The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative action, as amended, and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times material herein, respondent, Qasem Shahinda d/b/a Ismael and Son Supermarket, held alcoholic beverage license number 23-10720, series 2- APS, for the premises located at 14528 Lincoln Boulevard, Miami, Florida. At all times material hereto, respondent was authorized to receive U.S.D.A. food stamps in exchange for food items, and had received training prior to such authorization from the United States Department of Agriculture as to, inter alia, items of merchandise which could or could not be exchanged for food stamps. In December 1992, U.S.D.A. Investigator William Bethel (Bethel) and U.S.D.A. Investigative Aide Mary Pierce (Pierce) commenced an investigation of the licensed premises to ascertain whether nor not persons associated with the premises were complying with State and Federal law regarding the acceptance of U.S.D.A. food stamps. In each instance, Bethel accompanied Pierce to the premises and provided her with the U.S.D.A. food stamps used in the investigation. On December 10, 1992, Pierce entered the license premises with $30.00 in U.S.D.A. food stamps. At or about 1:20 p.m. that date, a female clerk on the premises accepted food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one pack of Winston cigarettes, one pack of Newport cigarettes, and one Massengill disposable douche. On April 14, 1993, Pierce entered the licensed premises with $65.00 in U.S.D.A. food stamps. At or about 12:30 p.m., another female clerk accepted $32.79 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer and one pack of Newport cigarettes. 1/ On April 14, 1993, Investigator Bethel entered the licensed premises with $45.00 in U.S.D.A. food stamps in furtherance of the above described investigation. At or about 12:35 p.m., the same female clerk accepted $38.97 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one box of Cheer detergent, and one box of Clorox dry bleach. 2/ On April 28, 1993, Pierce entered the licensed premises with $55.00 in U.S.D.A. food stamps in furtherance of the above described investigation. At or about 11:40 a.m., the same female clerk she had encountered on April 14, 1993, accepted $53.85 worth of food stamps in exchange for merchandise which, in addition to eligible items, included the following ineligible items: a six-pack of Old Milwaukee Beer, one pack of Winston cigarettes, one pack of Newport cigarettes, one roll of Reynolds Foil, and one box of Hefty kitchen bags. 3/ Pierce returned to the premises on April 28, 1993, with $65.00 in U.S.D.A. food stamps. At or about 11:55 a.m., Pierce met with the same female clerk and sold her the $65.00 in U.S.D.A. food stamps for $25.00 in United States currency. 4/ On July 19, 1993, Pierce entered the licensed premises with $140 in U.S.D.A. food stamps in furtherance of the above described investigation. At or about 12:45 p.m., a male clerk accepted food stamps in exchange for merchandise which, in addition to eligible items, included an ineligible pack of Winston cigarettes. Moreover, the same male clerk purchased from Pierce $130.00 in U.S.D.A. food stamps (two full $65.00 books) for $70.00 in United States currency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the aforesaid violations and assessing a $2,000.00 civil penalty. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of March 1995. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March 1995.
