The Issue Whether Respondent has the discretion to deny Petitioner's application for a beverage license on the grounds set forth in the Notice of Intent to Deny License and, if so, whether Respondent abused its discretion.
Findings Of Fact Respondent is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to issue beverage licenses pursuant to Chapter 561, Florida Statutes, and applicable rules. Prior to October 21, 1994, Petitioner, doing business as Wilson's Grocery, was the owner and holder of beverage license 66-0123. On November 9, 1992, Petitioner's daughter, daughter-in- law, and wife were convicted of felony charges pertaining to food stamps fraud that occurred on or near the licensed premises. On November 9, 1992, Respondent issued to Petitioner a Notice to Show Cause why license 66-0123 should not be revoked based on those convictions. Petitioner timely requested a formal hearing to challenge the Notice to Show Cause, the matter was referred to the Division of Administrative Hearings, and assigned DOAH Case No. 94-0929. A formal hearing was convened in Fort Pierce, Florida, on July 21, 1994, before Administrative Law Judge J. D. Parrish. At the formal hearing, Petitioner withdrew his request for a formal hearing with the knowledge that license 66-0123 would be revoked. On October 21, 1994, a Final Order was entered by Respondent revoking license 66-0123. Petitioner offered no evidence that would establish he has good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for a beverage license. DONE AND ENTERED this 6th day of March, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of March, 2001. COPIES FURNISHED: George W. Wilson, Sr. Wilson's Game Room 1101 Avenue D Fort Pierce, Florida 34951 Michael Martinez, Esquire Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Lois A. Williams Regulatory Supervisor/Consultant Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1021 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether respondent's alcoholic beverage license should be disciplined for allegedly serving alcoholic beverages to a person under the age of 19 contrary to Section 562.11(1), Florida Statutes.
Findings Of Fact Respondent holds alcoholic beverage license No. 64-00061, Series 6-COP. Under this license, it operates a liquor store and lounge, where it serves alcoholic beverages, at ABC Liquors #65 ("lounge #65" or "licensed premises"), 2527 Reid Street, Palatka, Florida. (Testimony of Ewing, Holloway, Ottens.) I. At approximately 7:00 p.m. on October 23, 1981, Clay Lamar Strickland, 16 years old, entered respondent's lounge in the company of several friends--one was 20, the others were 19 years old. During the two hours which followed, he ordered and was served by two barmaids, a beer and eight or nine mixed alcoholic drinks. Neither barmaid requested identification. (Testimony of Strickland.) At approximately 9:30 p.m., he left the lounge for twenty minutes, then returned and ordered additional mixed drinks. Again, the barmaids did not check his identification. (Testimony of Strickland.) When he left the lounge at the end of the evening, he was involved in a car accident and charged with driving while intoxicated and wanton reckless driving. After a test was administered, he was informed that the alcohol content of his blood was 0.12 percent. (Testimony of Strickland.) The two barmaids who served Mr. Strickland, Mary Tyler and Brenda Adams, did not intentionally serve alcohol to a minor. They believed he was 19 or older. At that time, he played football for Palatka High School; he was approximately 5'll" tall and weighed 170 pounds. Because of his size and mature-looking face, he could easily have been mistaken for an adult. (Testimony of Adams, Tyler, Strickland.) October 23, 1981, was not r. Strickland's first visit to the lounge. Once before, he had succeeded in purchasing one beer; on other occasions, his identification had been checked and service was refused. He was well aware that he was underage and could not legally purchase alcohol. (Testimony of Strickland.) II. Respondent operates 148 similar liquor stores and lounges throughout Florida. It has announced and repeatedly emphasized to its employees a policy prohibiting sales of alcohol to minors. Its regulations inform new employees of the law against sales of alcohol to persons under 19, and require that bartenders check I.D.s of anyone who "doesn't look 23" or older. Periodic bulletins which must be signed and returned by employees, and posted notes of supervisors' meetings have reiterated respondent's company-wide policy against the sale of alcohol to minors. Further, the manager and night manager of store #65 frequently reminded their employees of the policy against sales to minors and the requirement to check I.D.s when in doubt about a customer's age. Ms. Tyler and Ms. Adams, the barmaids who served Mr. Strickland, were aware of this policy. (Testimony of Holloway, Tyler, Adams; R-1, R-2, R.-3.) On the whole, respondent has been successful in preventing sales of alcohol to minors in its stores and lounges. In the last ten years, it has been cited only ten times for violations relating to the unlawful sale of alcohol to minors. But a disproportionate number of those violations occurred at the Palatka #65 lounge. On two previous occasions, in 1979 and 1981, respondent admitted to unlawful sales of alcohol to minors at the #65 lounge and paid civil penalties. (Testimony of Holloway; P-1, P-6.) Yet, after each of these violations, including the incident involving Mr. Strickland in October, 1981, respondent's remedial action was simply to reinstruct employees at #65 of its policy not to serve alcoholic beverages to minors and to prevent such incidents from occurring. This action was not substantially different from the routine reminders it periodically issued to its employees in the past. (Testimony of Holloway, Ottens, Lindholtz.) At lounge #65, signs were not posted calling attention to its policy that sales to minors were prohibited. Neither did it post an employee at the main entrance to check I.D.s and keep minors out of the premises. (Testimony of Holloway, Ottens, Lindholtz.) III. The foregoing findings support a factual inference that respondent was not reasonably diligent in taking steps to prevent further repetition of sales to minors at its #65 lounge. Having been placed on notice that such incidents were occurring in disproportionate number at #65 lounge, it had a duty to investigate, to determine why such a phenomenon had occurred, and to take further precautionary measures. Instead, it was satisfied to simply remind the employees of store #65 of longstanding company policy.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license for lounge #65 be suspended for thirty days from entry of the final order in this proceeding. DONE and RECOMMENDED this 1st day of October, 1982, in Tallahassee, Leon County, 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 1st day of October, 1982.
