Findings Of Fact Respondent, Allen McGhee and Latarra Hargarett, d/b/a A Touch of Class, is licensee of a facility located at 208 South Paramore Avenue, Orlando, Florida. The alcoholic beverage license #58-02721, 2COP series, was most recently renewed for the period October 1, 1991 through September 30, 1992. Allen McGhee did not appear at the hearing and is apparently in custody as a result of the activities that are the subject of this license discipline proceeding. Latarra Hargarett, a/k/a/ Gibbs, is the current sole lessee of the premises at 208 South Paramore Avenue. She has also contracted to purchase Allen McGhee's share of A Touch of Class nightclub, and has commenced payment pursuant to the contract. The parties have agreed to resolution of this proceeding as follows: The current license is revoked, and $3,000.00 civil penalty and $1,500.00 investigative costs are imposed. This license discipline is without prejudice to Latarra Gibbs' right to file an application for a beverage license in her own name at the 208 South Paramore Avenue location.
Recommendation Based on the foregoing, it is hereby, recommended that the agency enter its Final Order reflecting the parties' stipulated disposition as stated herein. RECOMMENDED this 31st day of October, 1991, in Tallahassee, Florida. MARY CLARK 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 31st day of October, 1991. COPIES FURNISHED: Nancy Waller, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joerg F. Jaeger, Esquire Katz, Jaeger & Blankner 217 E. Ivanhoe Blvd., North Orlando, FL 32804 Richard W. Scully, Director Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000
The Issue The issue in this case is whether Petitioner should revoke Respondent's alcohol beverage license, pursuant to Section 561.501, Florida Statutes (1995), 1/ and Florida Administrative Rule 61A-2.02 2/ because Respondent failed to pay tax, interest, and penalties of $179,146.56.
Findings Of Fact Petitioner is the state agency responsible for regulating alcohol beverage licenses. Respondent holds alcoholic beverage license number 69-00735, series 4-COP, for Lake Monroe Inn, 2485 North Highway 17-92, Sanford, Florida. Until sometime after December 1996, Respondent sold alcoholic beverages for consumption on the licensed premises. Respondent was required by Section 561.501 to pay a surcharge tax on such alcoholic beverages. In October, 1996, Petitioner audited Respondent's books and records to determine Respondent's compliance with the surcharge tax. The audit period was January 1, 1996, through August 31, 1996. Petitioner's auditors conducted the audit in accordance with generally accepted audit procedures. Petitioner determined the following surcharge tax liability: Surcharge Tax $ 47,472.98 Interest $ 7,961.66 Penalty $123,711.92 Total Liability $179,146.56 On October 10, 1996, Petitioner presented an audit report to Respondent, and the auditors discussed the audit findings with Respondent. Respondent does not contest the audit report and concedes the total liability. Respondent admits that the failure to collect and remit the tax was willful. Subsequent to the filing of the Administrative Action, Respondent went out of business. A lienholder foreclosed on Respondent's license. Another business now operates at Respondent's location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's alcohol and tobacco license. DONE AND ENTERED this 21st day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 21st day of August, 1997.
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
The Issue This case concerns the issue of whether Respondents' beverage license should be suspended or revoked or otherwise disciplined for sale of alcoholic beverages to a minor. At the formal hearing, the Petitioner called as witnesses Ervin A. Hooper, Patricia Perkins, Christine Ellis, Paul C. Davis, and John Sokol. Petitioner offered and had admitted into evidence one exhibit. Respondent Richard N. Jiosne testified on behalf of Respondents and Respondents also called John Hanks as a witness. Respondents offered and had admitted two exhibits. Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with the findings and conclusions in this order, they were rejected as being not supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact At all times relevant to these proceedings, the Respondents Richard N. and Ann N. Jiosne were the holders of beverage license No. 39-186, Series 2APS. The license is issued to a drive-through beverage establishment located in Brandon, Florida, and known as the Beverage Castle. The licensed premise is a drive-through facility which sells beer, along with other grocery items and sundries. The Beverage Castle is operated by Mr. and Mrs. Jiosne, along with their son and an employee named John Hanks. Late in the afternoon or early evening of July 22, 1983, Patricia Perkins and Christine Ellis drove into the Beverage Castle for the purpose of buying beer. They drove in and stopped and a young boy that appeared to be between 12 and 14 years old came to the car and asked what they wanted. The driver, Patricia Perkins, told him that they wanted a six pack of Michelob beer and he immediately went to a cooler and removed a six pack of Michelob beer and handed it to an older gentleman. The older gentleman then handed the beer to Patricia Perkins and collected her money for the beer. At no time was Patricia Perkins asked for identification. She had not purchased beer at this establishment previously. The young boy was Ritchie Jiosne, the son of Mr. and Mrs. Jiosne, the owners. The older gentleman was John Hanks, the evening manager of the Beverage Castle. On July 22, 1983, Patricia Perkins was 16 years old and her date of birth is December 30, 1966. The passenger in the automobile, Christine Ellis, at the time of the purchase was 17 years old and her date of birth is December 28, 1965. Prior to Patricia Perkins and Christine Ellis entering the Beverage Castle, a deputy of the Hillsborough County Sheriff's Department had had the licensed premises under surveillance. He had observed several cars drive through with individuals who appeared to be young purchasing beer without being required to show identification. The officer also observed the purchase made by Patricia Perkins and Christine Ellis and observed no identification being shown by Patricia Perkins to either of the individuals working at the Beverage Castle that evening. The owners have a policy against selling alcoholic beverages to minors. There is a sign posted next to the register which states: LOOK WE ABSOLUTELY DO NOT, WILL NOT, AND REFUSE TO SERVE ANYONE!, WHO IS ASKED AND DOES NOT HAVE PROPER I.D. HAVE YOUR CARD READY. The employees have been instructed to not serve alcoholic beverages to minors and to check identification. The Beverage Castle has a reputation within the high school students of Brandon, Florida, as a place where minors can buy beer. A prior violation was brought against the Respondents' license within the past year for sale of alcoholic beverages to a minor. That case resulted in recommended dismissal by the Hearing Officer and the Director of the Division of alcoholic Beverages and Tobacco adopted that recommendation and dismissed the case.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered finding the Respondents guilty of the charge as set forth above and imposing a civil penalty of $150.00. DONE and ORDERED this 8th day of June 1984, in Tallahassee, Florida. MARVIN E. CHAVIS 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 8th day of June 1984. COPIES FURNISHED: Louisa Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. Patrick McElroy, Esquire Suite 200 - Rutland Bank Building 1499 Gulf to Bay Boulevard Clearwater, Florida 33515 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact The parties stipulated and agreed that Grace Industries, Ltd., Inc. held License No. 26-1488 on or about September 25, 1975 and October 16, 1975. The parties entered into a stipulation that the facts alleged in the Administrative Complaint were true and accurate. Therefore, the facts are established, that on or about the 25th of September, 1975, the Respondent, its agent, servant or employee did unlawfully sell alcoholic beverages, to wit: one case of Black Horse Ale, to a licensed vendor, Tom Relaford's Liquors, License No. 26-944, 4-COP, while such vendor was on the delinquent "no sale" list issued by the Division effective July 16, 1975. The stipulation further established that on or about the 16th of October, 1975, the Respondent, its agent, servant or employee did unlawfully sell alcoholic beverages, to wit: two cases of assorted wine, to a licensed vendor, Tom Relaford's Liquors License No. 26-944, 4-COP, while such vendor was on the delinquent "no sale" list issued by the Division effective July 16, 1975. The word "Division" as used in this statement of fact refers to the Division of Beverage.
