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
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact: Liquid Assets, Inc., is a Florida corporation. The principals in the corporation are Lawrence Freedman and Joel Silverstein. Freedman is the president/secretary. Silverstein is the vice-president/treasurer. Freedman and Silverstein each hold 50 percent of the shares of Liquid Assets, Inc. In September of 1981, Freedman and Silverstein filed a Preliminary Application For New Quota Alcoholic Beverage License in order to participate in a random selection public drawing for 30 additional quota alcoholic beverage licenses in Dade County, Florida, pursuant to Section 561.20, Florida Statutes. The application form for the preliminary application included language in the instructions which specifically advised the applicants that if they were successful in the drawing they would be required to file a second application in which they would have to show, inter alia, "proof of right" of occupancy." The drawing was conducted on June 17, 1982, and Freedman and Silverstein were selected as number 22. The DABT notified them of this shortly thereafter. On October 28, 1982, Freedman executed an Application For Alcoholic Beverage License which was filed with the DABT on November 24, 1982. Between the time of the drawing and the time of the execution of the last mentioned application, the DABT advised Freedman that his proposed location was unsuitable because a large number of other applicants were proposing to use that same location. Accordingly, when Freedman filed the application on November 24, 1982, he showed a different location for the business than that which had appeared on the preliminary application. The application filed on November 24, 1982, also showed that Freedman did not have right of occupancy at the proposed premises because the premises were still under construction and Freedman did not have a lease commitment. The DABT requested that Liquid Assets, Inc., waive the 180-day period within which the DABT is normally required to process an application and by letter dated November 10, 1982, which was received by the DABT on November 24, 1982, Freedman advised the DABT: "We hereby waive the 180 day period required for processing our application and grant you such additional time as you deem necessary to complete your examination of our applications." A DABT investigator asked Freedman to send a written statement of the applicant's plans for opening the business, and by letter dated December 22, 1982, Freedman advised the DABT: "Our landlord plans to complete construction in August 1983 and the leasehold improvements should be complete by October 31, 1983. We anticipate to open our store on November 1, 1983." In late April of 1983, Freedman had one or more discussions with DABT Investigator Oliva. During those discussions Freedman told Oliva about delays Freedman was experiencing with the construction of the proposed business location. Investigator Oliva told Freedman he did not think this would be a problem, but went on to suggest to Freedman that Freedman write to the DABT and request that his license be held in escrow pending completion of the construction of the proposed business location. On May 1, 1983, Freedman followed this advice and wrote to the DABT as follows: "pursuant to your request I hereby request that you place my license upon issuance into escrow until such time that you inspect and approve the location of my business." Later in May someone from the DABT called Freedman regarding his fingerprints and on May 25, 1983, the DABT received Freedman's fingerprints. Shortly thereafter, on June 21, 1983, Oliva's supervisor, Sgt. Herrara, recommended that the application be approved with the license in escrow. This recommendation was reviewed by the DABT's Bureau of Licensing and Records. On July 20, 1983, the Assistant Chief of that Bureau wrote to the Miami area District Supervisor and stated that the Liquid Assets, Inc., license would not be issued until the building was completed and inspected and until the Bureau of Licensing and Records received an executed copy of the lease. The memorandum of July 20, 1983, concluded with a statement that the file was being "held in suspense." The file was "held in suspense" because the DABT did not have any procedure for putting a new license application in escrow. The significance of being in "suspense" was that the application was at that time incomplete and was awaiting some further action by either the applicant or the DABT. Sometime in September of 1983, Freedman spoke to Oliva and told him that due to construction delays, the proposed business premises would not be ready until May of 1984. He also advised Oliva that he still did not have a lease. This information was communicated by Telex to the Bureau of Licensing and Records on September 21, 1983. By memorandum dated November 8, 1983, the Assistant Chief of the Bureau of Licensing and Records advised the District Supervisor of the Miami area office as follows regarding the Liquid Assets, Inc., application: "The above referenced application is being held in suspense pending completion of the building and receipt of an executed lease. Please advise applicant." In the meantime, on or about August 30, 1983, Freedman was advised by the manager of the development at the location of the proposed premises that due to further construction delays, it would be September of 1984 before the proposed premises would be ready for occupancy. Freedman