The Issue The Division of Alcoholic Beverages and Tobacco seeks by this action to suspend or revoke or otherwise discipline License No. 56-00475 belonging to the licensee Clayton E. Adams. The basis for such action is the allegation that Mr. Adams violated Section 893.13, Florida Statutes, by delivering three pounds of marijuana to an individual named Jackie Long for which Mr. Adams received $800. The Petitioner called no witnesses but relied upon the stipulation entered into by the Respondent as to the facts alleged in the count set forth in the Notice to Show Cause. Mr. Clayton E. Adams testified on behalf of the Respondent, Blueberry Grocery and Curb Market. The Respondent offered into evidence nine exhibits, all of which were admitted without objection.
Findings Of Fact Mr. Clayton E. Adams, doing business as Blueberry Grocery and Curb Market, is the licensee of Beverage License No. 56-00475, license series 1-APS. The Petitioner and Respondent stipulated to the facts alleged in the one and only count of the Notice to Show Cause and based upon said stipulation, I find as follows: On or about August 10, 1981, Clayton E. Adams, did violate Section 893.13, Florida Statutes, to wit: Clayton E. Adams did deliver three pounds of marijuana to Jackie Long and did receive $800 for same, in violation of Section 893.13, Florida Statutes within Section 561.29, Florida Statutes. The licensed premises is located on Highway 85 North in Crestview, Florida, and is a grocery store. There is no on-premises consumption of alcohol. The transfer and sale of the marijuana by Mr. Adams took place at 10:00 o'clock at night. This was some two hours after the 8:00 o'clock closing time of the Blueberry Grocery and Curb Market. The only connection between this transaction and the licensed premises was the fact that the transfer took place in the parking lot of the Blueberry Grocery and Curb Market. The Blueberry Grocery and Curb Market is operated primarily by the wife of Clayton E. Adams. Mr. Adams drives a truck full-time and works at the store only on weekends. Prior to his arrest and charge for the sale of marijuana, Mr. Adams had no prior record and has no other evidence of violation in connection with his beverage license. With regard to the drug charge, the Circuit Court of Okaloosa County withheld adjudication of guilt, placed Mr. Adams on probation for five years, and imposed a $1,000 fine. As of the date of the hearing in this matter, Mr. Adams had been on probation for approximately one year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Beverage License No. 56-00475 be revoked but that the revocation be suspended pursuant to Section 561.29(5), Florida Statutes, for a period of four years. It is further recommended that such suspension of the revocation be conditioned upon there being no further violations of the laws of the State of Florida or the rules and regulations of the Division of Alcoholic Beverages and Tobacco. In the event that no such violation has occurred during that four-year period, it is further recommended that the revocation be withdrawn, at the end of the suspension period. DONE and ORDERED this 20th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1983. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Clayton E. Adams Blueberry Grocery and Curb Market Highway 85 North Crestview, Florida Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Harold F.X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 75 South Bronough Street Tallahassee, Florida 32301
The Issue The issue is whether Respondent's Policy Statement, that the inclusion of revoked quota licenses in Section 561.19, Florida Statutes, double-random selection by public drawing, constitutes an unpromulgated rule contrary to Sections 120.54 and 120.56(4), Florida Statutes.
