee of the Respondent for proof of age. The two girls had gone in for dinner and after eating, "hung out" there until nickel beer started at 10:00 PM. The girls had come in early to eat and to relax at the end of exams because they knew they would be served, having been served there before. On this evening, after dinner, they were asked by the waitress if they wanted anything and when they asked for beer, were served a pitcher, which they consumed. Ms. Steuer has drunk enough beer to know that the substance she was served that night was beer. They were starting on their second pitcher at $4.00 per pitcher, when they were arrested. At that point in time, she had nothing in front of her because, when she heard the police were there, she dumped it on the floor. Neither girl was asked for identification or proof of age at any time that evening by any employee of the facility. Ms. Steuer had her legitimate driver's license and her University ID card in her possession at the time, and Ms. Arnold had her legitimate student ID and driver's license with her. Ms. Steuer knew she was not old enough to legally drink but did it anyway. Ms. Arnold confirms Ms. Steuer's story, adding that it was her idea to come there because she had been there before and knew she would not be "carded." She indicates it was she who got the first pitcher of beer from the bartender. She was not asked for identification either at that time or when they bought the second pitcher from the waitress who came to the table. In her opinion, at the time of the arrest, there were less than 100 patrons in the establishment. Stephanie Sanchez also was at Spanky's that night, arriving sometime between 7:00 and 8:00 PM. When she arrived, there was a line at the door waiting to be checked by the bouncer but neither she nor the friends she was with, all of whom were under 21, were asked for proof of age. When they got inside, they joined some other people whom she knew to be over 21 and ate with them. Ms. Sanchez had nothing to drink, but when she was later approached by the police during the sweep, she had just been given a cup of beer purchased for her by someone else from a bar in the back. By this time, it was after 10:00 PM. Jennifer Reagan arrived at Spanky's at about 9:50 PM on the night in question to meet some friends. She had never been there before and knew nothing about it but was going at the suggestion of her friends. When she arrived with her male friend, there was a line of people outside waiting to be checked by the bouncer. Ms. Reagan is not yet 21, so her friend got someone else's ID for her with which she was able to gain entrance even though it was looked at by the bouncer at the door. The picture on the card, in her opinion, looked somewhat like her showing the same hair color and eye color and the age displayed was not 28 or 29 but 21, much closer to her own age. When inside, Ms. Reagan, who does not like beer or liquor, on advice of someone else ordered a "Long Island Iced Tea" at the bar where the bartender did not check her identification. Since she had tasted alcohol before, she could tell that the drink she got definitely had that substance in it. Because the Department had received complaints of sales of alcoholic beverages to underage patrons, Ms. Warner and several other Department investigators, in conjunction with Sheriff's Deputies from Hillsborough County, were undercover in Spanky's on the night of July 14, 1988. She went in about 9:30 PM and described the place as a large facility with loud music, a large bar with people drinking out front and a smaller bar in the back. When she went in, there were two men checking identification at the door who seemed to be doing a thorough job. However, for one fifteen minute period, when one of them left the door, it did not seem to her that anyone was checking. At 10:15 PM, when by prearrangement, the uniformed police arrived, she and her partner went to two booths where they felt underage patrons were drinking and asked for ID. The group, which included Steuer, Arnold, and Reagan, was all underage. When she checked the patrons' identifications, she found only one false ID card. There were less than 100 people in the facility at the time of the raid. While she was in the bar, before the raid, she was approached by Greg Hawkins, an officer of Bulk, Inc., who said he knew her to be a policewoman and was sure they wouldn't find anyone underage on the premises because they were checking. He was wrong. Mr. Bean, Vice President of Bulk, Inc., and manager of Spanky's was on duty there the night in question. He indicated the place has a standing policy which stated that no one under 21 could consume alcoholic beverages on the premises. In fact, he has a written slogan posted in the bar which reads, "When in doubt, keep them out." Mr. Bean states he has tried on at least 7 occasions to set up classes with the Department agents for his employees to train them in what is required to operate properly. He got a book of sample driver's licenses and gave copies to all the doormen and waitresses so that they could effectively check proof of age. There was a special light placed at the entrance to show up altered identification cards. On Thursday nights, an active time, there are 5 people assigned to the door to check ID's and barkeeps and waitresses are also instructed to check. On the night of July 14, 1988, there were 4 people on the door checking who recognized and checked the beverage agents. In Bean's opinion, people who appear to be under age should be checked before 9:00 PM by a waitress or bartender if they ask for an alcoholic beverage. In addition to all the above, management has devised a procedure to avoid the problem of underage people coming in before 9:00 and staying until after 9:00. At 9:00 PM the glassware changes from glass to plastic and in order to be served alcohol, one must have the plastic cup. To get the plastic cup, one must prove he is over 21. Unfortunately, this scheme has not always worked, but he believed that on July 14, 1988, everyone who was drinking in Spanky's was legal. In his opinion, his employees did everything they could to keep underage people out, and he, as manager has done everything he could do to train and convince his people of the need to enforce the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner enter a Final Order in this case finding Respondent guilty of Counts (3), (4), and (9) of the Notice to Show Cause herein and not guilty of the others, that Respondent's alcoholic beverage license be suspended for 90 days, and that it be assessed a civil penalty of $3,000.00. RECOMMENDED this 22nd day of February, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 23rd day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-5244 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner herein. By the Petitioner: 1. Accepted and Incorporated herein 2.-5. Accepted and Incorporated herein 6.-10. Accepted and Incorporated herein Irrelevant Accepted and incorporated herein Not proven except for the last sentence which is accepted. COPIES FURNISHED: Harry Hooper, Esquire Van B. Poole, Secretary Deputy General Counsel Department of Business Department of Business Regulation Regulation 725 South Bronough Street 725 S. Bronough St. Tallahassee, Florida 32399-1007 Tallahassee, Florida 32399-1000 Wayne S. Timmerman, Esquire 308 South Fielding Avenue Tampa, Florida 33606 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 725 S. Bronough Street Tallahassee, Florida 32399-1000