intended to communicate this information to Oliva, but failed to do so. 2/ By letter dated November 21, 1983, the District Supervisor for the Miami area advised Freedman as follows regarding the Liquid Assets, Inc., application: "The above referenced application is being held in suspense pending completion of the building and receipt of an executed lease." On May 22, 1984, an assistant to the District Supervisor telephoned Freedman to inquire about the status of the proposed business premises. Freedman advised her that the building had final financing and that the building was expected to be completed by September of 1984. He also advised her that the landlord was not ready to sign a lease. During June and July of 1984, Investigator Pfitzenmaier had several telephone conversations with Freedman about the status of the proposed business location. Each time she spoke to Freedman he told her that he still did not have a lease on a business location and that it would be another three or four months before he could have one. Investigator Pfitzenmaier spoke to the Chief of the Bureau of Licensing and Records about this matter and he told her that Freedman had better get a location within two or three weeks or the application would be denied. On July 11, 1984, Investigator Pfitzenmaier called Freedman to inquire about the status of the proposed business premises. Freedman advised her that the premises he had been planning to use were still under construction and that the owners were not yet ready to issue leases. He also stated that those premises would not be ready until at least October 1, 1984. Freedman also stated that he had another location in mind that he would probably switch to. That location was also under construction and would not be ready for a few months. Investigator Pfitzenmaier told Freedman that the Chief of Licensing had said that if Freedman did not have an executed lease at this time, the application would be disapproved. Freedman's response was that he could not possibly obtain a lease and zoning approval within even three months. Investigator Pfitzenmaier reported the substance of this conversation to the Assistant Chief of the Bureau of Licensing and Records by memorandum dated July 11, 1984. By letter dated July 25, 1984, the DABT advised Liquid Assets, Inc., that its license application had been disapproved. The stated reason for the disapproval was as follows: "Application incomplete in that applicant has failed to provide documentation evidencing that he has secured a location for the license." At no time did any agent or representative of the DABT advise Freedman that he had an indefinite period of time within which to make arrangements for a business location. At no time did any agent or representative of the DABT advise Freedman that he could wait until September of 1984 to obtain a business location.
Recommendation Based upon all of the foregoing, I recommend that the Director of the Division of Alcoholic Beverages and Tobacco enter a final order in this case denying the Liquid Assets, Inc., application for a new quota license. DONE AND ORDERED this 15th day of July, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 July, 1985.
The Issue The Administrative Complaint, as amended, in this case alleges that Respondent engaged in or permitted gambling activity on the licensed premises in violation of Sections 849.14 and 561.29(1)(a), Florida Statutes. The issue for resolution is whether that violation occurred and, if so, what discipline is appropriate.
Findings Of Fact Petitioner is the agency responsible for issuing licenses permitting the sale of alcoholic beverages in Florida and is responsible for enforcing the beverage laws, Chapters 561-568, Florida Statutes. Respondent is a Florida corporation holding alcoholic beverage license number 15-00185, series 4COP, which authorizes it to sell alcoholic beverages at retail at the licensed premises, Bottoms Up Bar, located at 8400 US-1, South, Micco, in Brevard County, Florida. Lynette Tummolo is the president of Bottoms Up Bar, Inc. Ms. Tummolo's first bar was a restaurant and liquor bar in Palm Bay, Florida: Duke's Place. She and Robert Bench owned the bar as 50/50 partners. Duke's Place was moved to a new location after a hurricane and in August 1996, Ms. Tummolo and Mr. Bench sold their license to David Oliver. In March 1997, Ms. Tummolo started another business, a beer and wine bar, which opened in Micco, Florida. The Articles of Incorporation dated February 19, 1997, and filed with the Secretary of State for Bottoms Up Bar, Inc., list the incorporator as Lynette Tummolo, and the members of the board of directors as Lynette Tummolo and Robert Bench. The most recent annual report, dated March 23, 1998, and filed with the Secretary of State, reflects that Lynette Tummolo and Robert Bench are both directors of the corporation. In June 1997, after David Oliver defaulted on his payments for the license, Lynette Tummolo purchased back the liquor license and had it transferred to Bottoms Up Bar, Inc. Ms. Tummolo applied to the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT) and had approved, a transfer of the liquor license and change of location to Bottoms Up Bar in Micco. The application submitted by Ms. Tummolo lists herself as president and 60% stockholder, Robert Bench as secretary and 40% stockholder, herself as treasurer, and Robert Bench as director. A personal questionnaire form for Robert Bench is attached to Ms. Tummolo's application. This form states