The Issue The issues in these cases are whether Respondent, Club Manhattan Bar and Grill, LLC, d/b/a Club Manhattan Bar and Grill (Respondent), committed the acts alleged in the administrative complaints dated September 13, 2010, and December 1, 2010, and, if so, what disciplinary action, if any, should be taken against Respondent.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating persons holding alcoholic beverage licenses. § 561.02, Fla. Stat. Respondent is licensed under the Florida beverage law by the Department. Respondent holds a 4COP/SRX special restaurant license issued by the Department with Alcoholic Beverage License No. 68-04347. Ms. Stokes is the licensee of record for Respondent. Consequently, Respondent is subject to the Department's regulatory jurisdiction. Respondent's series 4COP/SRX is a special restaurant license that permits it to sell beer, wine, and liquor for consumption on the licensed premises. Additionally, the licensee must satisfy seating and record-keeping requirements and must comply with 51 percent of its gross sales being food and non- alcoholic beverages. See § 561.20(2)(a)4., Fla. Stat. Respondent's restaurant is located in Sarasota County, Florida, and, pursuant to the 4COP/SRX license, must have seating and capability to serve 150 customers at any one time. On August 5, 2010, Special Agent Flynn conducted an inspection of Respondent's business premises. He conducted the inspection based on complaints made to the Department that Respondent was operating as an after-hours bar, rather than a restaurant. At this initial inspection, which occurred at 2:30 p.m. on August 5, 2010, Special Agent Flynn found the restaurant did not have any customers or menus. Further, he noticed that the premises had seating for only 92 people and a large dance floor. Further, he observed that the walls had signs advertising drink specials and late-night parties. Special Agent Flynn met Ms. Stokes, Respondent's manager and holder of the license, and informed her that the beverage license required that Respondent be able to serve 150 customers at one time. Also, Special Agent Flynn requested the required business records concerning the purchase of alcoholic beverage invoices from the distributors for a 60-day proceeding period. Ms. Stokes did not have the requested records on the premises. On August 19, 2010, Special Agent Flynn sent Ms. Stokes a written request, requesting alcoholic purchase invoices for a 60-day period before August 19, 2010. The request allowed Ms. Stokes 14 days to compile the records and to provide the records to the Department. The record here showed by clear and convincing evidence that Respondent did not produce records for the audit period. On September 8, 2010, at approximately 3:00 p.m., Special Agent Flynn returned to Respondent's premises. Again, he found that Respondent did not have the required seating number and ability to serve 150 customers at one time. Special Agent Flynn offered credible testimony that, during the September 8, 2010, inspection, he found Respondent had only 106 available seats. Further, consistent with his inspection on August 5, 2010, Special Agent Flynn observed facts showing that Respondent was a late-night bar, as opposed to a restaurant. The evidence showed that on September 8, 2010, Special Agent Flynn observed that Respondent did not have any customers, menus, and very little food in its small kitchen. Special Agent Flynn, however, did observe that Respondent continued to have its large dance floor, disc jockey booth, advertised drink specials, and posters advertising late-night parties. Clearly, Respondent was being operated as a bar, rather than a restaurant as required by its license. At the September 8, 2010, inspection, Special Agent Flynn again requested Respondent's business records that he had previously requested for the 60-day time period before August 19, 2010. Ms. Stokes provided a few invoices for purchases of food and non-alcoholic beverages. These invoices were dated after the August 19, 2010, date that Special Agent Flynn had requested and did not cover the requested 60 days prior to the August 19, 2010, request. These records included food and beverage purchases by Respondent from retailers, but did not contain any records concerning the points of sale at the restaurant. Ms. Nadeau, an auditor for the Department, offered credible testimony concerning the Department's request for business records from Respondent for the audit period of April 1, 2010, through July 31, 2010. On August 27, 2010, Ms. Nadeau set up an audit request for the period of April 1, 2010, through July 31, 2010, based on information provided by Special Agent Flynn. The Department provided Ms. Stokes with an audit engagement letter that requested business records. Ms. Nadeau testified that on September 10, 2010, she was contacted by Ms. Stokes. Ms. Stokes informed Ms. Nadeau that Ms. Stokes had become the owner of the restaurant in June 2010 and that she did not have the required records. Ms. Nadeau informed Ms. Stokes to provide all the records requested in the audit engagement letter that Ms. Stokes had and to try to obtain the prior records from the previous managing member of Respondent. On September 22, 2010, Ms. Stokes mailed to the Department records she claimed met the audit period. The records consisted of guest checks for July and August 2010, which only showed food purchases and no alcoholic beverage purchases. Further, Ms. Nadeau found that the records were not reliable, because the records contained numerous personal items not related to the restaurant, such as baby wipes, cotton swabs, and boxer shorts. Consequently, the record clearly and convincingly shows that Respondent failed to provide the required business records for the audit period of April 1, 2010, through July 31, 2010. Next, based on Respondent's failure to provide any reliable records, the Department was unable to conduct an audit of the business. Records provided by Respondent indicated that the only sales that occurred on the premises were for food. However, the testimony showed that Respondent's business included the sale of alcohol and marketed the sale of alcoholic beverages for late-night parties. Mr. Torres, the senior auditor for the Department, credibly testified that he conducted an independent review of Ms. Nadeau's initial audit findings. Mr. Torres, who has been employed with the Department for 27 years, reviewed the records provided by Respondent. He credibly testified that Respondent's guest checks were very questionable because they showed all food sales, but no alcohol, which was not consistent with Special Agent Flynn's observations. The evidence further showed that Ms. Stokes became the managing member of Respondent in June 2010. Ms. Stokes provided the Department with a change of corporate officers and named herself as registered agent, rather than apply for a new license. This distinction would later become important because, as explained by Ms. Nadeau, in the Department's eyes, there is a continuation of ownership. Under a continuation of ownership, Ms. Stokes was required to have business records for the time period before she became the managing member of Respondent. Ms. Stokes credibly testified that she did not have any records before June 20, 2010; thus, Respondent was unable to provide records for the audit period. Ms. Stokes candidly admitted that her restaurant had been struggling financially, which is why she had worked to catering special events to draw foot traffic.