Recommendation The permit held by the Respondent, Grace Industries, Ltd., Inc., is a new permit and offenses as set forth in the Complaint under consideration are the first offenses by the Respondent. The parties have stipulated that the undersigned may make conclusions of law and a recommendation, notwithstanding the lack of disputes in fact. Furthermore, the Petitioner's attorney had indicated that it would not recommend any imposition of sentence more than a civil penalty, not to exceed $150.00 and that it would be counsel for the Petitioner's suggestion that the Director of the Division of Beverage abide by the undersigned's recommendation. It is therefore RECOMMENDED that the Director of the Division of Beverage assess a fine in the amount of $100.00 against the licensee, Grace Industries, Ltd., Inc. DONE and ENTERED this 23rd day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Dennis Katz, President Grace Industries, Ltd., Inc. 2410 Silver Street Jacksonville, Florida 32207
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 This case arises out of a Notice to Show Cause dated January 13, 1982, served by the Petitioner upon the Respondent requiring that the Respondent show cause as to why his Beverage License No. 26-02065 should not be suspended, revoked, or otherwise disciplined for having committed violations of the laws of Florida, and thus, a violation of Florida Statutes 561.29(1)(b). On January 28, 1982, the Respondent, by and through his attorney, Lacy Mahon, Jr., requested, in writing, a formal hearing pursuant to Section 120.57, Florida Statutes. On March 30, 1983, a Notice of Hearing scheduling the formal hearing in this matter for April 28 and 29, 1983, was served upon Mr. Lacy Mahon, Esquire, attorney for the Respondent. Prior to the formal hearing, Mr. Mahon contacted Mr. Watson, counsel for the Petitioner, and informed him that his client, Mr. Billy Freeman, had requested that he not appear at the hearing on behalf of Mr. Freeman and that Mr. Freeman also would not appear. The undersigned Hearing Officer also received an ex parte communication from the Respondent, Mr. Billy Freeman, inquiring as to the purpose of the formal hearing, and I explained to him that a Notice to Show Cause had been filed against his beverage license and that if he had any further questions, he should contact either his attorney or Mr. James Watson of the Division of Alcoholic Beverages and Tobacco. The Respondent nor his attorney appeared at the formal hearing in this matter. The petitioner presented as its evidence three exhibits. Petitioner's Exhibit 1 is an indictment charging the Respondent with burglary and arson dated June 4, 1982. Petitioner's Exhibit 2 is a certified copy of a judgment convicting the Respondent of arson in violation of Florida Statute 806.01(2). And Petitioner's Exhibit 3 was a late filed exhibit reflecting the license status and license number of the Respondent's beverage license. The Respondent did not appear, and, therefore, did not present any evidence.
Findings Of Fact The Respondent, Billy Freeman d/b/a The Mug, holds Beverage License No. 26-02065, Series 2-COP. On August 10, 1982, the Respondent, Billy Freeman, was convicted of arson, a second degree felony, in violation of Florida Statute 806.01(2). The Respondent was adjudicated guilty and sentenced to imprisonment for a term of 18 months. The conviction occurred in the Circuit Court of Duval County, Florida, Case No. 81-11038CF.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Beverage License No. 26-02065, 2-COP be revoked. DONE and ENTERED this 25th day of May, 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 25th day of May, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Lacy Mahon, Esquire 350 East Adams Street Jacksonville, Florida 32202 Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary 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
The Issue Whether proposed Rules 61A-7.003, 61A-7.007, 61A-7.008, and 61A-7.009 constitute invalid exercises of delegated legislative authority, pursuant to Section 120.52(8), Florida Statutes,1/ for the reasons described by Petitioner in its Petition.
Findings Of Fact Petitioner and Intervenor are companies whose substantial interests will be affected by the proposed rules and they have standing to bring this rule challenge. The State of Florida, Department of Business and Professional Regulation (the Department), is the state agency responsible for adopting the proposed rules which are the subject matter of this proceeding. The Division of Alcoholic Beverages and Tobacco (the Division) is vested with general regulatory authority over the alcoholic beverage industry within the state. The Division issues both general and special alcoholic beverage licenses. See Chapters 561-565, Fla. Stat. The general licenses which permit consumption on the premises are: 1COP licenses which permit consumption of beer and certain wine and distilled spirit products; 2COP licenses which permit consumption of beer, wine, and certain distilled spirit products; and 4COP licenses which permit the consumption of beer, wine, and all distilled spirits. See §§ 563.02(1)(b)-(f), 564.06(5)(b), and 561.20(1), Fla. Stat. The 4COP licenses are known as quota licenses, are issued based on the population of the county, and are limited in number. § 561.20(1), Fla. Stat. Quota liquor licenses range in value, depending on the county involved, from a low of approximately $20,000, to a high of approximately $300,000. (stipulation of parties) The SBX or special bowling license is