that Mr. Bench is the director/manager of Bottoms Up Bar and that he was investing no funds in the business. At the hearing in this proceeding, Ms. Tummolo stated that Robert Bench was not an owner or officer of the corporation Bottoms Up Bar, Inc., but the only reason she put him on the application form was that a staff person from DABT told her that she had to put officers of the corporation and had to show a percentage of stock. Ms. Tummolo's testimony is inconsistent with her sworn affidavit at the end of the form. The testimony is also inconsistent with any established policy of DABT. Ann (Annie) Raftery works as manager of Captain Hiram's, a restaurant and lounge in Sebastian, Florida, near Micco. She regularly patronizes Bottoms Up Bar and is a friend of Robert Bench. She also sometimes helps clean up at Bottoms Up Bar after closing. In January 1998, Ms. Raftery decided on her own to start a football pool for the Super Bowl. She drew the grid and collected $20 for each square on the grid representing a wager. Individuals placing a wager wrote their names or some identification on the square they selected. Ms. Raftery carried the grid sheet around with her on a plastic clip-board. On the Friday night before Super Bowl Sunday 1998, Annie Raftery arrived at Bottoms Up Bar around 10:30 p.m. She handed the football pool sheet on the plastic clip-board, for safekeeping, to Robert Bench, who was working as bartender. He stashed it behind the bar for her. On that same Friday, January 23, 1998, in response to a complaint, Sergeant Sam Brewer (at that time, a DABT special agent) commenced an undercover investigation of Bottoms Up Bar. Late that evening he and other agents entered the bar, mingled with the crowd, played darts, and socialized. At one point, Special Agent Brewer asked an individual whether she knew of any pools for the upcoming Super Bowl football game. She responded that he would have to talk to "the boss" and pointed out Robert Bench behind the bar. Agent Brewer then sat at the bar and started talking to Mr. Bench. During the course of the conversation, Mr. Bench reached next to the cash register behind the bar and handed a plastic clip-board with the football pool sheet to a female patron sitting at the bar. This individual looked at it and handed it to another woman, later identified as Annie Raftery. Annie Raftery then gave the clip-board to Lynette Tummolo. Agent Brewer asked Robert Bench about the pool and Bench replied that it belonged to Captain Hiram's. Mr. Bench then got Ms. Raftery and directed her to Agent Brewer. Agent Brewer conversed with Ms. Raftery about the pool. She had the clip-board again and explained how to place a wager. Agent Brewer selected a square and put the name, Steve B., on the grid and paid Ms. Raftery $20. She told him she would be at Captain Hiram's or Bottoms Up Bar on Sunday, and he left, as it was closing time. Agent Brewer returned on Sunday, around half-time of the Super Bowl. He approached Mr. Bench at the bar and asked where he could see the football pool sheet to check his numbers. Mr. Bench replied that they had copies, but Ms. Raftery had the original and pointed her out at the end of the bar. Ms. Raftery showed Agent Brewer the pool sheet and he confirmed that it was the one he had marked earlier. He then made a covert telephone call to the other agents waiting outside. They, and assisting officers of the sheriff's office, arrested Mr. Bench and Ms. Raftery. They retrieved $1,200 from Ms. Raftery's car and $440 from her home. The remainder of the $2,000 she collected had already been paid out for the first quarter of the game. Ms. Tummolo is at Bottoms Up Bar every night, seven nights a week. She remembers Friday, January 23, 1998, was particularly busy. At the hearing she described a plastic clip- board kept at the bar with a sheet on which the bartenders must record the liquor they remove from the back stockroom. Ms. Tummolo insists that if she had been seen with a clip-board, it would have been the liquor record and not a football pool. Agent Brewer saw Ms. Tummolo with the football pool, however, the night he placed his wager. Bottoms Up Bar does not participate in the Responsible Vendors Program. Ms. Tummolo meets regularly with her bartenders and, at least since the Super Bowl Sunday event, she reminds them that gambling in any form is not tolerated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the agency enter its Final Order finding Respondent guilty of violating Sections 561.29(1)(a), Florida Statutes, and 849.14, Florida Statutes, and assessing a penalty of $250.00. DONE AND ENTERED this 19th day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1998. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joe Teague Caruso, Esquire 800 East Merritt Boulevard Merritt Island, Florida 32954-1271 Richard Boyd, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
The Issue Whether or not on or about July 13, 1975, Arthur Hayes, Jr., licensed under the beverage laws, and or his agent, servant or employee did sell or permit to be sold, served or consumed alcoholic beverages, to wit: a quart bottle of Schlitz beer, any time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29 Whether or not on or about July 20, 1975, Arthur Hayes, Jr. licensed under the beverage laws and or his agent, servant or employee did sell or permit to be sold, served or consumed, alcoholic beverages, to wit: a quart bottle of Schlitz beer at a time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29.
