The Issue Whether the Application for Alcoholic Beverage License dated March 9, 1988, filed by Ocie C. Allen, Jr., should be approved by the Respondent?
Findings Of Fact Ocie C. Allen, Jr., d/b/a OCA, filed an Application for Alcoholic Beverage License dated March 9, 1988 (hereinafter referred to as the "Application"), with the Division. In the Application, Mr. Allen indicated under "Type of Application" that the Application type was "Other - ownership change because of contract and change of location." Mr. Allen listed himself as the "Applicant" and signed the Application as the "Applicant." The "Current License Number" listed in the Application to be transferred to Mr. Allen is 62-03498, current series 4 COP. The holder of this license was Terri Howell. At the end of the Application there is an "Affidavit of Seller(s)" to be executed by the licensee from whom the license is to be transferred. This affidavit has not been completed in the Application. The purchase price for the business was listed as $86,250.00. By letter dated March 16, 1988, the Division returned the Application to Mr. Allen and informed him that it was being returned for the following reasons: (1.) Need copy of loan in the amount of $86,250.00. (2.) If there are other agreements concerning this change, we will need copies. (Closing Statements) (3.) Need Affidavit of Seller signed by Ms. Howell making sure signature has been notarized on both applications. (4.) If no business name, please use applicants [sic] name also in that blank. Mr. Allen returned the Application to the Division with a letter dated March 21, 1988, and indicated, in part, the following: The Loan of $86,250.00 is 75% of the appraised value for which a 4 COP license was sold in Pinellas County prior to Ms. Howell winning the drawing. This amount is reduced by the amounts she has received from the operation of Spanky's. Thereby the actual amount owed by me to Ms. Howell is $86,250.00 LESS the amount she has received during the operation of Spanky's, approximately, $60,000.00. The Application was not modified by Mr. Allen. In a letter dated March 24, 1988, the Director of the Division requested the following additional information from Mr. Allen: (1.) Need Affidavit of Seller signed by Ms. Howell making sure signature has been notarized on both applications. (2.) Complete (No.5) Type of License Desired: (Series ). By letter dated March 28, 1988, Mr. Allen responded as follows to the Division's request for information: Enclosed is the application for transfer. Ms. Howell signature [sic] on the Independent [sic] Contractor Agreement is the only signature of hers that will be furnished to you. By letter dated April 4, 1988, the Division informed Mr. Allen that Terri Howell, the licensee, needed to sign the Affidavit of Seller. The Division notified Mr. Allen that it intended to deny the Application in a letter dated May 31, 1988. Mr. Allen was provided a Notice of Disapproval of the Application in a letter dated June 29, 1988. The following reasons were given for denial of the Application: Application to transfer the license does not bear the signature of the current licensee and, therefore does not evidence a bonafide [sic] sale of the business pursuant to [Section] 561.32, Florida Statutes. Application incomplete as applicant has failed to provide complete verification of his financial investment. Also, applicant has failed to provide records establishing the annual value of gross sales of alcoholic beverages for the three years immediately preceding the date of the request for transfer. The Division is, therefore, unable to fully investigate the application pursuant to Florida law. By letter dated July 19, 1988, Mr. Allen requested a formal administrative hearing to contest the Division's denial of the Application. Mr. Allen sent a letter to the Division dated October 27, 1988, with an Affidavit requesting permission to pay a transfer fee of $5,000.00 "in lieu of the 4-mill assessment."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case dismissing the case with prejudice. DONE and ENTERED this 17th day of January, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1989. COPIES FURNISHED: Ocie C. Allen, Jr. Post Office Box 10616 Tallahassee, Florida 32302 Lt. B. A. Watts, Supervisor Division of Alcoholic Beverages and Tobacco Department of Business Regulation 345 S. Magnolia Drive, Suite C-12 Tallahassee, Florida 32301 Harry Hooper Deputy General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927