issued by the Division pursuant to Section 561.20(2)(c), Florida Statutes. The owner or lessee of a bowling establishment having 12 or more lanes and necessary equipment to operate them may obtain this special license which permits consumption of beer, wine, and distilled spirits. Alcohol can only be sold for consumption on the licensed premises. Another special alcoholic beverage license listed in proposed Rule 61A-7.003 is the 12RT license. The holder of such a license must be a caterer at a dog track, horse track, or jai alai fronton. In this context, Section 565.02(5), Florida Statutes, reads in pertinent part as follows: (5) A caterer at a horse or dog racetrack or jai alai fronton may obtain a license upon the payment of an annual state license tax of $675. Such caterer’s license shall permit sales only within the enclosure in which such races or jai alai games are conducted, and such licensee shall be permitted to sell only during the period beginning 10 days before and ending 10 days after racing or jai alai under the authority of the Division of Pari- mutual Wagering of the Department of Business and Professional Regulation is conducted at such racetrack or jai alai fronton. . . . Petitioner participated, to some degree, in the rule development process. The extent of that participation is unclear from the record. The text of the proposed rules as published in their final form in the Florida Administrative Weekly on October 10, 2003, is as follows: 61A-7.003 Premises Not Eligible For Smoking Designation. Licensed premises shall not be designated as a stand-alone bar if the qualifications for licensure require the premises be devoted predominantly to activities other than the service of alcohol. The following licenses are not eligible for a stand-alone bar designation: S = Special Hotel SH = Special Hotel in counties with population of 50,000 or less SR = Special Restaurant issued on or after January 1, 1958 SRX = Special Restaurant SBX = Special Bowling SAL = Special Airport SCX = Special Civic Center SCC = Special County Commission SPX = Pleasure, Excursion, Sightseeing, or Charter boats X = Airplanes, Buses, and Steamships IX = Railroad Cars XL = Passenger Waiting Lounge operated by an airline PVP = Passenger Vessels engaged in foreign commerce FEX = Special Public Fairs/Expositions HBX = Special Horse Breeders HBX = Special County Commission 11AL = American Legion Post permitted to sell to general public 11C = Social, Tennis, Racquetball, Beach, or Cabana Club 11CE = Licensed vendors exempt from payment of surcharge tax 11CS = Special Act Club License 11CT = John and Mable Ringling Museum 11GC = Golf Club 11PA = Symphony, Live Performance Theatre, Performing Arts Center 12RT = Dog or Horse Track or Jai Alai Fronton 13CT = Catering Specific Authority 386.2125, 561.695(9) FS. Law Implemented 386.203(11), 561.695 FS. History--New 61A-7.007 Formula For Compliance With Required Percentage of Gross Food Sales Revenues. In order to determine compliance, the division shall use the formula of gross food sales revenue, including but not limited to non-alcoholic beverages, divided by gross total sales revenue, in any consecutive six- month period. The results of the formula will represent the percentage of food sales revenues as defined herein and in s. 561.695, Florida Statutes. Specific Authority 386.2125, 561.695(9) FS. Law Implemented 386.203(11), 561.695(6) FS. History--New 61A-7.008 For Percentage of Gross Alcohol Sales Revenue Formula. In order to determine compliance, the division shall use the formula of gross alcohol sales revenue divided by gross total sales revenue, in any consecutive six-month period. Specific Authority 386.2125, 561.695(9) FS. Law Implemented 386.203(11), 561.695(6) FS. History--New 61A-7.009 Method Used to Determine Whether an Establishment is Predominantly Dedicated to the Serving of Alcoholic Beverages. In order to determine whether an establishment, other than one holding a specialty license designated in Rule 61A- 7.003, F.A.C., is predominantly dedicated to the serving of alcoholic beverages, the division shall compare the percentage of gross food sales revenue with the percentage of gross alcohol sales revenue. If the percentage of gross alcohol sales revenue is greater than that of the gross food sales revenue, an establishment is deemed predominantly dedicated to the serving of alcoholic beverages. Specific Authority 386.2125, 561.695(9) FS. Law Implemented 386.203(11), 561.695(1)(9) FS. History--New Article X, Section 20, Florida Constitution, was adopted by the electorate in 2002, and generally prohibits smoking in enclosed indoor workplaces. This constitutional provision includes certain exceptions from this general prohibition including the "stand-alone bar" exception. Section 20(d) instructs the Florida Legislature to adopt legislation to implement its provisions and specifies that the Legislature is not precluded from enacting any law constituting or allowing a more restrictive regulation of tobacco smoking than is provided in Section 20. The legislature implemented the constitutional amendment by amending Part II, Chapter 386, Florida Statutes. Section 386.204 prohibits smoking in enclosed indoor workplaces, except as provided in Section 386.2045. Section 386.2045 enumerates exceptions to the general prohibition, including the exception of a stand-alone bar. Section 386.2045(4), Florida Statutes, reads as follows: (4) STAND-ALONE BAR- A business that meets the definition of a stand-alone bar as defined in s. 386.203(11) and that otherwise