Findings Of Fact Respondent, Lopez Grocery, Inc., is the holder of alcoholic beverage license number 15-02358, series 2APS, for the premises at 214 Emerson Drive, N.W., Palm Bay, Brevard County, Florida. Serafin Lopez and his wife, Elena, are President and Vice-President, respectively and are sole owners of the business. On November 3, 1991, the Palm Bay Police Department was conducting surveillance of Lopez Grocery as a result of reports that it was selling alcoholic beverages to underage persons. Cpl. Kraynick, a seven year law enforcement officer, was assigned to the surveillance on the 3:00 p.m. to 1:00 a.m. shift. Cpl. Kraynick was positioned about 40 feet outside the store, at the edge of the woods, with a clear view of the cash register and clerk inside the store. The store is at the end corner of a small strip shopping center. The other stores were vacant at the relevant time. At approximately 7:00 p.m., the parking lot was empty and the store was well lit from within. Cpl. Kraynick observed a brown pick-up truck pull up to the store. A white juvenile female went in, brought a six-pack of beer to the counter, got cigarettes and exited. She went to the passenger side of the truck to speak with the passenger and reentered the store where she picked up several more loose beers and paid for her purchases. The clerk bagged the beer and made change without requesting identification. The juvenile left the store with the beer. Cpl. Kraynick's original instructions had been to simply conduct the surveillance and notify his partners to make a traffic stop and arrest. When he learned that the partners were called out, he pursued the brown pick-up in his vehicle, and made the stop about 1/4 mile from the store. As soon as he activated his lights, the pick-up pulled over. He obtained a driver's license from the driver, the same person who had purchased the beer, and he confirmed that she was sixteen. Cpl. Kraynick confiscated the beer, still cold, from behind the driver's seat. The passenger had stashed an opened beer in her purse, where it had spilled, leaving an empty bottle. After releasing the girls to their parents, Cpl. Kraynick returned to Lopez Grocery. When he returned, he found Mr. Lopez, who explained that his wife had gone to buy a lottery ticket. She returned around 7:45 p.m. and was arrested for selling alcoholic beverages to an underage person. At the hearing, Angela Theresa Valente, the girl who purchased the beer, unequivocally identified Ms. Lopez as the clerk who made the sale. At no time was she asked her age or was asked for identification by Ms. Lopez. Angela was 16 at the time of the sale; she was born on December 28, 1974. Her appearance is that of a teenager. Ms. Lopez denies that she made the sale and claims that she was away purchasing lottery tickets when the sale was made. She and her husband are the only employees. Ms. Lopez also denies that her store sells Coors Light beer, the loose beer confiscated by Cpl. Kraynick. The grocery does sell Michelob Light, the six- pack that was confiscated. Cpl. Kraynick observed Coors Light singles in the grocery cooler the night that the arrests were made. Ms. Lopez' testimony was substantially less credible than that of Cpl. Kraynick and Angela Valente, both of whom positively identified her as the person who made the sale. Ms. Lopez claimed to have witnesses who could establish that she was not at the store around 7:00 p.m. when the sale was made, but she did not produce those witnesses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondents' alcoholic beverage license # 15-02358, series 2-APS be suspended for 30 days and that a civil penalty of $500 be imposed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of September 1992. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September 1992. COPIES FURNISHED: Nancy C. Waller, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Elena and Serafin Lopez 214 Emerson Drive Palm Bay, Florida 32907 Richard W. Scully, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald D. Conn, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue Whether respondent's beverage license should be suspended or revoked, or civil penalty assessed, for alleged violation of Section 562.12, Florida Statutes, pursuant to Section 561.29, Florida Statutes, as set forth in the Notice to Show Cause issued by Petitioner.