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 revoking Respondent's alcoholic beverage license and finding that Respondent violated: 1. Section 561.20(2)(a)4., within section 561.29(1)(a), on September 8, 2010, by failing to provide the required service area, seating, and equipment to serve 150 persons full-course meals at tables at one time as required by its license; 2. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), the audit period of April 1, 2010, through July 31, 2010, by not providing the requested business records; and 3. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), on September 8, 2010, by not providing the requested business records. It is further RECOMMENDED that the final order find that the Department did not prove by clear and convincing evidence that Respondent violated section 561.20(2)(a)4., within section 561.29(1)(a). DONE AND ENTERED this 23rd day of September, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2011.
The Issue The issue is whether, pursuant to section 561.32(1)(a) and (b), Florida Statutes, Respondent is required to approve the transfer of alcoholic beverage license to Petitioner after its purported purchase of the license at a sheriff's sale.
Findings Of Fact Prior to the events set forth below, La Cidra Corporation (La Cidra) owned the License. As issued by Respondent, the License authorized La Cidra to sell alcoholic beverages at a bar known as L'Boulevard Café Supper Club,2 which was located in leased premises at 3632-34 Northwest 25th Avenue in Miami (Premises). On October 28, 2013, Steven Beltre (Beltre) obtained a final judgment in the Eleventh Judicial Circuit Court in the amount of about $3.4 million against La Cidra, doing business as L'Boulevard Cafe Supperclub. Respondent has adopted a form, DBPR ABT-6022, for persons to record liens against alcoholic beverage licenses. However, at no material time did anyone record with Respondent a lien against the License in connection with the Beltre judgment. The record does not disclose when La Cidra ceased operating the bar. However, on January 21, 2014, Intervenor registered "L'Boulevard Café Supperclub" as a fictitious name, and Intervenor and La Cidra signed an "Application for Transfer of Ownership of an Alcoholic Beverage License" concerning the License. On February 13, 2014, Intervenor purchased from La Cidra all of its assets, including the License. At closing, La Cidra assigned the Premises lease by an assignment that was signed by La Cidra, Intervenor, and the lessor. The assignment acknowledges that Intervenor has paid the lessor a security deposit of $10,000. A closing statement reflects a purchase price of $100,000, which is represented by a $15,000 deposit and $85,000 promissory note. On February 20, Intervenor filed with Respondent the application described in the preceding paragraph, and Respondent, on the same date, issued to Intervenor a temporary license based on the License. Five days after the closing described in the preceding paragraph, on February 18, 2014, the Clerk of the Eleventh Judicial Circuit Court issued a Writ of Execution directing all sheriffs in the state of Florida "to levy upon property subject to execution of . . . La Cidra . . . to satisfy the sum of [approximately $3.4 million]." The Miami-Dade County Sheriff's Office levied upon property on March 8, 2014--23 days after the closing of the conveyance of the License from La Cidra to Intervenor. The seized property included alcoholic beverages, bar equipment, computers, televisions, phones, stage lights, radios, smoke machines, and shop equipment, as well as the following intangible personal property: a certificate evidencing La Cidra as the licensee under the License, an $85,000 "secured" promissory note that is not further identified, and currency totaling $17,206 in denominations as large as $100 bills. After the seizure, the sheriff advertised the sale of the property by auction on April 30. The list of property to be sold included the License, but not the promissory note or cash, whose disposition is undisclosed in the record. On April 30, 2014--over two months after the La Cidra/Intervenor conveyance--the sheriff executed a Sheriff's Bill of Sale transferring all "right, title and interest" of La Cidra to all of the advertised property to Respondent for the sum of $2000 plus $140 sales tax, which represented the highest bid at the sheriff's sale. Immediately after the sheriff's levy, in March, Respondent was contacted by various parties, including the sheriff's office, which provided Respondent with a copy of the writ of execution and list of seized property.3 On April 7, 2014, Respondent received a letter from Daniel W. Courtney, an attorney whose cover letter states that he represents Intervenor. The letter recites that Respondent properly had issued a temporary license to Intervenor, but later had withheld the issuance of the permanent License to Intervenor due to its receipt of information from the sheriff concerning the purported seizure of the License. The letter asserts that this was an improper seizure because the License was not the property of La Cidra at the time of the seizure and requests that Respondent issue the permanent License to Intervenor without delay. Unmoved by Mr. Courtney's letter, on June 4, 2014, Respondent issued a Notice of Intent to Deny License to Intervenor. The notice cites the writ of execution issued on February 18 and reasons that "neither the putative transferor nor putative transferee possess[es] title for the transfer of the [License]." This reasoning does not account for the simple chronology of events in which the La Cidra/Intervenor conveyance preceded the sheriff's levy and sale. On June 14, 2014, Intervenor requested an administrative hearing on the proposed denial. By Order of Dismissal entered April 30, 2015, Respondent acknowledged that its failure for more than 90 days to issue a decision on Intervenor's transfer application for a permanent License required Respondent to deem that the application had been approved, pursuant to section 120.60(1).4 The Order of Dismissal rescinds, without prejudice, the Notice of Intent to Deny License issued on June 4, 2014, and notes that Respondent approved the transfer of the permanent License to Intervenor on January 30, 2015.5 At about the time that it requested an administrative hearing on Respondent's earlier denial of its transfer application for a permanent License, Intervenor commenced judicial proceedings to obtain relief from Petitioner's claims arising out of the sheriff's sale. Intervenor sought to intervene in supplemental proceedings pertaining to the underlying tort action between Beltre and La Cidra. Intervenor also commenced a legal action against Beltre. The trial court denied the motion to intervene without prejudice, pending resolution of the separate action against Beltre. Intervenor appealed this order, but the appellate court affirmed the trial court on June 3, 2015. On October 6, 2015, the trial court dismissed Intervenor's action against Beltre for lack of prosecution. At the same time that Intervenor was pursuing judicial and administrative relief, on June 6, 2014, Petitioner filed a transfer application for Respondent's approval of the transfer of the License to Petitioner. The page for the signature of the transferor is blank, but Petitioner attached to the application a copy of the above-described Sheriff's Bill of Sale. On July 9, 2014, Respondent issued the above-described Notice of Intent to Deny License to Petitioner that cites Intervenor's documentation of the La Cidra/Intervenor conveyance as the ground for the denial. The evidentiary record omits any evidence of the fair market value of the License and, more importantly, as noted by Respondent in its proposed recommended order, the fact that, on November 13, 2013, Beltre filed with the Department of State a judgment lien certificate.