complies with all applicable provisions of the Beverage Law and this part. A stand-alone bar is defined in Section 386.203(11) as follows: (11) 'Stand-alone bar' means any licensed premises devoted during any time of operation predominately or totally to serving alcoholic beverages, intoxicating beverages, or intoxicating liquors, or any combination thereof, for consumption on the licensed premises; in which the serving of food, if any, is merely incidental to the consumption of any such beverage; and the licensed premises is not located within, and does not share any common entryway or common indoor area with, any other enclosed indoor workplace, including any business for which the sale of food or any other product or service is more than an incidental source of gross revenue. A place of business constitutes a stand-alone bar in which the service of food is merely incidental in accordance with this subsection if the licensed premises derives no more than 10 percent of its gross revenue from the sale of food consumed on the licensed premises. Deborah Pender is the chief of licensing for the Division. According to Ms. Pender, the Division included the SBX or special bowling license in the list of special licenses that cannot qualify for stand alone bar status in proposed Rule 61A- 7.003 because its predominant business is a bowling alley. Similarly, the 12RT license was included because its predominant business is a racetrack: "Because that’s a specialty license that is issued at race tracks, and if it wasn’t a race track business, the caterer . . . couldn’t have a license anywhere else." Marie Carpenter is the chief of the Bureau of Auditing of the Division. According to Ms. Carpenter, the provision regarding the six consecutive months in proposed rules 61A-7.007 and 61A-7.008 was intended to give the Division enough of a period of time to get a good picture of whether the business met the criteria for compliance and to give licensees an opportunity to build up business records that were not previously required to be kept.2/ The licensee would be required to keep daily records. Ms. Carpenter acknowledged that in using the six month auditing period in the proposed rule, a licensee could exceed the 10 percent requirement on one or more occasions during the audit period. Sandy Finkelstein is President of Petitioner and is the operating partner of Shore Lanes Bowling Center in Merritt Island, Florida. According to Mr. Finkelstein, there is at least one bowling facility in Florida that was issued a 4COP license. A bowling facility with a 4COP license is not automatically excluded from the stand-alone bar designation, whereas a bowling facility with an SBX license is automatically excluded from the stand-alone bar designation by virtue of proposed rule 61A-7.003.
The Issue The issue for determination is whether the Respondents or their employee sold an alcoholic beverage to a person under the age of 21, on December 22, 1988, in violation of section 562.11(1)(e), Florida Statutes. If a violation occurred, a recommendation regarding discipline must be made. In addition to the substantive issue, Respondents claim that the agency's procedures regarding administrative prosecution for beverage license violations are unconstitutional. This issue is preserved for the record, but is not determined here as this is an essentially judicial function. Carrollwood State Bank v. Lewis, 362 So. 2nd 110, 113-14 (Fla. 1st DCA 1978) cert den mem. 372 So. 2nd 467 (1979)
Findings Of Fact At all times pertinent to the allegation of the Notice to Show Cause, Respondents were doing business at 3200 South Orlando Drive, Sanford, Seminole County, Florida, as Cavalier Motor Inn, under alcoholic beverage license no. 69- 004675. On the afternoon of December 22, 1988, the Buccaneer Lounge at the Cavalier was busy with office Christmas parties. It was dark, crowded and noisy. In response to an earlier complaint, two investigators from the Division of Alcoholic Beverages and Tobacco (DABT) entered the lounge around 5:00 p.m. with an underage operative. That operative, Sherri Russell was born on August 18, 1971, thus was 17 years old in December 1988. She is a friend of the daughter of one of the investigators, David Ramey, and had worked for the agency as a volunteer operative on several prior occasions. Miss Russell entered the lounge with investigators Ramey and Glover a few feet behind her. She found a place in front of the bar, and the female bartender asked what she wanted to drink. She responded a "Bud Light"; the bartender told her how much it cost and got the drink. Miss Russell paid the bartender and took control of the drink from the bartender. At that, Investigator Ramey approached, removed the drink from Miss Russell and identified himself to the bartender. Miss Russell left the lounge with Investigator Glover. According to previous instructions, Miss Russell had no identification with her. She was told to respond truthfully if asked her age or if asked for identification. The money for the drink was provided by the investigators. The entire incident took about five minutes. The only person behind the bar was the female bartender. Co-Respondent, Cesare Polidoro, was standing approximately six to seven feet away from Miss Russell, in an opening in the bar, with a clear view of the transaction. As Investigator Ramey spoke to the bartender, Cesare Polidoro identified himself as the owner and the three moved into another room to talk. The only person working in the lounge on December 22, 1988, was the female bartender, Sylvia