Findings Of Fact In the presentation of its case, the petitioner called beverage agent Eugene Fogel to the stand. On or about July 13, 1975, agent Fogel was working for the Sanford, Florida, Police Department and in addition was acting in an undercover capacity for the Division of Beverage. At around 2:00 p.m. July 13, 1975, then police officer Fogel met with agent Herb Baker of the Division of Beverage in Sanford, Florida, for purposes of investigating alleged illegal alcoholic beverage sales which were being made on Sunday. The witness, Fogel, went to the address of Dinah's West Side Grocery, entered the store and purchased a quart bottle of Schlitz beer from the respondent, Arthur Hayes, Jr., This particular item of evidence became petitioner's exhibit 1 and is currently in the custody vault of the Division of Beverage District Office in Orlando, Florida. Testimony by agent Herb Baker indicated that the meeting as spoken of by agent Fogel had transpired, and he had seen agent Fogel enter the subject premises on July 13, 1975, and come out with a paper bag which contained petitioner's exhibit number 1. This exhibit was turned over to agent Baker. Officer Fogel testified that on Sunday, July 20, 1975, the same sequence of events occurred that had occurred on Sunday, July 13, 1975. He met agent Baker and then went to Dinah's West Side Grocery around 3:30 p.m. and purchased a quart bottle of Schlitz beer, which is petitioner's exhibit number 2. The petitioner's exhibit number 2 is now located in the custody of the District Office, Division of Beverage, Orlando, Florida. Again, agent Baker stated that he observed officer Fogel go into the premises on July 20, 1975, return with a bag and that the bag contained a quart bottle of Schlitz beer. The testimony was given by officer Fogel that July 13, 1975 and July 20, 1975, were Sundays. Other Petitioner's exhibits admitted into evidence were exhibit number 3 which is a notice to show cause with accompanying administrative complaint, exhibit 4 which is a notice of hearing, and exhibit 5 which is a copy of an ordinance in Seminole County, Florida. This ordinance was in effect on July 13, 1975 and July 20, 1975, and prohibited the sale of alcoholic beverages on any Sunday. The respondent took the stand in his own behalf and indicated that he knew Eugene Fogel in July of 1975, and knew that Eugene Fogel was a policemen with the Sanford Police Department. He stated that he therefore would not have sold beer to Officer Fogel on Sunday, because he knew such a sale would be illegal. The witness also stated that the only employees in his store were he and his wife and consequently the only explanation he could think of for the two quarts of beer, was that the policemen had stolen the beer from his freezer. He said this would have been easy since there was no lock on the beer freezer and it was close to the door. After assessing the testimony of the witnesses, together with the examination of the evidence it is determined that the violations as alleged in counts 1 and 2 in the administrative complaint have been proven. This determination is arrived at because it would not appear that there is any motive on the part of the two police officers to promote absolute falsehoods. On the other hand considering the interest of the respondent and the quality of his comments, he has not effectively explained or defended against the charges.