Recommendation It is RECOMMENDED that Respondent deny the application of Petitioner for a statutory transfer of the License. DONE AND ENTERED this 31st day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2016.
Findings Of Fact 10. The Division hereby adopts and incorporates by reference the Finding of Fact in foto, as set forth in the Recommended Order.
Conclusions The Director, Division of Alcoholic Beverages and Tobacco, Department of Business and Professional Regulation (hereinafter’Division’), after consideration of the complete record of this case on file with the Division, hereby enters this Final Order.
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.
Findings Of Fact Victor Ingargiola is the sole shareholder, director and officer of Petitioner, I & H Enterprises, Inc., d/b/a Basin Street East (Petitioner), a Florida corporation. The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is the Respondent. Both Mr. Victor Ingargiola and his wife, Mrs. Barbara Ingargiola, entered the Division's double random selection drawing for eligibility to apply for a new quota alcoholic beverage license. Mr. Ingargiola was selected in the drawing, and Mrs. Ingargiola was not. After receiving notice of his selection in the drawing, Mr. Ingargiola formed the Petitioner and applied for licensure on or about November 1, 1984. In his application, Mr. Ingargiola did not identify his wife as a person having an interest in Petitioner or its business, either directly or indirectly. The application also represented that Petitioner had a right to occupancy of the premises to be licensed at 4513 Causeway Boulevard, Tampa, Florida. Petitioner's application carries with it an application fee of $6,750. Mr. Ingargiola obtained a portion of the funds necessary to pay the application fee from funds held jointly by him and his wife and by loans to him and his wife secured by property jointly held by him and his wife. Virtually all money and property of the Ingargiolas is held in their joint names. Both Mr. and Mrs. Ingargiola conferred with the Division's Investigator Miller concerning the application. Miller initially requested that Mrs. Ingargiola be finger printed as a person having an interest in the license to be issued. Mrs. Ingargiola understood that she was not permitted to have an interest since she herself had entered the double random selection drawing. She therefore declined to be fingerprinted or to be made to appear on the application as a party having an interest in the license to be issued. Investigator Miller also discussed with the Ingargiolas the question of Mrs. Ingargiola's involvement and the financing of Petitioner. Investigator Miller led the Ingargiolas to believe that the only possible legal financing arrangement would be for Mrs. Ingargiola to give the funds to her husband outright. He led them to believe that this could be done by affidavit, and Mrs. Ingargiola signed and filed an affidavit which Investigator Miller approved as to form. The affidavit listed the financing in question and stated: "I swear that the following funds obtained are to be used by Victor A. Ingargiola and I will have no interest or control over these funds." Barbara Ingargiola also testified at final hearing that she claims no interest whatsoever in Petitioner, any license to be issued to it, or the funds she gave outright to her husband to finance Petitioner. Essentially, Mrs. Ingargiola gave her half of the joint funds and proceeds of joint loans used by Victor Ingargiola to finance Petitioner's application fee. If necessary, she was prepared to do the same with the proceeds from the sale of joint real property or loans secured by the Ingargiolas' joint real property. However, no mention was made or consideration given to Mrs. Ingargiola's liability for her husband's share of the joint borrowing in addition to hers. Mrs. Ingargiola did have an interest in the successful operation of Petitioner so as to enable her husband to pay at least half, if not all, of the joint borrowing used in part to finance Petitioner. On or about October 12, 1984, Mr. Ingargiola obtained a written lease to the premises to be licensed. However, the lease does not contain a commencement date. At the time the application was filed, the premises were occupied by another tenant, and, as of December 20, 1984, this tenant had a legal right to occupy the premises and had not been notified of the pending liquor license application or the lease. In addition, the purported lease contains a provision requiring Petitioner to secure its duties and obligations under the lease by depositing with the landlord the sum of $60,000 in cash or irrevocable letter of credit. There was no evidence that Petitioner had complied with or could comply with this requirement of the lease. Although Mr. Ingargiola testified to his understanding of his right to occupancy of the premises under the lease upon granting of Petitioner's application and issuance of the license, there was no testimony from the landlord on the ambiguities surrounding the lease and the rights of the tenant in possession. As a result, the evidence as a whole was insufficient to prove Petitioner's right to occupancy of the premises to be licensed.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, deny the application of Petitioner, I & H Enterprises, Inc., d/b/a Basin Street East, for a quota alcoholic beverage license RECOMMENDED this 17th day of March, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1986. COPIES FURNISHED: Joseph L. Diaz, Esquire 2522 W. Kennedy Blvd. Tampa, FL 33609 Thomas A. Klein, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301
The Issue Whether or not on or about October 31, 1978, the Respondent, Cesar Augustus Rodriguez, a licensed vendor or distributor, or his authorized agent, did sell alcoholic beverages with an improper license, to-wit: Selling under authority of a license when the license fee required for renewal had not been properly paid, contrary to Section 562.12, Florida Statutes.