Findings Of Fact Based upon observation of the witness and his demeanor while testifying, the documentary materials received in evidence, stipulations by the parties, and the entire record complied herein, the following relevant and material facts are found. The Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state Agency responsible for implementation of Chapter 561, Florida Statutes, Beverage Law Administration. In July 2001, Petitioner (BHI) made applications to the Agency for four quota alcoholic beverage licenses made available by revocation. Among those licenses, BHI made application for license number 47-00190, a quota license, initially issued before 1980 pursuant to the Leon County Special Act governing quota licenses; Chapters 63-1561 and 63-1976, Laws of Florida. License number 47-00190, a quota license revoked by the Agency approximately two years before BHI's application in 2001, became and remained available for reissuance at the time BHI filed its petition. The Agency denied BHI's application for revoked quota license no. 47-00190 in Leon County. A quota license is an alcoholic beverage license issued in a county whose population count, at the time of issuance, supports its issuance. In 1979, the Florida Legislature determined each county's population count to be 2,500 persons per quota license. In 2000, the Legislature determined each county's population count to be 7,500 persons per quota license. However, Section 561.19, Florida Statutes (2000), does not specifically direct the Agency to conduct a county's population re-count of 7,500 persons before the reissuance of a revoked quota license issued under the prior population count of 2,500 persons per county. The double-random selection drawing conducted by the Agency pursuant to Section 561.19, Florida Statutes, on October 31, 2001, included an alcoholic beverage license for use in Leon County that became available by virtue of the revocation of that alcoholic beverage license bearing license number 47-00190, which was issued before the change in the population count and the random selection method now contained in Section 561.19, Florida Statutes. The Agency based its denial of Leon County quota license 47-00190 in its Policy Statement of general applicability. The injury to BHI related to the denial of that quota license is within the zone of interest to be regulated and protected under Chapter 561, Florida Statutes, and Petitioner has standing to initiate and prosecute this proceeding. As alluded to before, BHI also made applications in July 2001 for revoked quota license number 26-00921 and revoked quota license number 26-00208 in Duval County; application for revoked quota license number 63-00525 in Polk County; and application for revoked quota license number 45-00073 in Lake County. Each revoked quota license was issued pursuant to the special act applicable to each county and was issued before the 1980 Amendment to Section 561.19, Florida Statutes. The Agency argues in its Proposed Final Order that Duval County (2) and Lake County (1) have exceeded their respective quota license limits, but does not address the quota license limits of the Polk County and the Leon County revoked quota licenses. It is assumed, based upon the fact the revoked quota licenses in those two counties were made available for reissuance, those quota licenses did not exceed the current quota limit of the 7,500 population count. The quota licenses above were revoked several years ago by the Agency and became available for reissuance. Regarding each application filed, BHI received a notice from the Agency stating that: There is no license currently available for issuance in a (specific) County. When licenses become available by reason of increase in population or revocation of a quota license, these licenses are re-issued pursuant to a double-random selection by public drawing. (Emphasis added) The parties entered into a stipulation concerning . . . the Division's policy statement that revoked alcoholic beverage licenses are to be included in drawings conducted pursuant to Florida Statutes, 561.19. . . . BHI challenged the Agency's Policy Statement of general applicability that revoked quota alcoholic beverage licenses are required to be included in a random drawing pursuant to Section 561.19, Florida Statutes. BHI argues that Section 561.19, Florida Statutes, authorizes double-random selection drawings for issuance of alcoholic beverage licenses in only two situations: (a) where licenses become available by an increase in population of a county; or (b) where a dry county, by special act, becomes a wet county. The Agency has embarked on a stated policy, not adopted as a rule, in which, contrary to Section 561.19, Florida Statutes, it includes all revoked quota licenses in the double- random selection drawing. The Agency has thus instituted an unwritten rule policy contrary to Sections 120.54 and 120.56(4), Florida Statutes. The policy statement was applied to BHI's applications for revoked licenses by letters from the Agency denying BHI's four applications for revoked quota licenses stating revoked quota licenses are to be placed in a random selection drawing pursuant to Subsection 561.19(2), Florida Statutes. The Agency, in its pubic legal notice, concerning a double-random selection drawing, set forth the total number of licenses available in each county that are to be awarded by the random selection drawing. Several of the counties listed in the legal notice have an asterisk next to the total licenses available for that county. The explanation by the Agency for the public notice asterisk is to identify those revoked quota licenses included in the total number of available licenses. The following findings of fact are based, in part, on the stipulation of the parties concerning this dispute. The Agency does not have an adopted rule that addresses inclusion of all revoked license in double-random selection drawings. The Agency agreed that the above Policy Statement had not been adopted as a rule by appropriate rulemaking procedures as defined in Sections 120.54 and 120.56(4), Florida Statutes. The Agency takes the position that Section 561.19, Florida Statutes, authorizes double-random selection by public drawing to be used when a quota license becomes available by an increase of 7,500 in a county's population. The Agency's position is that Section 561.02, Florida Statutes, grants the Division Director discretionary authority to enforce the Alcoholic Beverage Law, Chapter 561, Florida Statutes, in accordance with the Legislative intent. Accordingly, Section 561.19, Florida Statutes, is the grant of authority for the Agency's Policy Statement herein challenged. Additionally, the Legislative intent of Section 561.19, Florida Statutes, argues the Agency, is twofold: (1) it removed sole discretion from the Division Director to issue quota licenses, and (2) created a system to ensure licenses issued after 1980 would be in a fair and equitable manner to all applicants. The answer to the threshold question, of whether the Agency's Policy Statement at issue is intended to have the effect of law, is in the affirmative. Prior to the 1980 Amendment to Section 561.19, Florida Statutes, revoked quota license were reissued in accordance with Section 561.02, Florida Statutes (1979). An application was made for a specific revoked license; the application was reviewed and investigated, and if found in compliance with statutory requirements by the Agency, the Director issued the quota license to the approved applicant. The parties agreed that in the event that two applications were made for one license, the first application filed and approved would be granted the license.
The Issue The issues for disposition are whether Respondent sold alcoholic beverages to an underage person in violation of section 562.11(1)(a), Florida Statutes, as alleged in the Petitioner’s Administrative Action dated February 20, 1996, and if so, what penalty or discipline is appropriate.