The Issue Whether Respondent committed the violations alleged in the Administrative Action, and, if so, what disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a restaurant, Dinosaur's Café and Sports Bar, located in Boynton Beach, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a Special Restaurant License (license number 60-11570 4COP SRX) authorizing it to sell alcoholic beverages on the premises of Dinosaur's Café and Sports Bar. On September 28, 1999, DABT Special Agent Jennifer DeGidio conducted an inspection of the premises of Dinosaur's Café and Sports Bar. Her inspection revealed that the premises had available seating for less than 150 patrons and that there were no records on the premises regarding the purchase and sale of food, alcoholic beverages, and non-alcoholic beverages. At no time had DABT given Respondent written approval to maintain these records at a designated off-premises location. During her September 28, 1999, inspection, Special Agent DeGidio issued and served on Respondent notices advising Respondent that its failure to have seating for at least 150 patrons and to maintain food and beverage records on the premises for a minimum of three years from the date of sale was in violation of the law and that, if these violations were not remedied within 14 days, administrative charges would be brought against Respondent. Special Agent DiGidio returned to the premises of Dinosaur's Café and Sports Bar on October 12, 1999, to find that the noticed violations had not been corrected. There were still fewer than 150 seats for patrons, and Respondent was again unable to produce the required records on the premises. The Administrative Action that is the subject of the instant controversy was issued on November 16, 1999. As of that date, Respondent had failed to timely remit to DABT $16.75 in surcharge monies that Respondent owed DABT for alcoholic beverages it had sold at retail for on-premises consumption at Dinosaur's Café and Sports Bar.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that DABT enter a final order finding Respondent committed the violations alleged in the Administrative Action, and disciplining Respondent therefor by revoking its license "without prejudice to obtain any other type of license, but with prejudice to obtain the same type of special license for 5 years"; fining Respondent $1,000.00; and requiring Respondent to pay the $16.75 in surcharge monies it owes DABT, plus applicable penalties and interest. DONE AND ENTERED this 21st day of August, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2001.
The Issue Whether the Application for Alcoholic Beverage License dated April 14, 1988, filed by Ocie C. Allen, Jr., should be approved by the Respondent?
Findings Of Fact Ocie C. Allen, Jr., d/b/a OCA, filed an Application for Alcoholic Beverage License dated April 14, 1988 (hereinafter referred to as the "Application"), with the Division. In the Application, Mr. Allen indicated under "Type of Application" that the Application type was "Other - ownership change because of contract." Mr. Allen listed himself as the "Applicant" and signed the Application as the "Applicant." The "Current License Number" listed in the Application to be transferred to Mr. Allen is 15-1924, current series 3 PS. The holder of the license was Thomas Tripp. At the end of the Application there is an "Affidavit of Seller(s)" to be executed by the licensee from whom the license is to be transferred. This affidavit has not been completed in the Application. The purchase price for the business was listed as $86,250.00. In a letter dated April 22, 1988, the Director of the Division requested the following additional information from Mr. Allen: Affidavit of seller must be signed by Thomas Tripp and notarized. Documentation as to the source of funds invested must accompany this application. The transfer fee on quota license is assessed on the average annual value of gross sales of alcoholic beverages for the three (3) years immediately proceeding transfer and is levied at the rate of four (4) mills, and in no event exceeds $5,000. The parties may elect to pay the $5,000 transfer fee or submit documents (usually sales tax records), which will establish gross sales in order to compute the transfer fee. By letter dated May 2, 1988, Mr. Allen responded as follows to the Division's request for information: Mr. Tripp has signed the Independent Contractor Agreement which is the affidavit of seller. Source of funds comes from Mr. Tripp as per the Independent Contractor Agreement. The sales tax receipts will be submitted upon approval pending payment of transfer fee. The Division notified Mr. Allen that it intended to deny the Application in a letter dated May 9, 1988. Mr. Allen was provided a Notice of Disapproval of the Application in a letter dated June 29, 1988. The following reasons were given for denial of the Application: Application to transfer the license does not bear the signature of the current licensee and, therefore does not evidence a bonafide [sic] sale of the business pursuant to [Section] 561.32, Florida Statutes. Application incomplete as applicant has failed to provide complete verification of his financial investment. Also, applicant has failed to provide records establishing the annual value of gross sales of alcoholic beverages for the three years immediately preceding the date of the request for transfer. The Division is, therefore, unable to fully investigate the application pursuant to Florida law. By letter dated July 19, 1988, Mr. Allen requested a formal administrative hearing to contest the Division's denial of the Application. Mr. Allen sent a letter to the Division dated October 27, 1988, with an Affidavit requesting permission to pay a transfer fee of $5,000.00 "in lieu of the 4-mill assessment."