Findings Of Fact On September 30, 1978, the Respondent, Cesar Augustus Rodriguez, issued or caused to be issued a check in the amount of $1,750.00 made in behalf of the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The purpose of this check was to pay for the annual renewal of Respondent's beverage license, Number 39-994, 4-COP, under which the Respondent was trading as Tom's Place. The requirement for payment of the renewal of the license is established by Section 561.27, Florida Statutes. The check for payment was drawn on the Barnett Bank of Tampa. When presented by the Petitioner for payment, the check was returned on the basis that there were insufficient funds for the check to be honored. The check number in question was check No. 407, drawn on account No. 01704386. (The facts as stated above were arrived at pursuant to a stipulation entered into by the parties and placed on the record during the process of a formal hearing conducted pursuant to Section 120.57, Florida Statutes.) Representatives of the Petitioner tried on a number of occasions to get the Respondent to pay the required license fee by an instrument that was negotiable. Those representatives were unsuccessful in their attempts, and on October 30, 1978, Captain R. Caplano, District VI Supervisor, Division of Alcoholic Beverages and Tobacco dispatched officers to retrieve the aforementioned beverage license from the premises known as Tom's Place. The license was brought back to the District headquarters. Around 4:55 p.m. on October 30, 1978, the Respondent came to the District office of the Petitioner with the intention of redeeming the license to Tom's Place and two other licensed premises owned and operated by him, namely, Port Tampa Bar and Rene's Lounge. Rodriguez offered to pay the licensing fee in cash; however, there was insufficient cash to pay the entire fee required and the necessary penalty established under Section 561.27, Florida Statutes. Moreover, the language of of Rule 7A-2.15, Florida Administrative Code, establishes that the Petitioner shall accept only a cashier's check, money order or certified check in payment for the license fee once an insufficient funds check has been tendered for that payment initially. During the course of the meeting between the Respondent and Captain Caplano on the afternoon of October 30, 1978, held in the District office, Mr. Rodriguez indicated his concern that he not be able to operate during the interim period necessary to obtain the proper form of payment for the license fee and penalty. After that discussion, the license to Tom's Place and the other licenses discussed were returned to the Respondent with the understanding that the Respondent was to bring in the proper license fees and penalty payments on the following morning, October 31, 1978; immediately after the banking institutions had opened, to allow the Respondent to obtain the necessary cashier's checks. The Respondent was under the impression that between the hours that his licenses had been returned to him and the time on the morning of October 31, 1978, to make the proper payment, he was at liberty to operate the licensed premises to the extent of selling alcoholic beverages. Captain Caplano, through his testimony in the course of the hearing, established that the act of returning the license on the evening of October 30, 1978, was tantamount to allowing the Respondent to operate, conditioned upon the immediate payment of the license fees on the following morning of October 31, 1978. The licensed premises, Tom's Place, was opened the next morning at 7:05 a.m. It opened after the license had been seized on the prior afternoon of October 30, 1978, at 4:31 p.m. and after advising the employee on duty for the Respondent that no more alcoholic beverages could be sold following the seizure. This arrangement was superseded by the arrangement between the Respondent and Captain Caplano, which was made in the late afternoon of October 30, 1978. Turning back to a consideration of the situation on October 31, 1978, at the time Tom's Place was opened, a different employee was on duty than that person who was there on the afternoon of October 30, 1978. This new employee was one Corine Lewis. At about the time the premises opened, she called the stepson of the Respondent to ascertain whether or not alcoholic beverages could be sold. The response of the stepson, who was acting under the authority of the Respondent, was to the effect that the "boss" was on the way with the license, creating the belief in the mind of Ms. Lewis that she could sell alcoholic beverages. At around 8:30 a.m., the same Ms. Lewis called the Petitioner's office and spoke to Beverage Officer John Allen, the same officer who had removed the license from the premises on the afternoon of October 30, 1978. Officer Allen instructed Ms. Lewis not to sell any alcoholic beverages without the license being available. Following the conversation between Ms. Lewis and Officer Allen, the Respondent came to the District headquarters around 10:00 a.m. on October 31, 1978, with the necessary funds to pay for the renewal of the licenses pertaining to Port Tampa Bar and Rene's Lounge. He did not have the necessary funds to pay for the renewal of the license for Tom's Place. He indicated to officials at the District office of the Petitioner, that it would be necessary for him to obtain a cashier's check from a separate bank for the payment of the license for Tom's Place, meaning by that a separate bank than the one from which the cashier's checks were issued for the purpose of paying the licenses for Port Tampa Bar and Rene's Lounge. Rodriguez indicated that he would leave the license for Tom's Place until he could obtain the money for the license fee. He did in fact leave that license with the Division of Alcoholic Beverages and Tobacco and the fee was paid sometime in the early afternoon of October 31, 1978. At around the time the conversation was occurring between the Respondent and Captain Caplano, the representative of the Petitioner, Officer Allen had returned to Tom's Place. When he entered the licensed premises, he discovered a number of patrons in the premises and opened beer bottles in evidence. Officer Allen inquired of Ms. Lewis about the license and Ms. Lewis informed him that she did not have the license. Officer Allen then left the licensed premises and called