Findings Of Fact Respondent Earlene Chandler of Quincy, Florida, is the owner of Chandler's Grocery located in Gadsden County, which holds a beverage license for the sale of packaged beer and wine under Class 2-APS, issued by the Petitioner (Petitioner's Exhibit 1). On March 11, 1977, Frederick Miller, a beverage officer employed by Petitioner, and a paid informer of Petitioner, Clinton Harrison, A/K/A Guy Williams, drove to Respondent's place of business and parked approximately 300 to 400 yards from the licensed premises. Miller searched Harrison and determined that he did not then possess any alcoholic beverages. While Miller stood by the side of the road, Harrison drove the car to Respondent's grocery store and entered the same. He returned to where Miller stood in approximately, 10-15 minutes and turned over to Miller a partially-filled Coca Cola bottle containing a mixture of vodka and grapefruit juice. Miller had watched Harrison enter and leave from the front door of the store; however, he could not recall if anyone entered the store while Harrison was there. Miller was able to determine that vodka was in the bottle by it's smell. He and Harrison placed their initials on a label which was then affixed to the bottle, and Miller then placed the bottle in the evidence room vault at his agency in Tallahassee until the date of hearing. Harrison told Miller that Willy Chandler had sold him a drink of vodka for one dollar (testimony of Miller, Petitioner's Exhibit 2). On March 21, 1977, Miller obtained search warrants to search the residence of Respondent, which is located behind the grocery store. On March 27, 1977, the warrant was served on the Respondent and a search of the residence revealed the presence of two sealed quart bottles and one unsealed, partially filled quart bottle labeled Taaka Vodka in a kitchen cabinet. These bottles were tagged and initialed by Miller and placed in his agency's evidence vault until the date of hearing. At the time the search was made, the Respondent stated that the vodka belonged to her husband (testimony of Miller, Petitioner's (composite Exhibit 3). Although the informer Harrison testified at the hearing, his version of what transpired at Chandler's Grocery on March 11th, 1977, is in conflict with the testimony of Respondent, her husband Willie Chandler, and that of Phillip N. West, a customer in the store at the time in question. Harrison testified that he asked Willie Chandler several times for a "dollar shot", but that Chandler refused, stating that he either did not have anything or did not sell intoxicating beverages Harrison further testified that finally Chandler went outside the store and returned with a glass containing some vodka which he, Harrison, put in a Coke bottle and mixed with fruit juice after paying one dollar for the vodka and twenty-five cents for the juice. Harrison conceded that he had had a "beer or two" before he entered the grocery. He also testified that only Chandler, the Respondents and a child were present in the store at the time. Harrison's credibility was attacked by the Respondent at the hearing by a showing that he has a bad reputation for truth and veracity in the community. (Testimony of Harrison, W. Chandler, Simmons). The evidence establishes that the following took place when Harrison entered Chandler's Grocery Harrison asked Willie Chandler for a half pint of whiskey and Chandler told him that he did not sell whiskey. There were a number of children and several adults in the store. Harrison, who was somewhat "unstable" and gave the appearance of being under the influence of alcohol, was annoying the children in the store and issuing mild threats against them. He continued to ask Chandler for whiskey and finally the latter told him that he would give him some. Chandler and Harrison then left the premises and, while Harrison stood at a gate in full view of the occupants of the store who observed him continuously, Chandler went to his residence and brought back some vodka in a glass which he handed to Harrison at the gate Harrison reentered the store, purchased a Coca Cola bottle for five cents and some grapefruit juice for twenty-five cents, which he mixed in the bottle and, after taking a drink of same, left the premises. (Testimony of W. Chandler, Respondent, West, Petitioner's Exhibit 4).
Recommendation That the charge against Respondent Earlene Chandler be dismissed. DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Michael L. Allen, Esquire and Michael Edwards, Esquire 112 East Washington Street Quincy, Florida 32351
Findings Of Fact At all times relevant hereto, respondent, Jose Luis Rodriguez, operated a small grocery store known as Comodoro Grocery at 1412 Southwest Third Street, Miami, Florida. The establishment has been issued license number 23-01096-2APS by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) . The license authorizes the package sale of beer and wine. Around 6:00 p.m. on December 30, 1987 Division investigators Santana and Garcia visited respondent's licensed premises to ascertain whether narcotics were being sold. The visit was prompted by a complaint of unknown origin. 