Recommendation For committing the offense as alleged in Count 1 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes Jr., have his license suspended for a period of 30 days. For committing the offense as alleged in Count 2 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes, Jr., pay a civil penalty in the amount of $150.00. DONE and ENTERED this 5th day of February, 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: William Hatch, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Arthur Hayes, Jr. 1717 West 18th Street Sanford, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF BEVERAGE IN RE: DINAH'S WEST SIDE GROCERY 1717 West 18th Street CASE NO. 75-2011 Sanford, Florida DABT CASE NO. 5-75-94-A License No. 69-139 /
Findings Of Fact The Petitioner has complained against the named Respondent pursuant to the accusations set forth above. The Respondent requested a formal hearing to be conducted in accordance with the provisions of Section 120.57(1), Florida Statutes, but did not attend the hearing. However, the hearing having been set at Respondent's request was held and the Petitioner's case was presented. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has as its responsibility the licensure and regulation of beverage license holders in the State of Florida. Harry's, Inc., which trades under the name of Night Gallery III, is the holder of License No. 58-1036, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located at 6010 Old Winter Garden Road, Orlando, Florida. On November 15, 1979, Beverage Officer Nathan Cahoon entered the licensed premises of Harry's, Inc., to investigate alleged Beverage Law violations. He observed a woman on the stage dancing who was subsequently identified as Denice Dyer. Thereafter, she approached Officer Cahoon and asked him to buy her a drink, which he did. She advised him that she was supposed to "hustle" drinks but not sex. Subsequently, she offered to give Officer Cahoon a "lap dance" which he refused. She also offered to "screw" Officer Cahoon (meaning to engage in sexual intercourse) for $25.00 or $30.00, and suggested using a back room of the licensed premises (Counts 1 and 2). On November 15, 1979, Beverage Officer C. E. Cruce entered the licensed premises of Harry's, Inc., to investigate alleged Beverage Law violations. He was approached by a woman known as "Sissy," who offered to give him a "lap dance" for $5.00, which be accepted. To perform this "dance," "Sissy" straddled the lap of Officer Cruce and went through a series of gyrations while a record was playing. Her top was removed during this procedure, exposing her breasts, but not her nipples. Officer Cruce later observed "Sissy" dancing on the stage, where she had been summoned by the bartender. Officer Cruce was approached by a woman known as "Misty," who solicited a drink from him. He purchased a beer for her at a cost of $2.50, which was one dollar more than the beer he purchased for himself. He observed that she paid the bartender the money he gave her (Count 3). On November 15, 1979, Beverage Officer B. A. Watts, Jr., entered the licensed premises of Harry's, Inc., to investigate alleged Beverage Law violations. He observed a woman dancing on the stage who later became known to him as "Peaches." She approached Officer Watts and solicited a drink from him. He purchased a beer for her and paid the waitress one dollar more for the drink than he paid for his own (Count 4). "Peaches" also performed a "lap dance" on Officer Watts and then offered to "take care" of him, stating that she would perform sexual intercourse or give him a "hand job" for $30.00 (Count 5). On November 19, 1979, Beverage Officer J. E. Kiker, Jr., entered the licensed premises of Harry's, Inc., to investigate alleged Beverage Law violations. Officer Kiker was approached by Julia Bernice Brooks, who solicited five drinks from him. Officer Kiker purchased these drinks from the waitress for $2.50 each. Julie Bernice Brooks also offered to engage in sexual intercourse with Officer Kiker (Counts 6 and 11). Officer Kiker observed Julie Bernice Brooks dance on stage two or more times. Although she was not nude, she pulled her costume aside so as to expose her pubic area to Officer Kiker and other patrons in the audience (Count 12). Officer Kiker observed Ozzlyn Wright dancing on the stage. On two occasions, she disrobed and bent over so as to expose her vaginal and anal openings to the audience. On a third occasion, she caused the face of a male patron to make contact with her pubic area (Counts 13 and 14). Officer Kiker observed a dancer on stage who he later identified as "Sissy." Although she was not nude, she pulled her costume aside so as to expose her pubic area to Officer Kiker and others in the audience (Count 15) . Officer Kiker observed that the bartender called Julie Bernice Brooks, Ozzlyn Wright, and "Sissy" to the stage periodically and that they received tips from members in the audience. On November 29, 1979, Officer Kiker returned to the licensed premises of Harry's, Inc., for the further investigation of alleged Beverage Law violations. He was approached by Julie Bernice Brooks, who asked him to buy her wine, which he did (Count 19).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that charges contained in Counts 7, 8, 9, 10, 16, 17 and 18, and that all charges involving alleged violation of Section 877.03, Florida Statutes (1979), specified in the Notice to Show Cause/Administrative Complaint be dismissed. It is further RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2, 3, 4, 5, 6, 11 and 19 of the Notice to Show Cause/Administrative Complaint. It is further RECOMMENDED that Respondent be found guilty of violating Section 800.03, Florida Statutes (1979), as alleged in Counts 12, 13, 14 and 15 of the Notice to Show Cause/Administrative Complaint. It is further RECOMMENDED that License No. 58-1036, Series 2-COP, held by Respondent, Harry's, Inc., be revoked. RECOMMENDED this 31st day of December, 1980, in Tallahassee, Florida. R. T. CARPENTER 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 31st day of December, 1980. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Allen McCormick, Esquire 217 North Eola Drive Orlando, Florida 32801 David Flaxer, Esquire 615 East Princeton 515 Loch Haven Executive Building Orlando, Florida 32803