Captain Caplano to ascertain the whereabouts of the license. He also advised Captain Caplano that alcoholic beverages had been sold in the licensed premises on the morning of October 31, 1978. Captain Caplano indicated that he had the license and that the license fee had not been paid and that Officer Allen should write a citation for selling alcohol without a license if in fact that had occurred at a time when the premises was not operating under an authorized beverage license. Officer Allen followed those instructions, and cited the licensee for a violation of Section 562.12, Florida Statutes, which pertains to selling alcoholic beverages with an improper license. While Officer Allen was still at the licensed premises the morning of October 31, 1978, the stepson of the Respondent arrived at that location to close the bar, and did close it. Under the circumstances, the Respondent was of the persuasion that he could operate the bar until such time as the license fee had been properly paid after the bank had been opened on the morning of October 31, 1978. He did not feel that he had the opportunity to visit two banks to get the necessary cashier's checks, prior to reporting to the District office of the Petitioner to pay the license fees and penalties. Captain Caplano was of the belief that the licensee could operate on the evening of October 30, 1978, but did not envision the right of the licensee to operate on the morning of October 31, 1978, if the licensee did not immediately tender payment for the license fees on the morning of October 31, 1978. In the mind of Captain Caplano, the idea of selling any form of alcoholic beverages on the morning of October 31, 1978, without first paying the license fee for Tom's Place constituted the sale of alcoholic beverages under an improper license. It is unclear exactly when the alcoholic beverage was sold on the morning of October 31, 1978, in Tom's Place. Ms. Lewis' testimony is to the effect that one beer was sold sometime between 7:05 a.m. and 8:30 a.m., with 8:30 a.m. being the time at which Officer Allen advised Ms. Lewis that no alcoholic beverages should be sold on that morning without the license being on the premises and this testimony is unrefuted by the Petitioner. In view of the totality of the facts, it has not been demonstrated by the Petitioner that the Respondent was acting in derivation of the inherent authority to sell alcoholic beverages extended to him when the licenses were returned to him on the afternoon of October 30, 1978, through the person of Captain Caplano. Therefore, there has been no showing of a violation of Section 562.12, Florida Statutes.
Recommendation It is recommended that the case before the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Number 33276- A, be dismissed. DONE AND ENTERED this 6th day of March, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary Jo M. Gallay, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 Cesar Augustus Rodriguez t/a Tom's Place 2605 West Kennedy Boulevard Tampa, Florida 33609
The Issue Whether petitioner's application for transfer of an alcoholic beverage license should be granted, or denied on the ground that the license has been revoked.
Findings Of Fact On January 25, 1977, Armando Calo, through counsel, filed a Notice of Lien with DABT stating that he was a bona fide mortgagee on an alcoholic beverage license (4-COP, lic. no. 23-1901) held by the Intimo Lounge, Inc., 1601 Collins Avenue, Miami Beach, Florida. Citing Section 561.65, Florida Statutes, he enclosed a copy of his chattel mortgage and a check payable to DABT in the amount of $5.00. (P-1) By return letter dated February 4, 1977, C. L. Ivey, Jr., DABT's Licensing Supervisor, acknowledged receipt of Mr. Calo's Notice of Lien and stated that it would be made part of the Intimo Lounge, Inc. license file. At that time, administrative license revocation proceedings were pending against Intimo Lounge, Inc. So Mr. Ivey sent a copy of his February 4, 1977 acknowledgment letter to DABT's Miami Office, and included this notation: P.S. John: You need to immediately notify Attorney Solomon's [Calo's attorney's] office if and when an order to revoke is issued. He will then go to court to seek a judicial transfer. (P-2) On March 22, 1977, Charles A. Nuzum, DABT's Director, executed an order revoking Intimo Lounge, Inc.`s alcoholic beverage license. (R-1) Eight days later, on March 30, 1977, Armando Calo sued Intimo Lounge, Inc., seeking to foreclose his chattel mortgage on its alcoholic beverage license. By letter of the same date, counsel for Mr. Calo, citing Section 561.65, Florida Statutes, notified DABT of the filing of the foreclosure action; he also asserted that Mr. Calo had no knowledge of or participation in the causes for which the Intimo Lounge, Inc. beverage license was revoked. Copies of subsequent pleadings filed in the action were sent to DABT's legal department. DABT thus knew the suit was filed and was aware of its continued progress. (Testimony of Barone; P-3, P-4, P-11) The Circuit Court of Dade County ultimately entered a final judgment of foreclosure in Mr. Calo's favor. On August 17, 1979, pursuant to such judgment, the Clerk of the Court sold the Intimo Lounge, Inc. beverage license, at public sale, to intervenor Rene Valdes, 1710 N.W. 7th Street, Suite 7201, Miami, Florida for $25,000. Notice of the sale was published in the Miami Review, a newspaper circulated in Dade County. On August 28, 1979, the Clerk issued a Certificate of Title pursuant to Chapter 45, Florida Statutes. This Certificate certified that Intimo Lounge, Inc.