Findings Of Fact Respondent is the holder of alcoholic beverage license no. 69-01472, Series 2APS, for a licensed premises doing business as Superette #3, located at 199 North Country Club Road, Lake Mary, Seminole County, Florida. On February 8, 1996 and at all relevant times, Salim Dhanani was the sole corporate officer and sole shareholder of Superette #3, Inc., the holder of the above-referenced alcoholic beverage license. The “City/County Investigative Bureau” (CCIB) is a task force of officers from the Seminole County Sheriff’s Department and surrounding cities assigned to investigate crimes relating to drugs, alcohol and vice, including the sale of alcohol to minors. CCIB acts on complaints and works with the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT). Darrell Brewer, born March 18, 1976, was a police explorer who was asked to help the CCIB investigate sales of alcohol to underage persons. On February 8, 1996, he was 19 years old and was working with Officers Johnson and Hartner. On February 8, 1996, in the evening around 8:00 p.m., Brewer and a CCIB agent entered the licensed premises, Superette #3. Brewer wore jeans and a tee-shirt and carried cash and a valid ID, which he was instructed to present if requested. Brewer picked out a 6-pack of Miller Genuine Draft beer and took it to the counter, where he purchased it without being asked for identification or any question regarding his age. Brewer turned over the beer to Officer Johnson, who returned to the store and arrested the clerk who had made the sale, Salim Dhanani. In May 1996, Dhanani went to court and pled no contest to the criminal charge of sale of alcohol to an underage person. He paid a fine. In his eleven years in the United States, this is the only violation by Dhanani. He worked in several places before taking over Superette #3 in November 1993, and he never had problems with DABT. After the Brewer incident, Dhanani hired a private consultant to train his wife and him and their one employee. They learned to “ID” everyone, including regular customers; they posted signs and notices informing customers of their “responsible vendor policy” and their intent to prosecute minors attempting to purchase alcohol. Dhanani admits that he sold beer to Brewer without asking for identification and without questioning his age. Brewer is a large, mature youth who, at the time of hearing, looked to be in his mid-20’s. To Dhanani, at the time of sale, Brewer appeared to be “28 or so”. Under the responsible vendor program any customer who appears to be under the age of 30 must be required to present proper identification. Through Capt. Ewing, DABT presented unrebutted evidence that the premises in Lake Mary has been vacated by the licensee, Superette #3, Inc., and a new license was issued to the landlord of the premises. Cancellation of the Superette #3 license is in abeyance pending this proceeding.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Division of Alcohol Beverages and Tobacco enter its final order finding that Respondent committed the violation alleged in the Administrative Action, assessing a fine of $1000.00, and suspending the license for 7 days, or until Respondent has found an approved new location. DONE and ENTERED this 17th day of April 1997 in Tallahassee, Leon County, Florida. MARY CLARK 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 17th day of April 1997. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Steven G. Horneffer, Esquire Suite 109 101 Sunnytown Road Casselberry, Florida 32707 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Did the licensee repeatedly sell alcoholic beverages to persons under the age of 21?
Findings Of Fact At all times material hereto, Respondent, Jayprakash Patel, d/b/a United Discount Beverage, held alcoholic beverage license number 11-00952, Series 2-APS, for a premises known as United Discount Beverage, each side of U.S. Highway 301, Hawthorne, Florida. Joseph Donnelly, a person under the age of 21, purchased alcoholic beverages on April 27, 1990, to wit: three six packs of beer and two bottles of MD 20/20 wine, without identification at United Discount Beverage from Kirtie B. Patel, an employee of the business. Joseph P. Donnelly had purchased alcoholic beverages without identification on previous occasions at United Discount Beverage from Kirtie B. Patel. Madonna Bristow observed Joseph B. Donnelly purchase alcoholic beverages from United Discount Beverages on April 27, 1990 and on several other occasions previous to that date. Mr. Glen Molander observed Joseph P. Donnelly and Madonna Bristow carrying packages from United Discount Beverage on April 27, 1990. A vehicle driven by Joseph P. Donnelly was involved in an automobile accident on April 27, 1990, and was towed to a secured impoundment on that date. His mother, Kathlene L. Donnelly, recovered six cans of beer and two bottles of MD 20/20 wine from the car. Mrs. Donnelly took the beer and wine to her residence where she concealed it. On May 2, 1990, Inv. Jernigan the six cans of beer and two bottles of MD 20/20 wine obtained from the Donnelly's residence. Inv. Jernigan marked these items as evidence and stored in the vault at the Gainesville Division of Alcoholic Beverages and Tobacco District Office. Investigator Jernigan identified at hearing the six cans of beer and two bottles of MD 20/20 wine he had recovered from the Donnelly's residence. Joseph P. Donnelly identified this evidence at hearing as a portion of the alcoholic beverages which he had purchased at United Discount Beverage from Kirtie B. Patel on April 27, 1990. Joseph Donnelly and Madonna Bristow observed many other individuals who they knew to be under twenty-one years old purchase alcoholic beverages from United Discount Beverage without identification. Kirtie B. Patel plead guilty to a charge of selling alcoholic beverages to a person under age 21 in violation of Section 562.11(1)(a), Florida Statutes, Petitioner's exhibit number 1, to wit: underage operative M. Goldtrap on December 14, 1989. Kirtie B. Patel plead nolo contendere to a charge of selling alcoholic beverages to a person under age 21 in violation of Section 562.11(1)(a), Florida Statutes, Petitioner's exhibit number 2, to wit: Joseph P. Donnelly on April 27, 1990. Licensee, Jayprakash Patel, has previously admitted in an administrative proceeding to have been in violation of Section 562.11(1)(a) within Section 561.29(1), Florida Statutes, to wit: three sales of alcoholic beverages by his employees to persons under the age of 21 during the period May 11, 1989 through December 14, 1989. Jayprakash Patel has become a Responsible Vendor since April 27, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the alcoholic beverage license held by Respondent, Jayprakash Patel, d/b/a United Discount Beverage, license number 11-00952, Series 2-APS, be suspended for six (6) months and a $1,000.00 civil penalty be imposed. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. COPIES FURNISHED: Eric S. Haug Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Don Reid Post Office Box 133 Gainesville, FL 32602 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact The Respondents, J. F. Walthier III and Andrew Erickson, are the holders of a current valid beverage license, No. 46-00210, Series 2-APS, held in the name of Walthier, J. F. III and Ericks. This license is for a premises located at 4721 Palm Beach Boulevard, Fort Myers, Lee County, Florida. The Respondents conduct their business at this licensed premises under the name Foam and Fizz. This beverage license series entitled the Respondents to sell a class of alcoholic beverage for consumption off the licensed premises. One of the categories of alcoholic beverages allowed for sale under the terms and conditions of the license is beer. The subject beverage license was issued by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. The Petitioner is charged with the licensure and regulation of the several alcoholic beverage license holders within the State of Florida. In pursuit of its function, the Petitioner has brought an Administrative Complaint/Notice to Show Cause against the named Respondents and the terms and conditions of that complaint may be found in the issue statement of this Recommended Order. The facts in this case reveal that between 9:00 p.m. and 10:00 p.m. on January 25, 1980, three young men under the age of eighteen drove to the licensed premises for purposes of purchasing beer. Once the car was parked, Ira J. Frasure and dames Craig McDowell exited the car. On that date, Ira J. Frasure was seventeen years of age and James Craig McDowell was sixteen years of age. They left Frank Edward Gordon in the automobile, where he would remain during the pendency of the other juveniles' activities in the licensed premises. Once in the store, Frasure retrieved a six-pack of Budweizer beer and McDowell picked up several single cans of Budweizer beer. The beer which had been picked up by the juveniles was presented at the checkout counter to Barbara Joyce Walthier, the wife of one of the licensees and an employee in the licensed premises. At that point, Frasure paid Walthier for the beer from money which he had and money which had been given to him by McDowell. The juveniles then left the store. Neither of the juveniles had been asked for any form of identification prior to the sale of the alcoholic beverages, nor had they been asked about their ages, and they did not make any comment concerning their ages. Frasure's date of birth is September 30, 1962, and at the time of the purchase he was approximately six feet one inch tall and had a mustache. Frasure gave testimony in the course of the hearing and appeared to be eighteen years of age or older at that time. Investigative officers who saw Frasure on January 25, 1980, said they felt he appeared to be less than eighteen years of age. McDowell's date of birth is February 9, 1963, and at the time of the hearing he appeared to be less than eighteen years of age, and this comported with the impression of the investigating officers when they saw him on January 25, 1980. At the time Frasure purchased the beer from the clerk, Barbara Joyce Walthier, she was not busy with other customers to the extent that it would hinder her ability to check the appearance of Frasure and McDowell; however, business on the evening in question had been moderate to heavy at times and she does not remember seeing Frasure and McDowell. Barbara Joyce Walthier was working in accordance with a set of instructions from the licensees, in the person of her husband, to the effect that she should always require written identification prior to purchase from those persons who looked like they should be "carded". Moreover, she had been instructed that those persons who have beards are not normally "carded". Other factors to be considered, per instruction she had been given, were to require written identification from those persons who acted suspiciously while in the store, or who parked a great distance away from the store after driving slowly by. In keeping with these instructions, she routinely requires written identification from patrons. Finally, there was a sign in the licensed premises which stated, "Under age don't ask".
Recommendation In view of the fact that this is a single count violation and in view of the physical appearance of Ira J. Frasure at the time of the alcoholic beverage purchase in question, that appearance leading one to believe that he was eighteen years of age or more, it is RECOMMENDED that the Respondents be required to pay a fine in the amount of one hundred fifty dollars ($150.00) in lieu of suspension or revocation and it is FURTHER RECOMMENDED that if this civil penalty is not paid within thirty (30) days of the rendition of the final order, that the Respondents' beverage license be suspended for a period of fifteen (15) days. DONE AND ENTERED this 20th day of May, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee Florida 32301 (904) 488-9675 COPIES FURNISHED: James N. Watson, Esquire Office of General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Allan Parvey, Esquire 2201 Main Street Post Office Box 2366 Fort Myers, Florida 33902