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case dismissing the case with prejudice. DONE and ENTERED this 17th day of January, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1989. COPIES FURNISHED: Ocie C. Allen, Jr. Post Office Box 10616 Tallahassee, Florida 32302 Lt. B. A. Watts, Supervisor Division of Alcoholic Beverages and Tobacco Department of Business Regulation 345 S. Magnolia Drive, Suite C-12 Tallahassee., Florida 32301 Harry Hooper Deputy General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927
Findings Of Fact The Respondent, Cornelia T Brown, doing business as the Oasis Restaurant Bar and Lounge, is the holder of beverage license No. 45-356, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located on Douglas Road, Groveland, Florida. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has its responsibility the licensure and regulation of beverage license holders in the State of Florida. On June 12, 1980, pursuant to a search warrant, Lake County Sheriff and Groveland Police officials accompanied by Petitioner's Beverage Officer, conducted a search of the licensed premises. Respondent was present throughout the investigation. Among the items seized as suspected controlled substances were seven plastic baggies and eight small manila envelopes containing a total of 52.1 grams of cannabis. Currency in the amount of $2,273,67 was also seized. The cannabis and currency were contained in a purse belonging to Respondent. The purse was discovered in the kitchen of the licensed premises, an area not open to bar/restaurant patrons or other members of the public.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2 and 4. It is further RECOMMENDED that County 3, which duplicates County 2, and Count 5, be DISMISSED. It is further RECOMMENDED that Respondent's License No. 45-356 be REVOKED. DONE AND ENTERED this 30th day of September 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September 1981. COPIES FURNISHED: Cornelia T. Brown Route 1, Box 350-7 Groveland, Florida 32736 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether, on four separate occasions, agents, servants, or employees of respondent sold alcoholic beverages to persons under 19 years of age, in violation of Section 562.11, Florida Statutes, as alleged in petitioner's Notice to Show Cause.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 16-2587, Series 2-APS, be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 6th day of May, 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 6th day of May, 1983. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Don Allen, Esquire 600 S.W. 4th Avenue Ft. Lauderdale, Florida 33315 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Recommendation Based upon Petitioner's failure to appear, it is RECOMMENDED THAT: A default be entered against Petitioner and a final order be issued denying Petitioner's application for a beverage license. RECOMMENDED this 18th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1980. COPIES FURNISHED: Mr. Melvin Stewart c/o Mel's Beer & Wine Lounge 301 N.E. 62nd Street Miami, Florida Dennis E. LaRosa, Esquire Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32301 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32301
The Issue Whether respondent's alcoholic beverage license should be disciplined on the charge that it violated Sections 212.15(2)(b) and 561.29(1)(a), Florida Statutes (1981), by failing to remit taxes collected pursuant to Chapter 212, Florida Statutes (1981).
Findings Of Fact On May 4, 1981, respondent was issued alcoholic beverage license No. 16-2232 SRX, Series 4 COP. The license has now expired. (Testimony of Boyd; P- 1.) On June 26, 1951, the Florida Department of Revenue issued a warrant for the collection of delinquent sales and use tax due and unpaid by respondent. The warrant states that respondent is indebted to the Department of Revenue for delinquent sales tax, penalty, and interest, totaling $22,710.66. This indebtedness remains outstanding and unpaid. (Testimony of Fox; P-2.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the notice to show cause filed against respondent be dismissed. DONE AND RECOMMENDED this 15th day of September, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1982.