1/ After observing no sales on the premises, the two investigators each purchased a beer and left the establishment. They returned a few minutes later. While purchasing a second beer, they observed a young black male whom they believed to be a minor take a twelve ounce can of Budweiser beer out of the store refrigerator and carry it to the check-out counter. Respondent was working the cash register but did not ask the customer for an identification card. The customer handed respondent a one dollar bill, received some small change and left the premises with the beer in a paper bag. Investigator Santana followed the customer outside the store, stopped him, requested some form of identification and then confiscated the beer. In response to Santana's request, the customer produced a "restricted driver's license." According to Santana, the license carried the name "Julio Vargas" and reflected a birth date showing that Vargas was a minor. However, this testimony is based upon hearsay declarations and does not supplement or explain other competent evidence of record. Thereafter, Santana and Garcia arrested both the customer and respondent. The customer was cited for being a minor in possession of an alcoholic beverage while respondent was charged with unlawfully selling an alcoholic beverage to a minor. The criminal charge against respondent was later dismissed in county court while the outcome of the case against the customer is not of record. The customer (a/k/a Vargas) was not present at final hearing. Although the arresting officers contended that the customer was the same person whose name appeared on the license, and that he was a minor at the time he was arrested, there is no independent, competent proof of the customer's identity and actual age, such as the testimony of the customer or a copy of the driver's license, birth certificate or other identification. Respondent conceded that the customer in question carried a beer out of the store. However, he contended the customer was with his uncle who had already paid for the beer, that no money was taken from the customer and the nephew was simply retrieving already purchased merchandise. To the extent this version of the events conflicts with the eyewitness testimony of the investigators, it is rejected as not being credible. According to respondent's grandson, who was also working behind the counter that day, the customer paid for the beer but with money furnished by his uncle. However, no independent proof of this assertion was submitted. Respondent has operated his store for some fourteen years. There is no evidence of any prior sales of alcoholic beverages to minors or disciplinary action taken against his license for any violation of state law or agency rules. Respondent intended to present the customer as a witness at final hearing. However, when respondent arrived at the witness' residence on May 10, 1988 to transport him to the hearing, the customer was not there. The witness was not served with a subpoena by either party.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the charge against respondent. DONE AND ORDERED this 3rd day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 June, 1987
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the administration action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Kamel Supermarket, Inc., held alcoholic beverage license number 23-01444, series 2 APS, for the business known as Kamel Supermarket (the "premises"), located at 3601 Grand Avenue, Miami, Dade County, Florida. Jamal E. Rahma was the sole stockholder and officer of Respondent. In May 1995, U.S.D.A. Special Agent John Karlovitch, now a Deputy U.S. Marshall, began an undercover investigation of the premises. Such investigation was predicated on information received which indicated that persons associated with Kamel Supermarket were purchasing U.S.D.A. Food Coupons for cash and at less than their face value. On May 17, 1995, Special Agent Karlovitch gave Bernadette Hargrett, an Investigative Operative operating undercover, four U.S.D.A. Food Coupon Books having an aggregate face value of $200, for the purpose of attempting to sell such books to employees of the licensed premises. Ms. Hargrett entered the licensed premises and met with an unknown male, who appeared to be an employee, and sold him the four coupon books for $150 in cash. On May 31, 1995, Special Agent Karlovitch gave Ms. Hargrett U.S.D.A. Food Coupons having an aggregate face value of $400, for the purpose of attempting to sell such coupons to employees of the licensed premises. Ms. Hargrett entered the licensed premises and met with a different male than on the first occasion, who also appeared to be an employee, and sold him the food coupons for $300 in cash. On August 9, 1995, Special Agent Karlovitch gave Ms. Hargrett U.S.D.A. Food Coupons having an aggregate face value of $800, for the purpose of attempting to sell such coupons to employees of the licensed premises. Ms. Hargrett entered the licensed premises, met with the same unidentified male as on May 31, 1995, and sold him the food coupons for $600 in cash. On September 7, 1995, Special Agent Karlovitch gave Ms. Hargrett U.S.D.A. Food Coupons having an aggregate face value of $1,000, for the purpose of attempting to sell such coupons to employees of the licensed premises. Ms. Hargrett entered the licensed premises, met with Jamal E. Rahma, and, following some discussion, sold him the food coupons for $750 in cash. Pertinent to Mr. Rahma's knowledge of the impropriety of his conduct, it is observed that before he would purchase the coupons, Mr. Rahma took Ms. Hargrett outside the store and into his car to discuss the transaction. Also, pertinent to Mr. Rahma's knowledge of the impropriety of his conduct, as well as the appropriate penalty, the proof demonstrated that while Kamel Supermarket was at one time authorized to accept food coupons, its authorization was revoked in 1993 for similar misconduct, and that Kamel has previously been the subject of two previous disciplinary actions by Petitioner for similar misconduct. Those actions, one in 1993 and one in 1994, were resolved by consent order and the payment of a civil penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered revoking Respondent's alcoholic beverage license. DONE AND ORDERED this 29th day of October, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1997. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Jamal Rahma c/o Kamel Supermarket 3601 Grand Avenue Miami, Florida 33129 Major Jorge Herrera Augusta Building, Suite 100 8685 Northwest 53rd Terrace Miami, Florida 33166 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
Findings Of Fact Applicant, Ester Woods Vickery, applied for a beverage license for the premises known as "Vickery's Grocery" located one mile south of Bear Creek on U.S. Highway 231, Bay County, Florida. Said application was denied by the Petitioner for the following reason: "Husband of applicant who has a direct or indirect interest In the business has been convicted of felonies in the past 15 years." Respondent requested a hearing contending that she is the sole owner of the business and that her husband has no direct or indirect interest in the business and is merely one of her paid employees. The Petitioner contends that the business was bought using funds from an account of Mrs. Vickery, the money of which was obtained from the sale of property owned jointly by Mr. and Mrs. Vickery. The Petitioner further contends that it is a man's obligation to support his wife and that Mr. Vickery's sole support is his work with Vickery's Grocery; that the conviction of Mr. Vickery of felonies during the past 15 years which involved the sale of "moonshine liquors" makes it mandatory under Section 561.15 and Section 561.17, Florida Statutes, that the application for a beverage license be denied. It was admitted by the Respondent that Esther Woods Vickery is married to a person who has been convicted of felonies in the past 15 years. It was also admitted by the Respondent that Mr. and Mrs. Vickery owned jointly property from which timber was cut and sold and the profit was deposited in a savings account in the name of Mrs. Vickery. The savings account from which money was drawn to purchase Vickery's Grocery was in Mrs. Vickery's name alone. Said savings account was established at some time before the purchase of Vickery's Grocery. The business was purchased from Mr. Hickman, the owner of the premises, who testified that he had leased the premises to Mrs. Vickery; that he had made all negotiations concerning the lease and the selling of the business with Mrs. Vickery and that he had not dealt in any way with Mr. Vickery in regard to the sale of the property. Mr. Hickman lives near the grocery business and testified that Mrs. Vickery runs the business herself. Mr. Vickery, the husband of the Respondent, is shown on the payroll to be on the payroll of Mrs. Vickery and draws a specified salary payment for work in the business which involves the sale of gas and oil and well as groceries. The Hearing Officer further finds: That the Respondent, Esther Woods Vickery, is the sole owner of the establishment known as "Vickery's Grocery" and that the husband of Mrs. Vickery is an employee of the establishment and has no direct or indirect interest in the business.
Recommendation Approve the application for a beverage license of Esther Woods Vickery for the business premises "Vickery's Grocery", providing she meets all other requirements than those which are the subject of the disapproval of her application and of this hearing. DONE and ORDERED this 7th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Staff Attorney Division of Beverage The Johns Building Tallahassee, Florida 32304 Franklin R. Harrison, Esquire 406 Magnolia Avenue Panama City, Florida 32401 Charles Nuzum, Director Division of Beverage Department of Business Regulation The Johns Building Tallahassee, Florida 32304