The Issue The issue presented is whether Respondent Willie Lee Lewis d/b/a LS Lounge is guilty of the allegations contained in the notice of Administrative Action filed against him, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact Respondent Willie Lee Lewis d/b/a LS Lounge is the holder of alcoholic beverage license No. 53-01765, series 2-COP, authorizing him to operate as a vendor of alcoholic beverages. On May 31, 1996, Respondent filed with the Department his Application for Alcoholic Beverage License and Cigarette Permit and its accompanying Personal Questionnaire form. The Personal Questionnaire form contains a question asking if the applicant has ever been arrested or charged with any violation of the law other than minor traffic violations, and, if so, whether the applicant was convicted. Respondent answered "yes" to the first part of the question and "no" to the second part and added a notation that "adjudication was withheld." At the bottom of that series of questions, the form requests full particulars for any "yes" answer and lists the type of information requested, only a portion of which is legible on the copy of the form admitted in evidence. On this portion of the application, Respondent wrote "Martin County Sherifs [sic] Department." On April 14, 1992, Respondent was charged by Information in the Martin County Circuit Court, Case No. 92-352 CFA, with one count of unlawfully selling, delivering, or possessing with the intent to sell or deliver a controlled substance, cocaine. The second count alleged that Respondent unlawfully used or possessed with the intent to use drug paraphernalia, i.e., a razor blade. Respondent pled nolo contendere to count one, possession of cocaine. On December 9, 1992, the Court entered its Order Withholding Adjudication of Guilt and Placing Defendant on Drug Probation, placing Respondent on probation for a period of two years. When Respondent was completing his application for a beverage license, he went to the Department's offices in Martin County on several occasions. Department employees assisted him in completing his application. Respondent was concerned as to whether he was eligible for licensure due to the arrest which resulted in adjudication being withheld. He discussed that concern with the Department's employees in its Martin County office. The lady he spoke with did not know if Respondent could obtain a beverage license if adjudication had been withheld. She telephoned the Department's Tallahassee office regarding that question and then advised Respondent that he was not precluded from licensure. Respondent submitted certified copies of the Information and of the Order Withholding Adjudication of Guilt. The Department issued a beverage license to Respondent in May 1996, and Respondent set up his business. He entered into a lease for the business premises at a cost of $1,000 a month and spent $5,000 to $6,000 renovating the premises. He leased a big- screen T. V. at a cost of $200 a month. He purchased D. J. equipment for $8,000. He purchased inventory, hired employees, and began advertising. It costs Respondent approximately $1,800 a week to operate the business. He has a one-year contract for radio advertising and renewed the lease for his business premises for another year in May of 1997. It is the policy of the Department to determine on a case-by-case basis whether a person who has a criminal history should be given a license. The Department does issue licenses to persons who have been charged with a crime, have pled nolo contendere to those charges, and have had adjudication withheld and been placed on probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent not guilty of the allegations against him and dismissing the notice of Administrative Action. DONE AND ENTERED this 12th day of September, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 12th day of September, 1997. COPIES FURNISHED: Leslie Anderson-Adams, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Iola Mosley, Esquire Whitfield & Mosley, P.A. Post Office Box 34 West Palm Beach, Florida 33402 Lt. Bob M. Young 800 Virginia Avenue, Suite 7 Fort Pierce, Florida 34982 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Richard Boyd, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399
The Issue By notice to show cause, petitioner charged that respondent, individually or through the acts of its agent/employee, violated the provisions of Section 562.11(1)(a), Florida Statutes, by selling an alcoholic beverage on its licensed premises to a person under the age of 21. Respondent requested a formal hearing on the charges, and the matter was referred to the Division of Administrative Hearings. At the hearing, petitioner called three witnesses and offered three exhibits which were admitted into evidence. Respondent testified on his own behalf and offered no exhibits. A transcript of the hearing was not ordered, and the parties were granted leave until August 21, 1989 to file proposed findings of fact. Petitioner timely filed proposed findings of fact and conclusions of law. A ruling on each of petitioner's proposed findings of fact has been made and is reflected in the Appendix to this recommended order. On August 24, 1989, respondent filed a letter which is here deemed to be his proposed findings of fact; however, his filing was untimely.
Findings Of Fact At all times material hereto, respondent, Coast Line Petroleum, Inc. d/b/a Toms Texaco, held an alcoholic beverage license number 60-04813, series 2- APS for the premises known as Toms Texaco in Lantana, Florida at 401 N. Dixie Highway. Mr. Thomas Przybylski is the President of respondent and appeared on behalf of the licensee. On or around April 4, 1989, petitioner's investigator conducted an investigation of respondent's licensed premises to determine if respondent was selling alcoholic beverages to underaged persons. The investigation was prompted by complaints received by petitioner from the Lantana Police Department. Petitioner's practice in making such investigations was to employ an underaged person and send the underaged person onto the licensed premises to purchase an alcoholic beverage. The underaged person was instructed not to carry any form of identification and to respond truthfully if asked his age or for identification. Julio A. More was employed by petitioner as an Investigative Aide. On April 4, 1989, following petitioner's instructions, Mr. More, who was eighteen at the time and appeared to be no older than his age, entered the licensed premises at issue. It was a busy afternoon at Toms Texaco. Mr. More picked a beer out of the inventory and attempted to purchase it from Mr. Przybylski, who was working that afternoon. Mr. Przybylski asked Mr. More if he had any identification to which Mr. More replied that he had none. Mr. Przybylski then sold Mr. More the beer. Petitioner's investigator witnessed the sale and confiscated the tendered beer. Mr. Przybylski as an employee and officer of respondent sold an alcoholic beverage to an individual who was eighteen at the time of the sale. Accordingly, respondent is guilty of selling an alcoholic beverage to a person under 21 years of age. The proof demonstrated that petitioner has promulgated disciplinary guidelines for offenses similar to the one at issue; and that the appropriate penalty in this case would be the imposition of a fine of $1,000 and twenty-day suspension of the license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on respondent an administrative fine of $1,000 and suspending respondent's license for a period of twenty days. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of September 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO.89-3006 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraphs 3 and 4. Addressed in paragraph 4. Irrelevant. Adopted in paragraph 5. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Thomas John Przybylski, Jr. Coast Line Petroleum, Inc. 10670 Cypress Bend Drive Boca Raton, Florida 33498 Lt. Debbie Pfitzenmaier Elisha Newton Dimick Building 111 Georgia Avenue, Room 207 West Palm Beach, Florida 33401 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey Director The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact The Tanga Lounge, operated by Respondent Rodde Inc., is located at 6333 West Columbus Avenue, Tampa, Florida. This facility has been licensed by Petitioner at all times relevant to these proceedings. Respondent's records show Mr. Joe Redner as the sole stockholder and corporate officer of Rodde, Inc., which is the holder of alcoholic beverage license No. 39-738. Case No. 81-2566 contains three counts of begging or soliciting for alcoholic beverages by employees of Respondent on August 6, 1980. Testimony by former Beverage Officer White established that the solicitations of three drinks by two employees were made as charged in the Notice to Show Cause. White purchased the drinks as requested by these employees, who received a "ticket" for each of the drinks purchased for them by White. Case No. 81-2567 contains 44 counts of begging or soliciting drinks by various employees of Respondent and 44 counts charging that Respondent conspired with these employees for the purpose of soliciting drinks. These charges are primarily based on the investigations of Beverage Officers Gary Hodge and Michael Freese. The period of their investigation was October 17, 1980 through May 15, 1981. Count 52 was based on a solicitation of Detective Phil Mickel of the Tampa Police Department, who was in the licensed premises in an undercover capacity on November 6, 1980. At the request of dancer-employee Cathy Andrews, Mickel purchased a "double" for her and observed that she received two tickets from the waitress. 5 Former Tampa Police Department Detective Nick Haynes was in the licensed premises on November 6, 1980, and was approached by the dancer-employee, Cheryl Jonas, who requested that Haynes purchase a drink for her. He did so. This transaction occurred as charged in Count No. 51. Beverage Officer Freese individually and in conjunction with Beverage Officer Hodge, accounted for 38 solicitation charges (Counts 53-57, 59-63, 66, 68-88, and 163-167) . The solicitations charged in Counts 53, 55, 71-80, 83, - 84, 88, 163, 166 and 167 occurred as alleged and involved direct requests for the purchase of drinks ("Will you buy me a drink," or words of similar import) . Freese observed employees receive tickets for these drinks from the bartender or waitress in most instances. The solicitations charged in Counts 54, 56, 57, 59-63,66, 68-70, 81, 82, 164 and 165 were not supported by evidence of direct requests for the beverage purchases by employees of Respondent. At a meeting held about December 17, 1980, Beverage Officers Freese and Hodge were instructed by their supervisor to require that dancers request drinks before ordering. This procedure was adopted to avoid situations where the beverage officer was not asked to buy a drink, but eventually received the bill for the dancer's drink. In implementing the instructions, Freese used these or similar words: "If you want a drink, ask for it.", This statement possibly misled the dancers to believe that Freese was inviting them to order whenever they wanted drinks. The date when Freese first used this statement was not established, but it was subsequent to the mid-December meeting. It was noted that Freese was not solicited during the first two months of the investigation. Therefore, all or substantially all of the solicitation charges involving Freese took Place after he first issued the "invitation." Beverage Officer Hodge individually testified as to solicitation Counts 58, 64, 65 and 67. Counts 58, 65 and 67 did not involve a direct request for beverage purchase. Count 64 occurred as alleged and was based on a direct request for beverage Purchase ("Why don't you buy me one now?"). This request was made during the early morning of January 13, 1981. Although this was after the December meeting which Hodge attended, it was not shown that he made any statement which could have been interpreted as an "invitation" by any employee of Respondent. The fact that customers regularly Purchased drinks for the dancers was well known to the management as evidenced by the tickets issued to employees for drinks purchased in their behalf. These tickets were redeemable by the dancers for one dollar each. Thus, employees were rewarded and implicitly permitted to solicit drinks. Respondent's announced policy was, however, to reprimand or discharge any employee who was caught begging or soliciting drinks. This policy was attested to by bartenders; former employees and dancers. Although it cannot be found that Respondent actively encouraged its employees to solicit drinks, it did encourage socializing with customers to a degree which would elicit offers to purchase drinks for them. Respondent has since discontinued the practice of issuing tickets or other employee incentives to obtain customer purchased drinks. Counts 127 through 161 involve drug charges. Purchases were made by Beverage Officer Freese and Hedge, individually and together. Their testimony and that of Florida Department of Law Enforcement Crime Lab personnel established that controlled substances were purchased from dancer-employees of Respondent on the licensed premises as charged in Counts 127 through 137, 156 and 158. The transactions which-were established to have been carried out involved cocaine, methaqualone and cannabis deliveries by dancer-employees Margie Wade, Janie Marsie, Lori Basch and Lisa Scibilia on February 21, 24, 27; March 2, 9, 13, 17, 23; May 13, 15, 1981. It should be noted that Counts 136 and 137 actually involved one transaction where Hodge and Freese split the delivery. Count 161 concerned a transaction outside the licensed premises and this count, as well as Count 158, involved an employee of another establishment. Petitioner's Exhibit 43 and the supporting testimony concerned a transaction for which there was no charge. Counts 138 through 151, 154 and 159-161 