`s alcoholic beverage license (4-COP, license no. 23-1901) had been sold to Rene Valdes on August 17, 1979, and that "no objections to the sale have been filed within the time allowed for filing objections." (Testimony of Valdes; P-5, P-6) Although DABT was aware of the protracted mortgage foreclosure litigation involving the Intimo Lounge, Inc. beverage license --which it had earlier revoked -- it never protested or sought to block the foreclosure action. It was not a party to the action; neither did it attempt to become one. (Testimony of Barone, Valdes) In September, 1979, a month after the judicial foreclosure sale, Nathaniel Barone, counsel for Intimo Lounge, Inc., wrote R. B. Burroughs, Jr., Secretary of the Department of Business Regulation, asking what steps were necessary to keep the Intimo Lounge, Inc. beverage license viable. An internal memorandum suggests that DABT was, at first, unprepared to answer that question and preferred, instead, to delay answering until an application for the license was filed. But, on October 4, 1979, Harold F. X. Purnell, the Department's General Counsel replied on behalf of Secretary Burroughs: It is the Division's position that the . . . license has been and presently is revoked pursuant to the actions pre- viously taken by [DABT]. Further, that in the absence of an order of appropriate jurisdiction entered in a proceeding to which the Division is a party we are powerless to transfer such license. (Testimony of Barone; P-7, P-10) Meanwhile, Rene Valdes, notified DABT of his purchase of the Intimo Lounge, Inc. beverage license and asked that it be held in escrow while he found a suitable purchaser and location. When DABT refused, Mr. Valdes petitioned the court, which had rendered the foreclosure judgment, to require DABT to process and transfer the license. The court denied his petition, at least in part, because DABT was not a party to the proceeding. After the court hearing, Mr. Valdes, together with his attorney, Charles Kelly, and DABT's counsel, Mr. Purnell, met outside the chambers and discussed their next step. Mr. Kelly discussed seeking a mandamus ordering DABT to issue the license. Mr. Purnell suggested, instead, that Mr. Valdes find a location and purchaser for the license, then submit an application to DABT -- something which Mr. Valdes had not yet done. Although Mr. Purnell did not assure them that the application would be approved, both Mr. Valdes and Mr. Barone gained an impression that it would be. 2/ Mr. Valdes, following Mr. Purnell's suggestion, found a location and buyer, then applied for a transfer of the license. DABT's denial resulted in this proceeding. (Testimony of Barone, Valdes) Under Section 561.65(1), Florida Statutes (1977), a lender licensed by the state holding a lien on an alcoholic beverage license had the right to enforcement of his lien against the license within 12 days after any order of revocation, provided it was revoked for causes which the lienholder had no knowledge and did not participate. If the lienholder purchased the license at foreclosure sale, he could operate under it or transfer it to a qualified person. Until August 17, 1980, it was DABT's long-standing practice and policy to make no distinction between licensed and unlicensed lenders (lien-holders). It allowed both licensed and unlicensed lienholders to file notice of liens against beverage licenses and honored the subsequent transfer of the license if the lien was enforced within 12 days of revocation. This practice was abruptly changed on the basis of an agency legal opinion. On August 17, 1980, one month before Gui-Dom filed its application, DABT's General Counsel rendered a legal opinion limiting Section 561.65 relief to lenders licensed by the state. After that date, until 1981, when the legislature removed the "licensed lender" language of Section 561.65, DABT applied Section 561.65 literally and only accepted liens filed by licensed lenders. (Testimony of LaRosa; P-13) But in October, 1980, DABT did not deny Gui-Dom's application for transfer of the Intimo Lounge, Inc. license because Armando Calo, the lienholder, lacked a lender's license. Instead, the application was denied because the license had been earlier revoked. As later explained by Barry Schoenfeld, DABT's Chief of Licensing: 2 [DABT] felt at the time that . . . there really was no license, that the license had already been revoked, and that there was no license for the court to sell [to Valdes]. (P-13, p. 25). But Section 561.65 specifically permits liens, under specified conditions, to survive license revocation. When asked to explain DABT's position in light of Section 561.65, Mr. Schoenfeld replied, "I don't know that I can explain it." (P-13, p. 16) Neither could Mr. Schoenfeld adequately explain why, in cases similar to this, DABT has approved license transfers while, here, they have not. (P-13, p. 23) It was not until after the denial of Gui-Dom's application that DABT contended that Section 561.65, Florida Statutes (1977), provides no relief because Armando Calo was not a licensed lender. (P- 9, P-13). Rene Valdes, a beverage license broker, operates a business known as "Beverage License, Inc." He specializes in obtaining and transferring alcoholic beverage licenses for clients and has a working knowledge of the Beverage Law, including DABT rules and practice. When he purchased the Intimo Lounge, Inc. license at the judicial sale, he did not know that it had been revoked by DABT. He did, however, know that there was license revocation litigation between Intimo Lounge, Inc. and DABT. He also knew that DABT had issued an emergency order suspending Intimo Lounge, Inc.'s license; and he knew that there were circuit court foreclosure proceedings involving the license. Yet he failed to ascertain the status of the license -- either by checking the files of DABT or the circuit court. But even if he had discovered that the license had been revoked, under DABT's long-standing practice and interpretation of Section 561.65, it would have made no difference. The license would have "survived" revocation because Armando Calo had timely enforced his lien. And it could have been sold at a judicial sale and transferred to a new qualified purchaser. (Testimony of Valdes, Harris; P-13) DABT has provided no record foundation for its abrupt discontinuance of prior agency practice and policy in August, 1980, a policy which allowed both licensed and unlicensed lien holders to file and timely enforce liens against beverage licenses. This policy enabled a lien to survive license revocation; and the license, which had been revoked earlier could then be transferred by judicial sale. The only explanation given for the change in policy, a change which DABT now relies on as cause for denying Gui-Dom's application, is that the agency changed its legal interpretation of Section 561.65 (1977). (Testimony of LaRosa; P-13)
Recommendation Based on the foregoing, it is RECOMMENDED: That Gui-Dom's application for transfer of alcoholic beverage license no. 23-1901, series 4-COP, be granted. DONE AND RECOMMENDED this 3rd day of February, 1983, 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, 1983.
