Findings Of Fact The Respondents, Thomas Olhausen and Henry Stripling, d/b/a Trackside Lounge, hold Beverage License No. 23-1647, Series No. 4-COP, which was issued for the current year. On or about June 5, 1983, the Respondent Thomas Olhausen sold a controlled substance, namely cocaine, to Beverage Officer Terminello while he was on the licensed premises known as Trackside Lounge in Dade County, Florida. On or about June 8, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Dodson while he was on the Trackside Lounge premises. On or about June 12, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Terminello while he was on the premises of Trackside Lounge. The Respondent Henry Stripling did not go onto the Trackside Lounge between the dates of March 10 and June 10, 1983, pursuant to a restraining order issued on March 10, 1983, by the Dade County Circuit Court. This March 10, 1983, court order appointed two receivers to supervise the operation of the business known as Trackside Lounge. Pursuant to this authority the receivers employed Thomas Olhausen to operate and manage the business. Thus, Thomas Olhausen was not subject to the restraining order which barred Henry Stripling from entry onto the Trackside Lounge premises. The Respondent Henry Stripling had no connection with the sale of cocaine by the Respondent Thomas Olhausen to the Beverage Officers on June 5, 8 and 12, 1983. The court order of March 10, 1983, did not attempt to effect a judicial transfer of the beverage license held by the Respondents. The court appointed receivers did not file an application for a beverage license pursuant to Section 561.17, Florida Statutes, and there is no evidence that the receivers attempted to transfer the beverage license held - by the Respondents pursuant to Section S61.32(1)(a) and (b), Florida Statutes, or Section 7A-2.06(6), Florida Adminstrative Code. The court appointed receivers did not file a certified copy of the order appointing them as receivers with the Division of Alcoholic Beverages and Tobacco pursuant to Section 7A-2.06(6), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the alcoholic beverage license held by the Respondents, Thomas Olhausen and Henry Stripling, being number 23-1647, Series No. 4-COP, be revoked. THIS RECOMMENDED ORDER entered this 26th day of July, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 26th day of July, 1983. COPIES FURNISHED: William A. Hatch, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Mark A. Jacobs, Esquire 18204 Biscayne Boulevard North Miami Beach, Florida 33160 Richard F. Hayes, Esquire Suite 20 4601 Ponce de Leon Boulevard Coral Gables, Florida 33146 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue By notice to show cause, petitioner charged that respondent, individually or through the acts of its agent/employee, violated the provisions of Section 562.11(1)(a), Florida Statutes, by selling an alcoholic beverage on its licensed premises to a person under the age of 21. Respondent requested a formal hearing on the charges, and the matter was referred to the Division of Administrative Hearings. At the hearing, petitioner called three witnesses and offered three exhibits which were admitted into evidence. Respondent testified on his own behalf and offered no exhibits. A transcript of the hearing was not ordered, and the parties were granted leave until August 21, 1989 to file proposed findings of fact. Petitioner timely filed proposed findings of fact and conclusions of law. A ruling on each of petitioner's proposed findings of fact has been made and is reflected in the Appendix to this recommended order. On August 24, 1989, respondent filed a letter which is here deemed to be his proposed findings of fact; however, his filing was untimely.
Findings Of Fact At all times material hereto, respondent, Coast Line Petroleum, Inc. d/b/a Toms Texaco, held an alcoholic beverage license number 60-04813, series 2- APS for the premises known as Toms Texaco in Lantana, Florida at 401 N. Dixie Highway. Mr. Thomas Przybylski is the President of respondent and appeared on behalf of the licensee. On or around April 4, 1989, petitioner's investigator conducted an investigation of respondent's licensed premises to determine if respondent was selling alcoholic beverages to underaged persons. The investigation was prompted by complaints received by petitioner from the Lantana Police Department. Petitioner's practice in making such investigations was to employ an underaged person and send the underaged person onto the licensed premises to purchase an alcoholic beverage. The underaged person was instructed not to carry any form of identification and to respond truthfully if asked his age or for identification. Julio A. More was employed by petitioner as an Investigative Aide. On April 4, 1989, following petitioner's instructions, Mr. More, who was eighteen at the time and appeared to be no older than his age, entered the licensed premises at issue. It was a busy afternoon at Toms Texaco. Mr. More picked a beer out of the inventory and attempted to purchase it from Mr. Przybylski, who was working that afternoon. Mr. Przybylski asked Mr. More if he had any identification to which Mr. More replied that he had none. Mr. Przybylski then sold Mr. More the beer. Petitioner's investigator witnessed the sale and confiscated the tendered beer. Mr. Przybylski as an employee and officer of respondent sold an alcoholic beverage to an individual who was eighteen at the time of the sale. Accordingly, respondent is guilty of selling an alcoholic beverage to a person under 21 years of age. The proof demonstrated that petitioner has promulgated disciplinary guidelines for offenses similar to the one at issue; and that the appropriate penalty in this case would be the imposition of a fine of $1,000 and twenty-day suspension of the license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on respondent an administrative fine of $1,000 and suspending respondent's license for a period of twenty days. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of September 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO.89-3006 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraphs 3 and 4. Addressed in paragraph 4. Irrelevant. Adopted in paragraph 5. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Thomas John Przybylski, Jr. Coast Line Petroleum, Inc. 10670 Cypress Bend Drive Boca Raton, Florida 33498 Lt. Debbie Pfitzenmaier Elisha Newton Dimick Building 111 Georgia Avenue, Room 207 West Palm Beach, Florida 33401 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey Director The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: At all times material to the charges, Ronald Wayne Diamond and Susan Joyce Saiia owned and operated a partnership trading as Susan's Las Olas Seafood Market at 1404 E. Las Olas Boulevard, Fort Lauderdale, Florida ("the licensed premises") On the licensed premises, they sold alcoholic beverages under the authority of alcoholic beverage license No. 16-3029, Series 2-APS. On January 17 or 18, 1982,and on January 19, 1982, Broward County Sheriff's Department Detective Fernandez entered the licensed premises in an undercover capacity and negotiated with Respondent Ronald Diamond for the sale and delivery of cocaine and cannabis. Respondent Susan Saiia was present and aware of these negotiations, although she did not actively participate in them. On one of these occasions, she warned Respondent Diamond to be careful, that she had seen someone in the back alley who looked like he was wearing a recording device. On January 20, 1982, Respondent Diamond was arrested on charges of unlawful trafficking in cocaine and possessing cannabis in violation of Sections 893.135(1)(b) and 893.13(1)(e), Florida Statutes. He was taken to the licensed premises where a search warrant was executed and two ounces of marijuana were found in an office file cabinet. (Petitioner's Exhibit No. 2) On May 6, 1982, the Circuit Court of the Seventeenth Judicial Circuit, adjudging Respondent Diamond guilty of these felonies, sentenced him to fifteen years in prison and fined him $250,000 for trafficking in cocaine. He was sentenced to an additional five years for the possession of cannabis. (Petitioner's Exhibit No. 3)
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondents' alcoholic beverage license No. 16-3029, Series 2-APS, be revoked for multiple violations of the Beverage Law. DONE and ORDERED this 12th day of July, 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 12th day of July, 1983. COPIES FURNISHED: John A. Hoggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Maurice Graham, Esquire Suite 2 2161 E. Commercial Blvd. Ft. Lauderdale, Florida 33308 Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Was the Petitioner's application denied for good cause and is the Petitioner entitled to the beverage license for which he applied?
Findings Of Fact Henry McCalister and Willie Mack applied for a beverage license to the Division of Alcoholic Beverage and Tobacco, Department of Business Regulation. Willie Mack was notified that this application was to be denied because he had been convicted of a felony within the past 15 years pursuant to Section 561.15, Florida Statutes. He was further advised that he was entitled to a hearing pursuant to Section 120.57, Florida Statutes. The Respondent failed to produce at hearing any evidence of Mack's conviction of a felony.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Respondent issue the applicant the beverage license for which they applied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of September, 1978. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Willie Mack 834 Robinson Avenue Jacksonville, FL 32209 Francis Bayley, Esq. Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32304
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
Findings Of Fact Between June 6 and October 3, 1980, Petitioner's beverage officers and representatives of the Polk County Sheriff's Department conducted an undercover investigation of the Oasis Lounge in Ft. Meade. The business is operated by Milton Haverty who holds alcoholic beverage license No. 63-775. The manager- bartender during this period was John Haverty, the Respondent's son. On June 12, 1980, Beverage Officer West and Sgt. Allen of the Polk County Sheriff's Department visited the licensed premises in an undercover capacity. On that date, Martha Ann Berry delivered a beer to Beverage Officer West and accepted his payment for it. Both Officer West and Sgt. Allen observed Berry serve beer to another patron. Berry had been reported to the Polk County Sheriff's Department as a runaway juvenile. However, there was no evidence presented in this proceeding to establish that she was under 18 years of age at the time she delivered the alcoholic beverages. During the June 12, 1980, undercover visit to the licensed premises, the investigators openly discussed stolen property and were subsequently approached by John Haverty who asked that they obtain a T.V. set for him. Haverty and Sgt. Allen had further discussions about the T.V. set and a "stolen" outboard motor on June 20 and 24, 1980, again on the licensed premises. On June 27, the motor which was represented as stolen property was delivered to Haverty. In exchange for the motor, Haverty gave Allen three bags of marijuana (less than 20 grams) The transaction took place on the licensed premises. A subsequent sale of electronics equipment represented to be stolen goods was made by Allen to John Haverty on the licensed premises October 3, 1980. Haverty paid Allen $75.00 for these items.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner dismiss the Notice to Show Cause. DONE AND ENTERED this 30th day of July, 1981 in Tallahassee, Leon County, 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 30th day of July, 1981. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Milton Haverty Oasis Lounge 115 South Charleston Ft. Meade, Florida 33841
The Issue Whether Respondent's plea of nolo contendere to the crime of possession of a controlled substance (for which adjudication was withheld) is sufficient to support the imposition of discipline with regard to his alcoholic beverage license.