Findings Of Fact Petitioner originally held alcoholic beverage license no. 26-532, Series 4-COP, as an individual. He transferred this license to M & S, Inc., a Florida corporation, about one year ago. Petitioner is a 50 percent shareholder in this corporation. Jimmy G. Maddox holds the other 50 percent stock interest. Petitioner and Maddox are currently engaged in civil litigation involving the corporate licensee. Respondent referred to this civil suit in its notice disapproving the transfer application, citing the pending litigation as a basis for disapproval. Petitioner has not purchased the license from the corporation or entered into any agreement in contemplation of license transfer. Rather, he believes he is entitled to the return of the license because he received no consideration for the prior transfer from either the corporation or Maddox. Alternatively, Petitioner asks that the prior transfer to the corporation be set aside due to this lack of consideration.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a Final Order denying Petitioner's request for transfer of alcoholic beverage license no. 26-532, Series 4-COP. DONE and ENTERED this 6th day of April, 1982 in 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 6th day of April, 1982. COPIES FURNISHED: James A. Fischette, Esquire Suite 1916 Gulf Life Tower Jacksonville, Florida 32207 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Herbert T. Sussman, Esquire 3030 Independent Life Building Jacksonville, Florida 32202 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue The first issue presented is whether Respondent failed to derive at least 51 percent of its gross revenue from sales of food and non-alcoholic beverages during the period of September 1, 1999 through October 31, 1999, contrary to Section 561.20(2)(a)4, Florida Statutes, and Rule 61A-3.0141, Florida Administrative Code. The second issue presented is whether during the period of November 1, 1999, through October 31, 1999, Respondent failed to maintain and/or produce separate records of all purchases and gross retail sales of food and non-alcoholic beverages and all purchases of gross retail sales of alcoholic beverages, to wit: numerous register summaries, Z tapes, contrary to Section 561.20(2)(a)4, Florida Statutes, and Rule 61A-3.0141, Florida Administrative Code. The third issue presented is whether during the period of April 1, 1999, through May 31, 1999, the Respondent failed to maintain and/or produce separate records of all purchases and gross retail sales of food and non-alcoholic beverages and all purchases of gross retail sales of alcoholic beverages, to wit: records provided failed to include cash bar sales, contrary to Section 561.20(2)(a)4, Florida Statutes, and Rule 61-3.0141(3) (a)2, Florida Administrative Code.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the agency charged with the responsibility of administering and enforcing the beverage law of the State. Chapters 561-568, Florida Statutes. At all times material to this proceeding, Respondent, Dawson, Fabrizzi, & Fletcher, Inc., d/b/a C.J. Oscars, operated a licensed restaurant business located at 1502 Miramar Street, Cape Coral, Florida, 33904. The corporate officers are Charles Dawson, president; Albert N. Fabrizzi, Vice-President; and Jack Allen, manager of C. J. Oscars. At all times material to this proceeding, Respondent applied for and was holding a series SRX4COP Alcoholic Beverage License Number 46-04601, which authorized the sale of beer, wine, and liquor for consumption on the licensed premises of the restaurant business. The designation "SRX" identifies a beverage license issued to a business operating [primarily] as a restaurant. Respondent's SRX license authorized the sale of alcoholic beverages on the premises, so long as at lease 51 percent of the gross revenue is derived from the sale of non-alcoholic beverages and food. Respondent was made aware of the 51 to 49 percent gross revenue requirement when Charles Dawson applied for the SRX license. Indeed, the application for the SRX license,1 signed by Charles Dawson, specifically noted these requirements and the necessity to maintain a record of compliance. Accordingly, Charles Dawson knew, or should have known, that he would need purchase and sale records to show, upon demand, the SRX-imposed percentage requirements were met by the licensee. Required statutory and rule compliance are made known to each SRX license holder and are strictly imposed upon each licensee.2 Section 561.20(2)(a)4, Florida Statutes, and Rule 61A-3.0141, Florida Administrative Code, clearly and unequivocally states that records of all purchases and gross retail sales are required to be kept, in legible English language, by each licensee and are