Findings Of Fact Respondent, C.S.G., Inc., d/b/a The Arena, holds alcoholic beverage license no. 62-427, Series 4-COP. The licensed premises is located at 4469 49th Street North, St. Petersburg, Florida. During the period relevant to this proceeding, Sam I. Ferrara, Jr. was the sole officer and stockholder of C.S.G, Inc. On November 19, 1980, prior to Ferrara's purchase of the C.S.G., Inc., Eugene O'Steen submitted a license application for transfer of alcoholic beverage license no. 62-427, from Edward Mickler, Jr. to C.S.G., Inc., showing O'Steen as the sole corporate officer and stockholder of C.S.G., Inc., and Ferrara as the manager. O'Steen's license application was not accepted as the application end accompanying documentation were incomplete. The initial application included a lease for the licensed premises signed by O'Steen over the whited-out signature of Sam I. Ferrara, Jr., dated October 9, 1980. O'Steen had negotiated the purchase of beverage license no. 62-427 from Edward Mickler, Jr., for $78,500. O'Steen intended to fund the purchase with a $2,000 down payment from personal assets and a $76,500 loan from the Central Bank of Tampa. However, O'Steen voluntarily withdrew his application on November 26, 1980, due to the possible filing of criminal charges which could have resulted in denial of the application. On the same day that O'Steen withdrew his application, Ferrara initiated a new application for transfer of alcoholic beverage license no. 62- 427. Ferrara's application was also in the name of C.S.G., Inc. showing Ferrara as the sole corporate officer and stockholder of this corporation. On December 2, 1980, Ferrara advised Petitioner's Beverage Officer Maggio that he, Ferrara, had negotiated the same contract to purchase beverage license no. 62-427, as had O'Steen. Said beverage license was to he purchased by Ferrara (C.S.G., Inc.) for a total of $78,500. A deposit of $2,000 had been made and a balance of $76,500 was due at closing on purchase of this license. Ferrara further advised that he (C.S.G., Inc.) was obtaining an $80,000 loan from the Central Dank of Tampa to finance the purchase of the beverage license and that he (C.S.G., Inc.) was obtaining a $20,000 loan from Attorney Matthews to reimburse O'Steen for remodeling expenses incurred on the licensed premises. On December 3, 1980, Ferrara submitted a personal questionnaire (PX-10) listing finances concerning the license application as follows: Central Bank of Tampa $80,000 Eugene O'Steen - [Crossed through] $20,000 John Matthews - $20,000 On December 3, 1980, Ferrara provided Beverage Officer Maggie with a completed license application (PX-9) together with a letter of commitment for a loan to C.S.G., Inc. in the amount of $80,000 signed by Orlando Garcia, President of the Central Bank of Tampa. This letter was dated December 3, 1980 (PX-1) On December 3, 1980, Ferrara was questioned by Beverage Officer Maggie as to the completeness and accuracy of his license application (PX-9) and his personal questionnaire (PX-10) Ferrara advised Maggie on that date that both referenced documents were complete and accurate. Additionally, on the same date, Maggie reviewed with Ferrara his answers to all questions and both of the referenced documents. Ferrara's answers contained in the referenced documents were sworn and made under oath. Section 7 of Ferrara's license application (PX-9) reads: List below the names of all those connected, directly or indirectly, in the business for which the license is sought: (This includes partner(s), spouse, director(s), stockholder(s), chief executive, limited and general partner(s), corporation(s), or any form of entity which is connected with the business. Name office (if corporation) or other title if any. Nature of interest including stock percentage. In response to this question, on his license application (PX-9), Ferrara identified himself as President, Secretary, Treasurer and 100 percent stockholder. No other person or entity was listed as interested directly or indirectly. Subsequent to December 3, 1980, Beverage Officer Maggio transmitted Ferrara's license application (Px-9) and related documentation to Petitioner's Tallahassee office with a recommendation that the application be approved. Thereafter, on December 5, 1980, C.S.G., Inc. was issued a temporary beverage license. The permanent beverage license, number 62-427, Series 4-COP, was issued on January 7, 1981. On December 1, 1980, prior to the letter of commitment from the Central Bank of Tampa (PX-1), and Ferrara's submission of his license application (PX-9) and personal questionnaire (PX-10), and also prior to Ferrara's oral statements to Beverage Officer Maggio, the Central Bank of Tampa issued a loan closing statement (PX-8) concerning C.S.G., Inc.'s (Ferrara) $80,000 loan. This loan closing statement (PX-8) reflected an $80,000 loan to C.S.G., Inc. and P & O, Inc. jointly, not solely to C.S.G., Inc. as indicated in the loan commitment letter (PX-1), Ferrara's oral statement, and Ferrara's license application (PX-9). Said loan closing statement reflected collateral for this loan which included beverage license no. 62-427, Series 4-COP (C.S.G., Inc. license) and an alcoholic beverage license held by P & O, Inc. On December 5, 1980, a bank note, number 55-25549 (PX-6) was executed in the amount of $80,000 with C.S.G., Inc. and P & O, Inc. as co-makers. This note was signed by Ferrara on behalf of C.S.G., Inc., and by Charles and Olga Pitisci on behalf of P & O, Inc. Said note (PX-6) corresponds to the loan closing statement dated December 1,1980 (PX-8). Pursuant and subsequent to the execution of the bank note discussed above (PX-6), a cashier's check, number 312768 (Px-3), was drawn on the Central Bank of Tampa and issued December 5, 1980 to C.S.G., Inc. and P & O, Inc. jointly, in the amount of $70,278.25. This cashier's check represented the proceeds from the loan generated on bank note 55-25549 (PX-6). These proceeds were deposited in the Central Bank of Tampa to the account of C.S.G., Inc. On December 5, 1980, a separate cashier's check (PX-2) number 312502 was issued by the Central Bank of Tampa payable to Edward Mickler, Jr in the amount of 576,500. Funds for this check came from C.S.G., Inc.'s account. The purpose of this check (PX-2) was to pay the balance of the purchase price due on beverage license no. 62-427. On