The Issue The issue for consideration in this matter is whether Respondent's 2APS alcoholic beverage license No. 15-02229, should be disciplined because of the matters set out in the Notice to Show Cause issued by the Department on November 13, 1991.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Ajitkumar L. Naik, operated the Circle A Food Mart in Rockledge, Florida under a 2APS Cigarette permit No. 15-02229. The Department of Business Regulation, through its Division of Alcoholic Beverages and Tobacco, was the state agency responsible for issuing such permits and regulating the conduct of tobacco sales under them. Bonita Sue Adkins, born on October 23, 1973, was, at the time of the alleged offenses, a student at Rockledge High School. She had known the Respondent for about 2 years and patronized his store frequently. On those occasions she spoke with him as a friend about her life in general and he was very nice. She trusted him. Sometime prior to October 24, 1991, however, she claims, the nature of his approach began to change. He began to get more personal with her, suggesting she satisfy herself sexually. When she would speak with him about her relationship with her boyfriend, or when her stomach hurt as a result of her menstrual period, he would allegedly tell her how he could make her feel better sexually and would, periodically, talk with her about having sex with him even though she claims she never led him on or gave him any reason to believe she was interested in him that way. Ms. Adkins describes herself as an open and demonstrative individual and admits to having hugged Respondent once or twice but never to having kissed him. On October 9, 1991, as a result of a dispute with her boyfriend during the school day, Ms. Adkins was upset and felt the need to talk with someone. She left school before it was over, something she did often, and went to Respondent's store where she told him of her problems and asked him for a cigarette even though she knew she was too young to legally possess them. She claims she had gotten them from him in the past after she told him she was over 18 without showing him the identification he had asked for. Respondent denies this, however. On this particular day, Ms. Adkins claims, Respondent again said he could satisfy her sexually, purportedly indicating he would "eat her" and "make her come." She states he told her that if she would just be with him for sex for a couple of hours alone, he'd give her anything in the store she wanted. On all these occasions, when Respondent would speak to her with sexual innuendo, she did nothing about it, accepting it as "guy" talk. Only when he touched her did she get upset. On this occasion, Ms. Adkins states, she was wearing stretch jeans and a loose top over an undergarment and panties. Customers came in and out of the store while they were talking, and Respondent remained behind the counter with her on the outside. When the store emptied, however, Respondent allegedly told her to get the drink she had asked for and as she was facing the fountain, she claims, he came behind her and put his hand up under her shirt. She told him to stop and tried to get away. He was holding her tightly, however, she claims, and touched her breast under the undergarment for several minutes while she resisted and tried to get away. According to Ms. Adkins, Respondent finally let go of her breast and tried to put his hand down the front of her pants, but could not get far enough down to touch her genitalia. All during this time, she claims, she was trying to get him to stop and to let her go. She thought he was trying to have sex with her which she did not want. During the several minutes of struggle, during which he supposedly tried to kiss her and she consistently resisted his advances and asked him to let her go, she did not scream or call out because she felt there was no one there to hear her to help her. She does not know who was or might have been in the area, however. Ms. Adkins ultimately got away from the Respondent and, leaving the store, took a taxi which he had called for her to her home. Not only did Respondent call the cab, for which Ms. Adkins waited, but he also gave her the money to pay for it and a pack of cigarettes. This is patently unbelievable. It stretches credulity to expect anyone to believe that after being assaulted sexually, Ms. Adkins would wait around her attacker's store for a cab he allegedly called for her. Respondent purportedly told Ms. Adkins to say nothing about what happened between them to anyone. She did not report the matter to anyone including her parents or the police until 2 or 3 days later because, she claims, she did not know what to do. She claims she felt Respondent had violated her trust and she was afraid to tell her parents. Her best friend's mother worked for the police department but she didn't tell her, either. It was only when her boyfriend, Mr. Dotson, to whom she told the story several days later, told her to tell her mother about it did she make her complaint. Ms. Adkins' reputation for truth and veracity in the community is not good. She was arrested for burglary when she was 16 years old and for several other minor offenses which were not prosecuted. On October 15, 1991, Officer Hollenbeck was advised by his dispatcher, the mother of Ms. Adkins' close girlfriend, that Ms. Adkins had told her she had been assaulted. That same day he contacted Ms. Adkins' mother to ask if they wanted to file a complaint. The following day, Ms. Adkins and her mother came to Hollenbeck's office where Ms. Adkins