made available upon demand by the DABT. To enforce the above requirements, DABT performs periodic audits of all restaurants holding a special SRX license. As a part of that audit process, Special Agents from DABT conduct undercover visits and announced visits, as is its normal custom and practice. Between May and October 1999, Steven Tompkins, District Supervisor, Fort Myers office, DBAT, testified to making undercover visits to C.J. Oscars Restaurant on five to fifteen different occasions. During one or more of those visits, he observed Monday night drink specials where patrons who spent $5.00 on any combination of food/drink were given a plastic cup along with their initial order. Thereafter, and for the remainder of the evening, drinks were sold to cup holders for $0.25 per drink. On several other occasions, he observed money paid at the bar for cash sales of alcoholic drinks go directly into the pocket of the bartender, Mr. Allen. On other occasions, he observed Mr. Allen ring-up money on the bar cash register for both food and alcoholic drinks. On occasions while he sat at the bar, he observed cash sale money rung up on the cash register and the actual receipt of the sale thrown into an ice bucket under the bar. Mr. Tompkins, based upon his 25 years of experience, his observations, personal purchases and knowledge of the business operation, believed that Respondent was selling more alcoholic beverages than food. Ms. Debra Martin initially visited Respondent's restaurant on or about May 19, 1999, and after identifying herself as an agency employee requested access of food purchase records for April and May 1999 and was informed that the requested records were kept off premises.3 Ms. Martin testified that during September 1999 she requested bank statements and guest checks. Respondent could not provide guest check, and informed Ms. Martin that some guest checks were no longer kept. Ms. Martin's request for "Z" tapes went unanswered at that time. The Agency introduced in evidence Respondent's income statement4 for the four-month period, January 1, 1999, through May 31, 1999, which indicated that Respondent sold 51.20 percent alcohol and 48.80 percent food during that four-month period of time. David Cary (Respondent's bookkeeper) testified that C.J. Oscars had opened the business the third week of March 1999, and Respondent's income statement related to the nine-week period from the third week of March 1999 to May 31, 1999. Mr. Cary testified that C.J. Oscars had met its required sale percentages for the eight-week period of April 1, 1999, through May 31, 1999. Jack Allen, III, manager of C.J. Oscars, and Michael Batson, register expert, both testified that register Z tapes record each register transaction in sequential numbering, with the initials G.T., meaning grand total. Both witnesses testified that the register records a running total of the purchases entered and this information is recorded on the Z tapes of each register. Mr. Allen, regarding missing Z tapes, testified that during a new employee training, the trainee would practice register operation by running a Z tape, and he limited a new employee's training sessions to use of only two Z tapes. Mr. Allen concluded his testimony by stating that cash bar receipts were often thrown into a bucket on the bar, and as bar manager he would check the cash receipts against other records each morning, tally totals by pencil, and throw the cash receipts away. Special Agent, Jim Lanza testified that of the Z tapes provided by Respondent, in response to the Agency demands, he organized into charts.5 The charts showed which Z tapes were missing, to wit: September 2, 1999, beginning with Z tape number 134 which was provided; the following sequentially number tapes were missing, 136, 137, 139, 140, 141. For October 1, 1999, beginning with Z tape number 228 which was provided, the following are examples of missing tapes, 229, 230, 232, 233. Mr. Lanza's charts, using the grand total of the beginning lower-numbered Z tape as the base, subtracted the beginning grand total from the next sequential grand total provided, with the resulting difference reflecting unreported sales. From this charting sequence, Mr. Lanza concluded that Respondent's unreported sales from missing Z tapes was $65,133.08 for the months of September 2, 1999, through October 31, 1999. Charles Dawson testified in agreement with the testimony of his bar manager, Mr. Allen, regarding the use of Z tapes, the training of new employees, and cash receipts having been placed in a water bucket on the bar and later being thrown away. Mr. Dawson's additional reasons for the missing Z tapes, while questionable, demonstrated a persistent and recurring pattern of a lack of diligence or a practiced