Findings Of Fact Petitioner 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 September 11, 2000, Respondent, doing business as Smiley's, was the owner and holder of a beverage license, DBPR License No. 74-05336, Series 2-COP, which permits him to sell beer and wine for consumption on premises. On October 9, 1998, Respondent was charged by information with sale and delivery of cocaine. He was acquitted of that charge on May 12, 2000. Subsequently in a separate incident, Respondent was charged with possession of cocaine and on September 11, 2000, pleaded no contest to that charge. Pursuant to Respondent's timely request for formal proceedings, Petitioner's counsel initiated discovery in the course of this administrative proceeding through a Request for Admissions to which Respondent failed to respond. Respondent failed to provide a satisfactory explanation for this circumstance and, upon motion of Petitioner, the Request for Admissions was deemed admitted. Those admissions establish that Respondent entered a no contest plea on September 11, 2000, to the charge of possession of cocaine and that the plea bargain negotiated at that time also included two days' incarceration. Additionally, the admissions establish that Respondent is aware that possession of cocaine is a crime punishable by imprisonment for a term of five years. Respondent's own testimony is uncorroborated by other direct evidence and fails to establish that he possesses good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's alcoholic beverage license, DBPR License No. 74-05336, Series 2-COP. DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 30th day of July, 2001. COPIES FURNISHED: Paul Kwilecki, Jr., Esquire 629 North Peninsula Drive Daytona Beach, Florida 32118 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Lt. John P. Szabo Department of Business and Professional Regulation 400 West Robinson Street, Room 709 Orlando, Florida 32801 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 32399-2202
The Issue Should Respondent’s license to sell alcoholic beverages be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent El-Bireh, Inc., held license number 63-02202, ZAPS, authorizing Respondent to sell alcoholic beverages on the premises of Sam’s Big Apple Number 2, located at 110 Manor Drive, Bartow, Polk County, Florida. Zahieh Awad Awadallah is the sole corporate officer and sole shareholder of El-Bireh, Inc. On January 18, 1997, as a result of a complaint from the City of Bartow, the Department initiated an investigation of Respondent’s premises located at 110 Manor Drive, Bartow, Polk County, Florida, for the sale of alcoholic beverages to persons under 21 years of age. On January 18, 1997, Special Agent Greenlee, along with another Department Special Agent, and Gabriel Shuler, went to Respondent’s licensed premises to investigate the sale of alcoholic beverages to persons under 21 years of age. Gabriel Shuler was born on January 7, 1978, and on January 18, 1997, was 19 years of age. At times pertinent to this proceeding, Shuler was 6 feet 6 inches tall and weighed 270 pounds. Shuler had a valid State of Florida driver’s license in his possession on January 18, 1997. The driver’s license carried Shuler’s correct age, height, and weight. The Department’s special agents present at Respondent’s licensed premises on January 18, 1997, instructed Shuler to enter the premises and attempt to purchase an alcoholic beverage. Shuler was also instructed to produce his driver’s license for identification, if requested, and not to attempt to deceive the clerk as to his correct age. Shuler entered the licensed premises and selected a 16-ounce can of “Budweiser” beer from the cooler inside the premises. Shuler purchased this 16 ounce can of “Budweiser” beer from a person later identified as Zahieh Awad Awadallah, the sole shareholder of Respondent. Sahieh Awad Awadallah did not ask Shuler for any identification or ask Shuler if he was 21 years of age. The 16 ounce of “Budweiser” beer purchased by Shuler from Respondent was in a container labeled “beer” and contained “beer,” an alcoholic beverage. The Respondent has not denied that Shuler purchased the beer. Special Agent Greenlee entered the licensed premises after Shuler and witnessed the sale of the beer to Shuler by Respondent. After purchasing this beer, Shuler exited the premises. Upon Shuler’s exiting the premises, the Department’s Special Agent took custody of the beer. Respondent was subsequently advised of the violations by Special Agent Greenlee and was issued a Notice to Appear by Special Agent Greenlee. There is sufficient evidence to show that Sahieh Awad Awadallah, the sole shareholder of El-Bireh, Inc., d/b/a Sam’s Big Apple Number 2, sold a 16-ounce can of “Budweiser” beer, an alcoholic beverage, to Gabriel Shuler, a person under the age of 21 years, without asking Shuler his age or requesting Shuler to produce identification showing his age to be 21 years. There are no mitigating circumstances which would support a reduction of the standard penalty imposed for the violation alleged in the Administrative Action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a final order be entered finding Respondent guilty of violating Section 562.11(1)(a), Florida Statutes, and for this violation that the Department issue an administrative fine in the amount of $1,000 against Respondent and that Respondent’s alcoholic beverage license number 63-02202, ZAPS, be suspended for a period of 7 days. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997. COPIES FURNISHED: James D. Martin, Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Brandon Rafool, Esquire Post Office Box 7286 Winter Haven, Florida 33883 Lynda L. Goodgame General Counsel Northwood Centre 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