December 5, 1980, another cashier's check (PX-4) number 312503 was issued by the Central Bank of Tampa in the amount of 52,775.25, to C.S.G., Inc. This check represented the balance of the loan proceeds from the Central Bank to P & O, Inc. and C.S.G., Inc. jointly (See PX-2 and PX-6). Collateral pledged as security for said loan (PX-6) includes real property of P & O, Inc., a beverage license of P & O, Inc., the beverage license of C.S.G, Inc., together with certain equipment of C.S.G., Inc. P & O, Inc. and C.S.G., Inc. executed a mortgage to the Central Bank of Tampa to secure said lean (PX-6) and the Central Bank of Tampa, effective December 5, 1980, insured said lean in the amount of 575,000 as evidenced by a fund mortgage form (Px-5) Neither C.S.G., Inc., the Central Bank of Tampa nor Ferrara in his oral statements to Petitioner's representative, disclosed the fact that P & O, Inc. was a co-maker of the $50,000 loan (PX-6) from the Central Bank of Tampa, or that P & O, Inc. had pledged real property and a beverage license as collateral for said loan. At all times pertinent to this procedure, P & O, Inc. was owned by Charles Pitisci, Olga Pitisci and Carlten O'Steen. At all times pertinent Charles Pitisci, Olga Pitisci and Eugene O'Steen were corporate officers of P & O, Inc. The testimony of Ferrara and Eugene O'Steen established that a close personal relationship existed between Ferrara and the owners of P & O, Inc. Ferrara's testimony established that the Central Hank of Tampa demanded additional security, and that P & O, Inc. principals cosigned the note as a personal favor to Ferrara and not to obtain an interest in the licensed business. This evidence was not rebutted by Petitioner. Ferrara did not believe he was under any duty to disclose the role of the Pitiscis and P & O, Inc. with respect to the Central Bank of Tampa loan since he did not believe they had acquired any direct or indirect interest in C.S.G., Inc. or beverage license no. 62-427.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint/Notice to Show Cause. DONE and ENTERED this 28th day of June, 1982 at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1982. COPIES FURNISHED: John A. Beggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Paul Antineri, Jr., Esquire 601 E. Twiggs Street Tampa, Florida 33602 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue By notice to show cause, petitioner charged that respondent, individually or through the acts of its agent/employee, violated the provisions of Section 562.11(1)(a), Florida Statutes, by selling an alcoholic beverage on its licensed premises to a person under the age of 21. Respondent requested a formal hearing on the charges, and the matter was referred to the Division of Administrative Hearings. At the hearing, petitioner called three witnesses and offered three exhibits which were admitted into evidence. Respondent testified on his own behalf and offered no exhibits. A transcript of the hearing was not ordered, and the parties were granted leave until August 21, 1989 to file proposed findings of fact. Petitioner timely filed proposed findings of fact and conclusions of law. A ruling on each of petitioner's proposed findings of fact has been made and is reflected in the Appendix to this recommended order. On August 24, 1989, respondent filed a letter which is here deemed to be his proposed findings of fact; however, his filing was untimely.
Findings Of Fact At all times material hereto, respondent, Coast Line Petroleum, Inc. d/b/a Toms Texaco, held an alcoholic beverage license number 60-04813, series 2- APS for the premises known as Toms Texaco in Lantana, Florida at 401 N. Dixie Highway. Mr. Thomas Przybylski is the President of respondent and appeared on behalf of the licensee. On or around April 4, 1989, petitioner's investigator conducted an investigation of respondent's licensed premises to determine if respondent was selling alcoholic beverages to underaged persons. The investigation was prompted by complaints received by petitioner from the Lantana Police Department. Petitioner's practice in making such investigations was to employ an underaged person and send the underaged person onto the licensed premises to purchase an alcoholic beverage. The underaged person was instructed not to carry any form of identification and to respond truthfully if asked his age or for identification. Julio A. More was employed by petitioner as an Investigative Aide. On April 4, 1989, following petitioner's instructions, Mr. More, who was eighteen at the time and appeared to be no older than his age, entered the licensed premises at issue. It was a busy afternoon at Toms Texaco. Mr. More picked a beer out of the inventory and attempted to purchase it from Mr. Przybylski, who was working that afternoon. Mr. Przybylski asked Mr. More if he had any identification to which Mr. More replied that he had none. Mr. Przybylski then sold Mr. More the beer. Petitioner's investigator witnessed the sale and confiscated the tendered beer. Mr. Przybylski as an employee and officer of respondent sold an alcoholic beverage to an individual who was eighteen at the time of the sale. Accordingly, respondent is guilty of selling an alcoholic beverage to a person under 21 years of age. The proof demonstrated that petitioner has promulgated disciplinary guidelines for offenses similar to the one at issue; and that the appropriate penalty in this case would be the imposition of a fine of $1,000 and twenty-day suspension of the license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on respondent an administrative fine of $1,000 and suspending respondent's license for a period of twenty days. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of September 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO.89-3006 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraphs 3 and 4. Addressed in paragraph 4. Irrelevant. Adopted in paragraph 5. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Thomas John Przybylski, Jr. Coast Line Petroleum, Inc. 10670 Cypress Bend Drive Boca Raton, Florida 33498 Lt. Debbie Pfitzenmaier Elisha Newton Dimick Building 111 Georgia Avenue, Room 207 West Palm Beach, Florida 33401 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey Director The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000
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.