disregard for consequences. According to Mr. Dawson, he read and signed the SRX license affidavit, but now claims he did not understand, nor did anyone explain to him what "specific type of records" he was required to keep.6 As to cash bar sales receipts, Mr. Dawson testified that they were added together with other sales, stapled to the guest checks for a running total, compared with the Z tapes totals and cash in register totals, and then thrown away. Regarding the missing Z tapes, Mr. Dawson testified that one of his registers had broken down, and was repaired and when back in operation, the Z tape numbering system was sequentially misaligned and returned to zero; thus, the missing Z tapes. On another occasion, lighting struck a register causing it to jam and render two or more Z tapes unreadable; they were thrown away. During the few days the registers were down, either he or Mr. Allen would go to each register drawer, at the end of the business evening, take the cash totals, and give that information to Mr. David Cary, bookkeeper. Charles Dawson, owner, knew of the mandatory requirement to maintain records of all gross sales of food and non-alcoholic beverages, separate records of all gross purchases of alcoholic purchases, and separate records of all gross retail sales of alcoholic beverages. Charles Dawson, by his actual participation in the wrongful destruction of records, permitted, approved, and condoned the continuous destruction by Ray Allen of cash sale receipts of alcoholic beverages and the destruction of register Z tapes resulting from the sale of food and alcoholic beverages by C. J. Oscars.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of the penalty guidelines in Rule 61A-2.022, Florida Administrative Code, it is recommended that the Department of Business and Professional Regulation enter a final order revoking Respondent's Alcohol Beverage License SRX4COP Number 46-04601. DONE AND ENTERED this 13th day of April 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 13th day of April, 2001.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Action and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Café was a restaurant, serving full course meals, and was located at 1599 North State Road 7, Lauderhill, Florida. At all times material hereto, the sole owner of Café was Mary Fernand. On December 18, 2003, Café, through Ms. Fernand, made application for a license from DABT. The type of license applied for was a retail alcoholic beverage license, in particular a special alcoholic beverage license, allowing it to purchase and sell alcoholic beverages. In a section of the application, "SECTION VIII-SPECIAL LICENSE REQUIREMENTS," Ms. Fernand was notified, among other things, that the "Special Alcoholic Beverage License" was "issued pursuant to 561.20(2)(b), Florida Statute [sic] or Special Act and as such we acknowledge the following requirements must be met and maintained: ... DERIVE 51 % OF GROSS REVENUE FROM FOOD AND NON- ALCOHOLIC BEVERAGES. SERVICE OF FULL COURSE MEALS MUST BE AVAILABLE AT ALL TIMES ALCOHOLIC BEVERAGES ARE BEING SERVED." As the person completing the application, Ms. Fernand was required to read, initial, and date Section VIII. A temporary special alcoholic license was issued by DABT to Café on December 18, 2003. The application was approved by DABT on December 19, 2003, and, subsequently, a permanent special alcoholic license was issued by DABT. DABT issued Café license number BEV16-17022 4-COP SRX. The license was held through Ms. Fernand. As a result of having been issued such a license by DABT, Café was and is subject to the regulatory jurisdiction of DABT. DABT conducts periodic audits of all restaurants holding a special SRX license to make sure that the restaurants are complying with the special license requirements. As part of this audit process, special agents from DABT, among other things, conduct announced visits, as well as undercover visits, at the restaurants and request the licensee to submit all necessary records for the audit. A SRX license holder has a continuing requirement to derive at least 51 percent of its gross revenue from sales of food and non-alcoholic beverages. DABT places the burden upon the licensee to show compliance with the SRX license requirements. Furthermore, DABT requires the licensee to keep clear, legible records in English and to submit such records if requested by one of its agents. When DABT requests the licensee to produce the records to establish compliance with the SRX license requirements, but the licensee fails to show compliance through the requested records, DABT determines that the licensee was not meeting the requirements to operate with the SRX license. The proof that DABT considers to establish