alleged conspiracies to deliver controlled substances corresponding to other counts which alleged actual deliveries. There was testimony on the involvement of third person (not shown to be associated with the Respondent) only as to Counts 134, 146, and 147, which essentially covered a single transaction. No other evidence of conspiracy was presented. On one occasion, Redner was in the Tanga Lounge and within about 15 feet of the beverage officer and the dancer when the delivery took place. However, there was no evidence that Redner was involved or that he had any knowledge of the transaction. Testimony by a former employee that Redner participated in drug use was lacking in credibility and was not corroborated. Counts 3 through 30 and 33 through 50 are charges of lewd dancing by employees of Respondent on the licensed premises. The charges cover 46 dances on 12 separate dates between October, 1980, and February, 1981, performed by 11 different dancer-employees. The acts complained of in these counts were witnessed and attested to by Beverage Officers Hodge and Freese and Tampa Police Department Detective Mickel. The alleged lewd conduct included exposing of the breasts, vagina and anus by dancers during their on-stage performances. Typically, the dancers received dollar tips which customers placed in their bikini bottoms. Some dancers allowed customers to reach inside the bikinis in order to touch their pubic areas. On several occasions the dancers squatted and picked up the dollar bills with their exposed genital areas. On December 11, dancer Cathy Andrews rubbed her vagina, then rubbed the genital area of Beverage Officer Freese, who was observing the dance. Mr. Redner was present during much of the alleged lewd conduct. Although Redner testified that "flashing" was acceptable, the exposure of sexual organs as attested to was not limited to brief "flashes," but was prolonged. Further, Respondent's contention that dancers receiving tips tried to avoid contact by customers is not credible. Rather, the testimony of the officers established that dancers frequently encouraged customers to place their hands against the dancers pubic areas when offering tips. Respondent's, lounge is advertised as an adult entertainment facility and is generally known to include nude dancing. There was no competent evidence as to community standards for this type of conduct in the Tampa area, nor was there any evidence that these acts shocked or offended anyone present other than the investigating officers. Detective Mickel conceded that about five other bars he has visited offer this type of entertainment. Counts 31 and 32 concern an offer of prostitution by one of the dancer-employees to the beverage officers. Their testimony established that the offer was made as charged. This was, however, a single incident and there was no evidence that such offers were recurring or that Respondent had knowledge of this transaction. Counts 1 and 2 of Case No. 81-2567 allege that Robert Rodriguez holds an undisclosed interest in the licensed premises. Such interest, if any, was not reflected in the license transfer application submitted on April 23, 1976. Rather, Joseph Redner and Joe DeFriese were identified as the sole stockholders with no direct or indirect interest held by any other person. Rodriguez previously owned an interest in Deep South Plantation Foods, Inc., whose alcoholic beverage license was revoked by Petitioner. Redner was at one time employed by Rodriguez as manager of Deep South Petitioner asserts that Rodriguez became ineligible to hold an interest in an alcoholic beverage license as a result of the revocation, pursuant to Section 561.15, Florida Statutes, and that he and Redner therefore concealed Rodriguez's subsequent interest in the Tanga Lounge. Respondent contends that Rodriguez is the manager of the Tanga Lounge, but holds no direct or indirect interest therein. Rodde, Inc., was organized on April 19, 1976, and a $2,000 down payment deposit on the contract for purchase of the Tanga Lounge and liquor license was made on April 20, 1976, pursuant to contract signed by DeFriese and the prior owners on that date. This $2,000 check was issued by Robert Rodriguez against his own account. Petitioner produced this cancelled check (Petitioner's Exhibit 4) and numerous other documents which establish that Rodriguez participated in all aspects of Rodde, Inc., management and financial operations since its inception. Rodriguez has unrestricted authority to withdraw funds from corporate accounts and has signed or cosigned for loans and credit purchases. Rodriguez also utilized a Rodde, Inc., credit card to pay personal expenses on a vacation to Las Vegas in 1979. There was no evidence of reimbursement or other accounting to the corporation for these expenditures. The testimony of the Rodde, Inc., employees did not corroborate Redner's testimony that Rodriguez is manager of the Tanga Lounge. Rather, these employees believed Rodriguez was somehow associated with the business, but regarded Redner as the manager and their only supervisor. Rodriguez issued two checks for $1,408.05 on December 1, 1979, one payable to himself and the other to Redner (Petitioner's Exhibit 32) . These checks each carried the notation "bonus $1500", with a further notation apparently accounting for $91.95 in withholding tax. In view of Rodriguez's duties and functions within the corporation, this "bonus" can only be considered a participation in profits. Redner's credit rating and financial management skills are poor. Therefore, Respondent contends that a manager with strength in these areas was needed to ensure business success. However, Rodriguez's unlimited authority in dealing with corporate funds, the investment or loan of his personal funds, his participation in business profits and the absence of any apparent supervisory duties are inconsistent with the employee theory held out by Respondent.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent be found guilty of the charges contained in Counts 1, 2 and 3 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2566. It is further RECOMMENDED that Respondent be found guilty of the charges contained in Counts 1, 2, 31, 32, 51, 52, 64, 127-137, 156, and 158 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2567. It is further RECOMMENDED that all other charges be dismissed. It is further RECOMMENDED that Respondent's Alcoholic Beverage License No. 39-738 be revoked. DONE and ENTERED this 9th day of July, 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 9th day of July, 1982.