Wilson. Another employee was out sick. Cesare Polidoro was there to keep order and to fetch change, if necessary, but he never tends bar and he did not assist on this occasion. Even though the lounge was extremely busy, he did not call to have his partner come help. Although he did not anticipate the one employee would be out sick, Cesare Polidoro did anticipate the crowd on December 22, 1988. There were two parties scheduled in the lounge for around 4:30 or 5:00 p.m. The companies scheduled in advance and alerted the owner that approximately 150 people would be involved. Cesare Polidoro retired and moved to Florida from Elizabeth, New Jersey, where he had worked for twenty-five years as a fire-fighter. He invested his life savings in the business, at the Cavalier, now known as Cesare's Palace. His policy is to avoid selling alcoholic beverages to minors and he instructs his employees in that regard. Both he and his partner continually remind the employees to check identifications. Minors are not good for business as they cause problems and do not have the kind of money to spend ten or fifteen dollars over the counter, according to Cesare Polidoro. The employees are generally conscientious in verifying ages and identification of patrons. Sylvia Wilson, who has criminal charges pending with regard to the alleged sale, refused to testify on matters directly related to the criminal charges. Cesare Polidoro denied that he witnessed the sale and claimed that he had never seen Sherri Russell before the hearing. Investigator Glover, however, observed Polidoro looking directly at Miss Russell during the entire transaction. Polidoro's credibility is discredited by two particularly blatant artifices he employed at the hearing. In response to his attorney's question with regard to educational programs for his employees regarding serving alcoholic beverages to minors, he invoked his experience as a "law enforcement officer" in New Jersey and the many cases he saw involving minor children and drugs. As a firefighter, however, he was not an armed law enforcement officer and had limited arrest powers, not including drug offenses. He also claimed that "a fellow by the name of Mr. York" came up to him on the December 22nd and gratuitously volunteered that the investigator bought the drink and gave it to the young woman. He did not explain how this person, whom he did not know, would be interested in sharing the information or would understand its importance. On the date of the hearing, this ephemeron, just as inexplicably, withdrew his assistance and allegedly told Polidoro he was too busy to come testify. No evidence adduced at hearing established Anthony Milazzo's culpability or implication in the unlawful sale. Cesare Polidoro was culpable. He watched the incident. Moreover he allowed a single employee to become so "swamped" (her term) that it became virtually impossible for her to meaningfully comply with his instructions regarding checking identifications. The DABT policy regarding incidents of sales to minors is to file administrative charges immediately if the licensee was on the premises. Otherwise, the licensee receives a notice after the first violation and criminal charges are filed against the employee or agent who made the sale. For the second violation, the licensee is notified that an investigation is open and criminal charges are filed against the person serving the minor. For the third violation, administrative charges are filed against the licensee and criminal charges are filed against the employee.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that a Final Order be entered finding the licensee guilty of a violation of section 561.29(1)(a), Florida Statutes and section 562.11(1)(a), Florida Statutes, and imposing a civil penalty of $1,000.00. DONE and ENTERED this 23rd day of June, 1989 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. PETITIONER'S PROPOSED FINDINGS Adopted in Paragraph #1. Adopted in substance in paragraphs #3, 4, and 5. Rejected as cumulative. Adopted in substance in paragraph #3. Rejected as cumulative and unnecessary, except for the observation of Polidoro, which is adopted in paragraph #11. Adopted in substance in paragraphs #2 and 8. Rejected as unnecessary, except for Ms. Smith's nonappearance at work on the 22nd, which is adopted in paragraph #8. Adopted in part in paragraphs #10 and 11, otherwise rejected as unnecessary. Adopted in substance in paragraphs #8, 10, and 12. Rejected as unnecessary. RESPONDENT'S PROPOSED FINDINGS Adopted in paragraph #1. through 4. Adopted in paragraph #3. Adopted in paragraph #2. and 7. Rejected as contrary to the weight of evidence. Adopted in paragraph 8. Rejected as contrary to the evidence relating to the incident in issue. Rejected in part, as the age of Sherri Russell was not checked in the incident at issue. Otherwise adopted in paragraph #8. Adopted in paragraph #4. Rejected as contrary to the weight of evidence. Adopted in paragraph #14. Rejected as unnecessary. and 16. Rejected as cumulative. COPIES FURNISHED: JOHN B. FRETWELL, ESQUIRE ASSISTANT GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1007 RICHARD A. COLEGROVE, JR., ESQUIRE 801 ORIENTA AVENUE SUITE 2600 ALTAMONTE SPRINGS, FLORIDA 32701 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING 725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO 725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000 JOSEPH A. SOLE GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION 725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000