compliance include monthly sales and purchase records of food and non- alcoholic beverages and sales and purchase records of alcoholic beverages, guest checks, z-tapes, monthly income statements (showing separately the food and non-alcoholic beverage sales), and sales of alcoholic beverages. On July 19, 2004, DABT's Special Agent Trenesa Davis visited Café to request Café to produce the records necessary for an audit under the SRX license. She found Café closed and locked. Special Agent Davis obtained Ms. Fernand's telephone number and contacted her that same day. Special Agent Davis informed Ms. Fernand of the records needed for the audit, and Ms. Fernand indicated that she would provide the requested records on July 21, 2004. However, Ms. Fernand failed to provide the requested records on July 21, 2004. The following day, July 22, 2004, Special Agent Davis again contacted Ms. Fernand by telephone. Ms. Fernand indicated that she would provide the requested records on July 23, 2004. But, again, Ms. Fernand failed to provide the requested records. On July 26, 2004, once again, Special Agent Davis contacted Ms. Fernand by telephone regarding the non-production of the requested records. Ms. Fernand indicated that she was ill, and Special Agent Davis informed Ms. Fernand that she could come to where Ms. Fernand was living and issue her an official notice of what DABT needed, with the compliance date. Ms. Fernand agreed, and Special Agent Davis proceeded to where Ms. Fernand was living. On that same day, July 26, 2004, Special Agent Davis issued Ms. Fernand an official notice to produce certain documents. The notice provided, among other things, that Ms. Fernand had "14 days to produce the following records: Separate records of all purchases and gross retail sales of food and non-alcoholic beverages & alcoholic beverages, Guest checks, cash register tapes, and any other documentation used to determine your food & beverage sales." Furthermore, the notice warned that "Failure to comply may result in administrative charges being filed against your alcoholic beverage license. *COMPLIANCE DATE AUGUST 13, 2004*." The notice was dated July 26, 2004. Ms. Fernand signed the notice. Ms. Fernand received the notice on July 26, 2004. On August 6, 2004, Special Agent Davis received a package from Café, but did not open it. She immediately took the package to DABT's auditor assigned to conduct Café's audit, Ronald Flores. Special Agent Davis opened the package in the presence of Auditor Flores. Inside the package were the following: (1) 11 receipts, dated between May 6 and June 23, 2004, showing purchases of alcohol from another vendor, BJ's Wholesale Club; (2) three blocks of guest checks: block one--numbered from 512402 to 512450; block two--numbered 100703, 100705, 100707- 100709, 100711, and from 100713 to 100750, with the guest checks from 100713 to 100750 being blank; and block three--numbered from 100592 to 100595 and 100632; and (3) 26 loose kitchen tickets, numbered from 84551 to 84570 and from 84572 to 84577. All of the kitchen tickets failed to reflect a date, the name Café or of any restaurant, and food sales. Further, the guest checks reflected only sales of alcoholic beverages; reflected only dates on those numbered 100708 and 100709 ("05-28-04" and "6/4"); and reflected dates ("4/18/04" through "5/31/04") and the name Café on those numbered 512402-512450, with the dates on three checks not being legible. The package contained no other record of food sales or purchases and no record of purchasing alcoholic beverages from distributors. Furthermore, the package contained no record of monthly schedules showing food and non-alcoholic and alcoholic beverage sales. Based on the records presented by Ms. Fernand, Auditor Flores was unable to perform an audit required by Café's SRX license and unable to make a determination as to whether Café met the 51 percent requirement of its license. On August 8, 2004, Special Agent Davis contacted Ms. Fernand by telephone in the presence of Auditor Flores, with the telephone on speaker-phone. Special Agent Davis inquired as to the whereabouts of Café's food and non-alcoholic beverage records. Ms. Fernand responded that she was not aware that Special Agent Davis wanted the food and non-alcoholic records but that she (Ms. Fernand) would provide them by August 13, 2004, which was the original compliance date of DABT's notice to produce records. However, Special Agent Davis did not receive any records from Ms. Fernand until August 16, 2004, three days beyond the compliance date to produce the records. The package received from Ms. Fernand contained three computer-generated documents for Café: an income statement, representing "6 Months Ended June 30, 2004"; a 2004 balance sheet, as