The Issue The issue presented in this case is whether the Petitioner has established by a preponderance of the evidence that Respondent sold alcoholic beverages to a person under the age of 21, in violation of Section 562.11(1)(a), Florida Statutes, as alleged in the Notice To Show Cause issued October 8, 1992.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent, Jin I. Jeon, (licensee), held license number 39-03637, series 2-APS, authorizing him to sell alcoholic beverages on the premises of the Diwan Food Store, located at 7504 N. Florida Avenue, Tampa, Hillsborough County, Florida (premises). On or about September 16, 1992, Special Agent A. Murray, Special Agent K. Hamilton, Investigative Aide D. Snow and Intern M. Dolitsky went to Diwan Food Store to investigate complaints of alcoholic beverage sales to minors. Investigative Aide D. Snow's date of birth is November 11, 1973. She was 18 years of age on September 16, 1992. In accordance with the intructions of the law enforcement officers, Investigative Aide Snow entered the premises and selected a one-quart bottle of Budweiser beer, an alcoholic beverage, from a cooler. The bottle of beer was sealed and clearly marked as an alcoholic beverage. She proceeded to the cash register, where the Respondent was waiting. Snow paid the Respondent, who rang up the sale on the register. The Respondent did not request to see Snow's identification, nor did he ask her whether she was at least 21 years of age. The Respondent's defense was that he was not the person who sold Snow the beer. When he was confronted with the charges, he disclaimed any knowledge of them and blamed an employee, Min Sup Lee, whom he believed must have been the person involved in the sale. He immediately fired Lee because of the charges. Lee testified that he was employed by the Respondent from March 1992 through January, 1993. Lee testified that he worked for Respondent six days a week, primarily at night, and that he was the person in charge of the cash register the majority of the time. He asserted that he probably worked the cash register on the night of the violation. However, he denied ever having seen either Special Agent Murray or Special Agent Hamilton, or Investigative Aide Snow, and he denied any knowledge of the incident. It seems clear that Lee was not the person who sold the beer to the Investigative Aide Snow. Communication problems (the Respondent's English language limitations) may be at the root of the Respondent's inability to understand and to carry out his responsibilities as a vendor under the Beverage Law. Later on the evening of the sale in question, Special Agent Murray returned to the store to talk to the Respondent about the violation but she was not confident that he understood anything she was saying. It is possible that, due to the Respondent's lack of facility with the English language, he did not understand that Murray was charging him with illegal sale of alcoholic beverages to a minor and that, when, some time later, the Respondent came understand the nature of the charge against him, he assumed that his employee must have been responsible. On the other hand, it is possible that the Respondent knows full well his responsibilities under the Beverage Law, and knows full well that he failed to meet those responsibilities on September 16, 1992, but that he knowingly and unfairly tried to use his employee to avoid his own responsibity. In any event, it is found that it was the Respondent, not Lee, who sold the beer to Snow and that, in all likelihood, Lee either was not working on September 16, 1992, or was occupied elsewhere with other responsibilities when Snow and Murray were in the store. The Division's standard penalty for the violation alleged in the Notice to Show Cause is a twenty-day license suspension and a thousand dollar ($1,000.00) civil penalty. This standard penalty has been noticed as proposed Rule 7A-2.022, Penalty Guidelines, pending public workshop and approval.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: (1) finding the Respondent guilty as charged in the Notice to Show Cause; (2) suspending the Respondent's alcoholic beverage license for twenty days; and (3) ordering the Respondent to pay a $1,000 civil penalty. RECOMMENDED this 27th day of July, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 27th day of July, 1993. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32399-1007 Jin I. Jeon 7504 N. Florida Avenue Tampa, Florida 33604 John Harrison, Acting Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Donald D. Conn, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee Florida 32399-1000