Findings Of Fact At all times pertinent to this proceeding, Respondent, Village Zoo, Inc., operated a restaurant and lounge under License 4-COP 16-839SR at 900 Sunrise Lane, Fort Lauderdale, Florida. This address is approximately one block off State Highway A1A, adjacent to the beach at Fort Lauderdale and is in an area heavily populated by students and youths at various times of the year-- primarily during college vacation periods. On August 18, 1982, Beverage Officer Thomas P. Wheeler, in the company of Beverage Officer Beverly Jenkins, issued the Village Zoo a violation notice for storing beer off the physical premises of the license holder. The beer in question was being stored in a separate building located at least 15 feet across an alley from the Village Zoo lounge. Respondent did not have the permit required for off-premises storage. Wheeler was back in Respondent's lounge on November 5, 1982, in an undercover capacity. At that time, he entered through the front door, which was manned by a doorman backed up by an off-duty policeman on the sidewalk outside. The doorman was collecting a one dollar entrance fee from each patron, but did not ask Wheeler or anyone else in Wheeler's hearing for any identification or proof of age. In April, 1982, Beverage Officer Jenkins, in a prior visit, had in writing advised Mr. James Doud, purportedly an owner or manager of the Village Zoo, that it was a violation of Florida Statutes to serve alcoholic beverages to minors and that they should seek identification or proof of age from customers. To be sure, Respondent does have an individual at the door and an off-duty policeman outside whose duties are ostensibly to check this. However, neither Officer Wheeler nor any of the other agents saw any checking at the door by the doorman or the off-duty policeman on the night of November 5, 1982, although, according to Wheeler, the people in front of him going in were questionable enough, from what he saw of their profiles, that they should have been checked. Mr. Hunt, sole stockholder and officer of Respondent corporation, admits that while he has told his managers to check identifications and proof of age, to have someone on the door to check this, to have the waitresses check, and to emphasize this in their staff meetings, he has no written instructions out on this. At one time, there was a manual with all requirements in it, but he does not know where it is now. That same evening, William E. Dias, age 18, born August 31, 1965, entered the Village Zoo by entering through the main entrance with some friends. No one asked him or his friends for their identifications or proof of age at the door when they entered, or later when he ordered and was served a beer at the bar on the first floor. When he ordered his beer, a Miller's, the area was crowded, and people were standing three deep at the bar. After he got his beer, he went out on the balcony, where he was taken into custody by a Division of Alcoholic Beverages and Tobacco agent. Somewhat later, on the afternoon of December 21, 1982, Beverage Agent D'Ambrosio, in the company of Beverage Agent Jenkins, came back to the Village Zoo to reinspect the premises as a follow-up to the August 18, 1982, visit and to collect some records that had previously been requested. On this visit, they spoke with David Doud, who identified himself as a cook, and Mrs. Joni Hayworth, who identified herself as a manager. This inspection was also to determine if any other corporations had an interest in the business. During this inspection, the agents asked for the business records, including the alcoholic beverage invoices required by statute to be kept on the premises for three years. In response, D'Ambrosio and Jenkins were given some food purchase records and some canceled checks, but not the alcoholic beverage records requested. Mr. Doud indicated no other records were there, but were kept in the accountant's office in Pompano Beach. On the basis of the inadequacy of the records presented on December 21, 1982, Agent D'Ambrosio, on that date, issued a written notice which he handed to Doud and Hayworth, directing them to make all records pertaining to the business, including payroll records, canceled checks, general ledgers, sales journals and cash disbursements from the period January 1, 1982, to that date available to Division of Alcoholic Beverages and Tobacco personnel by noon on December 28, 1982. Notwithstanding Mr. Hunt's testimony that the records were in the Bond Building immediately across the alley from thee Village Zoo, the fact remains they were not made available to the beverage officers when requested and were not presented as directed on December 28, 1982. During that same visit on December 21, 1982, D'Ambrosio and Jenkins also looked throughout the facility to determine how many seats for dining were available. The license held by Respondent requires 150 seats for dining purposes be maintained on the premises. This does not mean that all 150 seats must be set up at tables for immediate use. However, the facility must maintain 150 seats available for use, if needed, on the premises, though a portion of that number may be kept aside in on-premises storage. In this instance, the search of the premises revealed only 64 total dining chairs. This same visit, on December 21, 1982, also revealed that Respondent was still storing alcoholic beverages off premises in the building across the alley without a permit to do so. At this time, Mr. Doud indicated they had no other place to store it. The building where the beer is kept is owned by Mr. Hunt, who leases it to the Respondent, Village Zoo, Inc., the corporation of which he is sole officer, director and shareholder. At one time, an off- premises permit had been issued for this building, but