of June 30, 2004 and 2003, and a balance sheet of liabilities and stockholders' equity, as of June 30, 2004 and 2003. Reflected at the bottom of each document was the following: "See Accountants' Compilation Report." The income statement reflected for January 1 through June 30, 2004, among other things, the following: food sales in the amount of $8,417.34 and alcohol sales in the amount of $3,039.66, totaling $11,457.00; gross profit in the amount of $5,942.51; total operating expenses in the amount of $23,901.19; and a net loss of income in the amount of $17,958.68. The income statement did not reflect monthly schedules of sales or any source of documents to verify the figures in the statement of income. No document in the package received on August 16, 2004, reflected its source or its creator, and none were signed. However, at hearing, Ms. Fernand admitted that she had prepared the income statement. Moreover, in the package received on August 16, 2004, no food sales and purchase records and no alcohol sales and purchase records were included. Again, based on the records presented by Ms. Fernand on August 16, 2004, as well as August 6, 2004, Auditor Flores was unable to perform an audit required by Café's SRX license and unable to make a determination as to whether Café met the 51 percent requirement of its license. On August 18, 2004, Auditor Flores forwarded to Special Agent Davis a memorandum advising her, among other things, that the records submitted by Café were incomplete to make a determination as to whether Café complied with the "SRX" requirements, that Café needed to provide the register tapes in order to verify sales, and that Café needed to provide monthly sales schedules with a breakdown of food and alcoholic beverage sales. Further, on August 18, 2004, Special Agent Davis issued a notice to Café that DABT intended to file an administrative complaint against it for failure to maintain records, citing the statutory provision, and SRX violations, citing the statutory provisions. The notice was mailed, certified to Café. Ms. Fernand admits that, between December 2003 and March 2004, Café sold food, as it was a "full restaurant," and alcoholic and non-alcoholic beverages; however, no alcoholic beverages were sold in December 2003. Further, she admits that, in December 2003, she had a "get together for a few friends" and a few patrons at Café; and that, in January 2004, a party was held at Café at which alcoholic beverages were sold of which she kept records. Additionally, Ms. Fernand acknowledges that she was aware that she was required to keep records and admits that she kept records of the food sales and alcoholic and non-alcoholic beverage sales. Although she obtained the license from DABT for Café in December 2003, Ms. Fernand did not open Café for business until April 17, 2004, as a grand opening. On June 26, 2004, Ms. Fernand lost access to Café as a result of being closed by the City of Fort Lauderdale. Also, in August 2004, she was evicted by the landlord of the building in which Café was located. Subsequently, she paid the landlord the back rent and was allowed to use the building again. She did not re-open Café until around November 20, 2004, even though the City of Fort Lauderdale notified her around September 7, 2004, that Café could be re-opened. Because of the eviction in August 2004, when Special Agent Davis requested the documents, Ms. Fernand had to request the landlord to go into Café and get the documents for her (Ms. Fernand). Ms. Fernand provided to Special Agent Davis the documents given to her by her landlord. Prior to losing access to the building in which Café was located, during the loss of access, and after re-gaining access, a box containing Café's records was located at Café. At no time, when she did not have access, did Ms. Fernand request the landlord to bring the box to her in order to provide food and beverage records to DABT. At no time, after gaining access to the building or prior to hearing, did Ms. Fernand review the records in the box and provide the requested food and beverage records to DABT.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a final order: Finding that Ran D Vou Café, d/b/a Ran D Vou Café violated Section 561.20(2)(a), Florida Statutes (2003). Finding that Ran D Vou Café, d/b/a Ran D Vou Café violated Section 561.55(3)(b), Florida Statutes (2003). Revoking the SRX license of Ran D Vou Café, d/b/a Ran D Vou Café, with prejudice for Ms. Mary Fernand not to obtain another SRX license for a five-year period, but without prejudice for her to apply for and obtain any other license for which she may be otherwise qualified to hold. DONE AND ENTERED this 24th day of April 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2006.