made a statement accusing Respondent of assault. Several days later, on October 21, 1991, Officer Hollenbeck contacted Respondent and asked him to come to the police station where he told Respondent of the allegations Ms. Adkins had made against him. In a sworn statement made at the time, Respondent admitted Ms. Adkins had come to his store on the day alleged and that they had talked, but he unequivocally denied any assault. Respondent indicated to Officer Hollenbeck he had had trouble in the past with Mr. Dotson and his mother who spread untrue rumors that he had sold beer and cigarettes to minors. He indicated that when Ms. Adkins was in his store, two other patrons were there. When Hollenbeck checked this with those patrons, both recalled having been there and one recalled seeing a blonde female. Neither saw anything unusual going on. When Hollenbeck asked to see the tape from the security camera in the store, Respondent indicated it had automatically been erased and used over a relatively short time after real time. The system is a continuous reel type on which, if not preserved for a specific item, the tape is used over and over. Respondent admits Ms. Adkins came into his store on the day in question complaining of a stomach ache and seeking a free soft drink to which he agreed. At that time, other patrons and the beer distributor were there and she remained until all had left. When he asked her what was wrong, she stated she had had a fight with her boyfriend, had left school early, and needed to "chill out" until she could go home. At the time, Respondent was waiting for his wife to bring him his lunch and go pick up their daughter at school. Respondent and Ms. Adkins talked, but he denies she gave him any details regarding her fight with her boyfriend. He claims he told her to talk with her friend, Ginger, about that. Respondent also denied giving Ms. Adkins either money or cigarettes, and he specifically denies any sexually oriented conversations with her nor did he proposition her sexually. He admits he might have called her "pretty girl" as a part of the friendly approach he takes with all his customers. When she came into his store that day it was near the lunch hour and this is a busy time for him. According to Mr. Naik, Ms. Adkins is a liar and an individual who will make any untrue allegation about people to get even with them if she believes they have offended her. He believes she has made these instant allegations about him because he refused to sell her boyfriend, Mr. Dotson, cigarettes. She threatened to report him to the police for possession of marijuana, an allegation he claims to be untrue. Mr. Dotson, age 17 at the time of the hearing, currently lives with Ms. Adkins but denies having any serious relationship with her now. He was told by Mr. Taylor, who testified to Ms. Adkins bad character for the Respondent, that Ms. Adkins was not well liked by her peers, but he had not found this to be true. He also denies ever having told Mr. Taylor that Ms. Adkins was a liar or had a bad reputation for truth and veracity. He claims he has purchased cigarettes in Respondent's store in the past but never from Respondent personally. This is consistent with Respondent's denials. Taken together, from the testimony of Ms. Adkins and Mr. Dotson, and observation of their demeanor while on the stand, it is hard to credit either with much believability and the testimony of neither is particularly credible. Ginger Austin, formerly Ms. Adkins' best girlfriend, has patronized Respondent's store frequently for about a year. At first, she claims, he was polite and courteous to the girls, but with time, he began to speak suggestively toward Ms. Adkins. She relates that on one occasion he suggested to Ms. Adkins that she get rid of her boyfriend and get a real man, and she also recalls having heard him tell Adkins that if she would "screw" him she could have anything in the store. However, neither young woman reacted to these comments and both continued to patronize the store even after the alleged assault. She claims this was because there were no other stores around, but the evidence clearly shows there were other stores in the area, though not on the direct route between school and home as was Respondent's store. Nonetheless, neither seemed to consider Respondent a threat or to take him seriously. Ms. Austin claims she is no longer friends with Ms. Adkins and has not discussed her testimony with her. She also denies having discussed Adkins' reputation with Taylor. Here, as with Adkins and Dotson, the witness' testimony is not persuasive. Respondent pleaded guilty to a lesser misdemeanor offense than that originally charged, the exact nature of which was not disclosed, even though he continued to protest his innocence because he is an alien. Had he been convicted of the original felony charge, he claims, even though he did not commit it, he would have had to leave the country That was the sole reason for his plea, he asserts. This is not unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that the Notice to Show Cause issued by the Department in this case alleging misconduct by the Respondent regarding Ms. Adkins on or about October 24, 1991, be dismissed. RECOMMENDED this 8th day of January, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 8th day of January, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3774 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. Rejected as not based on credible evidence. Testimony is accurate but not believed. First three sentences accepted. Balance rejected as not based on credible evidence. - 8. Rejected as not based on credible evidence. 9. - 11. Rejected as not based on credible evidence. Not a Findings of Fact but a comment on the evidence. Rejected as not based on credible evidence. Accepted as to her actions but not as proof of Respondent's misconduct. Accepted. Not a Finding of Fact but a comment on the evidence. Not an appropriate Finding of Fact relating to the evidence. FOR THE RESPONDENT: NONE SUBMITTED. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 William R. Clifton, Esquire 1273 South Florida Avenue Rockledge, Florida 32955 Janet B. Ferris Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Petitioners' applications for the delinquent renewal of their special restaurant licenses pursuant to Section 561.27(2), Florida Statutes, should be denied for the reasons set forth in the Notices of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: There are various types of DABT-issued licenses authorizing the retail sale of alcoholic beverages. Among them are quota licenses, SRX licenses, and SR licenses. All three of these licenses allow the licensee to sell liquor, as well as beer and wine. Quota licenses, as their name suggests, are limited in number. The number of quota licenses available in each county is based upon that county's population. SRX and SR licenses are "special" licenses authorizing the retail sale of beer, wine, and liquor by restaurants. There are no restrictions on the number of these "special" licenses that may be in effect (countywide or statewide) at any one time. SRX licenses are "special restaurant" licenses that were originally issued in or after 1958.3 SR licenses are "special restaurant" licenses that were originally issued prior to 1958. For restaurants originally licensed after April 18, 1972, at least 51 percent of the licensed restaurant's total gross revenues must be from the retail sale of food and non- alcoholic beverages.4 Restaurants for which an SR license has been obtained, on the other hand, do not have to derive any set percentage or amount of their total gross revenues from the retail sale of food and non-alcoholic beverages. DABT-issued alcoholic beverage licenses are subject to annual renewal.5 License holders who have not timely renewed their licenses, but wish to remain licensed, may file an Application for Delinquent Renewal (on DABT Form 6015). Until recently, it was DABT's longstanding policy and practice to routinely grant applications for the delinquent renewal of SR and other alcoholic beverage licenses, regardless of the reason for the delinquency. DABT still routinely grants applications to delinquently renew alcoholic beverage licenses other than SR licenses, but it now has a "new policy" in place with respect to applications for the delinquent renewal of SR licenses. The "new policy" is to deny all such applications based upon these SR licenses' not having been in "continuous operation," action that, according to DABT, is dictated by operation of Section 561.20(5), Florida Statutes, a statutory provision DABT now claims it had previously misinterpreted when it was routinely granting these applications. Relying on Section 561.20(5), Florida Statutes, to blanketly deny all applications for the delinquent renewal of SR licenses was the idea of Eileen Klinger, the head of DABT's Bureau of Licensing. She directed her licensing staff to implement the "new policy" after being told by agency attorneys that this "was the appropriate thing [from a legal perspective] to do." Abkey and Amy Cat have SR licenses that were originally issued in 1956 "per general law and not pursuant to any special or local act." Maneros has an SR license that was originally issued in 1952 "per general law and not pursuant to any special or local act." As applicants applying to delinquently renew their SR licenses, Petitioners are substantially affected by DABT's "new policy" that SR licenses cannot be delinquently renewed because they have not been in "continuous operation," as that term is used in Section 561.20(5), Florida Statutes. Their applications for the delinquent renewal of their licenses would have been approved had the status quo been maintained and this "new policy" not been implemented. Abkey filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on February 21, 2007. On the application form, Abkey gave the following "explanation for not having renewed during the renewal period": "Building was sold. Lost our lease." On April 2, 2007, DABT issued a Notice of Intent to Deny Abkey's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. Maneros filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on June 4, 2007. On the application form, Maneros gave no "explanation for not having renewed during the renewal period"; however, the application was accompanied by a letter from a Maneros representative, which read, in pertinent part, as follows: I am today submitting a delinquent renewal application for the above-referenced alcoholic beverage license. The building has been demolished, and there is a vacant lot at the site at this time. Redevelopment is scheduled for this area, and I expect new construction to begin shortly. The license was first issued to this location 55 years ago. I have inquired with the City of Hallandale Beach, Florida, and there remains a question as to whether zoning approval for this type of alcoholic beverage license would be permitted under current uses once reconstruction is complete. The licensee of record wishes to reinstate and possibly use or transfer the license. . . . On June 8, 2007, DABT issued a Notice of Intent to Deny Maneros' application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued. Amy Cat filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 1999) on December 6, 2006. On the application form, Amy Cat gave the following "explanation for not having renewed during the renewal period": "Building was closed." On June 8, 2007, DABT issued a Notice of Intent to Deny Amy Cat's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 1999, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a Final Order granting Petitioners' applications for the delinquent renewal of their SR licenses. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S 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 30th day of April, 2008.