this was for a different license; and Doud was told, at the first visit by the beverage agents, that the prior permit was no good. On January 25, 1983, D'Ambrosio and Jenkins returned to the Village Zoo for an inspection based on an application by Respondent to make a Mr. Sumash a corporate officer. During this visit, Jenkins did another seat count and determined there were still only 64 seats available in the entire place for dining. This count included all seats except bar stools. As to the order of the health department, during a routine quarterly inspection of Respondent's facility on December 22, 1982, Warren S. Abrahams, a sanitarian with the Broward County Health Department, observed major violations of the sanitary code, such as roach infestation, toxic cleaners on the food preparation surfaces, unsafe and unsanitary cabinets, dirty underwear in the beer cooler, and the like. In addition, the permit for the current year was not displayed as required. Violation notices for the above were receipted for by Mr. Doud. When Mr. Abrahams came back for a follow-up inspection on January 6, 1983, he found no real improvement in the prior existing conditions. The roaches were still there, and the food temperature was improper. As a result, he issued a closure notice in which the Village Zoo was ordered not to reopen the food establishment until authorized by the health authority. When this written notice was discussed with Mr. Doud, he became irate and stated he would not close. Doud then sent in Mr. Mitchell, the day manager, who receipted for the notice. Mr. Abrahams returned at 3:30 p.m. on January 6, 1983, and found that notwithstanding the closure order, the Respondent's restaurant had not closed. He stood outside the door and observed sales of food and beverages. When he came back at 9:00 that night, the same activity was going on, as it was the following day, January 7, 1983, when he returned with another sanitarian, Mr. Mores. At this time, they found food and beverage sales going on, and the previously cited unsanitary conditions still existed.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's license be suspended for thirty (30) days and that it pay a civil fine of $2,000. RECOMMENDED this 6th day of January, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1984. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Raymond A. Doumar, Esquire 1177 Southeast Third Avenue Fort Lauderdale, Florida 33316 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations alleged in the Administrative Action, and, if so, what disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a restaurant, Dinosaur's Café and Sports Bar, located in Boynton Beach, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a Special Restaurant License (license number 60-11570 4COP SRX) authorizing it to sell alcoholic beverages on the premises of Dinosaur's Café and Sports Bar. On September 28, 1999, DABT Special Agent Jennifer DeGidio conducted an inspection of the premises of Dinosaur's Café and Sports Bar. Her inspection revealed that the premises had available seating for less than 150 patrons and that there were no records on the premises regarding the purchase and sale of food, alcoholic beverages, and non-alcoholic beverages. At no time had DABT given Respondent written approval to maintain these records at a designated off-premises location. During her September 28, 1999, inspection, Special Agent DeGidio issued and served on Respondent notices advising Respondent that its failure to have seating for at least 150 patrons and to maintain food and beverage records on the premises for a minimum of three years from the date of sale was in violation of the law and that, if these violations were not remedied within 14 days, administrative charges would be brought against Respondent. Special Agent DiGidio returned to the premises of Dinosaur's Café and Sports Bar on October 12, 1999, to find that the noticed violations had not been corrected. There were still fewer than 150 seats for patrons, and Respondent was again unable to produce the required records on the premises. The Administrative Action that is the subject of the instant controversy was issued on November 16, 1999. As of that date, Respondent had failed to timely remit to DABT $16.75 in surcharge monies that Respondent owed DABT for alcoholic beverages it had sold at retail for on-premises consumption at Dinosaur's Café and Sports Bar.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that DABT enter a final order finding Respondent committed the violations alleged in the Administrative Action, and disciplining Respondent therefor by revoking its license "without prejudice to obtain any other type of license, but with prejudice to obtain the same type of special license for 5 years"; fining Respondent $1,000.00; and requiring Respondent to pay the $16.75 in surcharge monies it owes DABT, plus applicable penalties and interest. DONE AND ENTERED this 21st day of August, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 21st day of August, 2001.
