Findings Of Fact The Respondent, Cornelia T Brown, doing business as the Oasis Restaurant Bar and Lounge, is the holder of beverage license No. 45-356, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located on Douglas Road, Groveland, Florida. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has its responsibility the licensure and regulation of beverage license holders in the State of Florida. On June 12, 1980, pursuant to a search warrant, Lake County Sheriff and Groveland Police officials accompanied by Petitioner's Beverage Officer, conducted a search of the licensed premises. Respondent was present throughout the investigation. Among the items seized as suspected controlled substances were seven plastic baggies and eight small manila envelopes containing a total of 52.1 grams of cannabis. Currency in the amount of $2,273,67 was also seized. The cannabis and currency were contained in a purse belonging to Respondent. The purse was discovered in the kitchen of the licensed premises, an area not open to bar/restaurant patrons or other members of the public.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2 and 4. It is further RECOMMENDED that County 3, which duplicates County 2, and Count 5, be DISMISSED. It is further RECOMMENDED that Respondent's License No. 45-356 be REVOKED. DONE AND ENTERED this 30th day of September 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September 1981. COPIES FURNISHED: Cornelia T. Brown Route 1, Box 350-7 Groveland, Florida 32736 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue By Notice to Show Cause filed December 19, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the alcoholic beverage license number 60-0883 issued to James R. Rogers, trading as Ray's Tavern. As grounds therefor it is alleged that Rogers, in order to secure a license to sell alcoholic beverages, made false written statements to the agents of Respondent in violation of 537.06 and 561.29 F.S. One witness was called by Petitioner and four exhibits were admitted into evidence.
Findings Of Fact On December 21, 1977, notice of the hearing scheduled to commence on January 12, 1978 at 1457 N. Military Trail, West Palm Beach, Florida was served on Respondent by a beverage agent of Petitioner. (Exhibit 1) In answer to question 13 on the application for Transfer of Alcoholic Beverage License, which asked "Has a license covering the place described in this application or any other place in which any of' the above named persons were at the time interested ever been revoked by the Director?" Respondent answered "No". (Exhibit 2). By Order of the Director of the Division of Beverages dated September 30, 1955 (Exhibit 3) the alcoholic beverage license issued to James R. Rogers, Curley's Tavern, aka Ray's Tavern was revoked for maintaining gambling paraphernalia and permitting gambling on the licensed premises.
The Issue Should Respondent's Alcoholic Beverage License Number 63-04089 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: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law of the State of Florida. At all times material to this proceeding, Respondent, operated as a sole proprietorship known as Fort Meade Restaurant and Lounge, located at 122 Fourth Street Southwest, Fort Meade, Florida. Respondent held a series SRX4COP Alcoholic Beverage License Number 63-04089, issued by DABT, which authorized Respondent to sell beer, wine, and liquor for consumption on the licensed premises in connection with the restaurant operation of Fort Meade Restaurant and Lounge. Respondent's beverage license did not authorize Respondent to sell any form of alcoholic beverage for consumption off of the licensed premises. By letter dated February 10, 1997, the Fort Meade Police Department requested investigative assistance from DABT concerning an allegation that controlled substances were being sold at Respondent's licensed premises as well as another location unrelated to Respondent. As a result of the request for assistance from the Fort Meade Police Department, DABT instituted an investigation concerning the complaint. In addition to assigning the complaint to a Special Agent, Cleveland McKenzie, DABT requested assistance from the Polk County Sheriff's Department. At approximately 9:45 p.m. on April 18, 1997, Agent McKenzie, accompanied by Detective Bobby Neil, Polk County Sheriff's Office, entered Respondent's licensed premises, located at 122 Fourth Street Southwest, Fort Meade, Florida, in an undercover capacity. While in Respondent's licensed premises on April 18, 1997, Agent McKenzie asked the person tending bar (bartender) for "a beer for the road." In response to Agent McKenzie's request, the bartender placed an unopened 12-ounce bottle of Budweiser beer in a paper bag and handed the bag, with the beer inside, to McKenzie who then paid for the beer and left the licensed premises without attempting to conceal the beer on his person and without being stopped by any person providing services on the licensed premises. Agent McKenzie and Detective Neil left the licensed premises at approximately 11:00 p.m. Both Agent McKenzie and Detective Neil described the bartender as a stout, light-skinned, black male approximately 20 to 25 years of age. Neither Larry Fisher, manager of the licensed premises, nor Reginald Johnson, Respondent's adult son, fit this description. The person tending bar at the licensed premises on April 18, 1997, and April 26, 1997, was neither Larry Fisher nor Reginald Johnson, notwithstanding the testimony of Larry Fisher or Reginald Johnson to the contrary which I find lacks credibility. At approximately 10:30 p.m. on April 26, 1997, Agent McKenzie and Detective Neil entered Respondent's licensed premises located at 122 Fourth Street Southwest, Fort Meade, Florida, in an undercover capacity Before leaving the licensed premises on April 26, 1997, Agent McKenzie asked the bartender (the same individual tending bar while Agent McKenzie was in the licensed premises on April 18, 1997) for "a beer to go." The bartender placed an unopened 12-ounce bottle of Budweiser beer in a paper bag and handed the bag to Agent McKenzie. The bartender refused the offer of payment for the beer from Agent McKenzie's indicating that the beer was "on him." Agent McKenzie and Detective Neil left the licensed premises at approximately 11:55 p.m. on April 26, 1997. Upon leaving the licensed premises, Agent McKenzie carried the unopened bottle of beer in the paper bag without any attempt to conceal the beer on his person. Likewise, upon leaving the licensed premises, Detective Neil carried a half-full opened bottle of beer which he had purchased earlier from the bartender without any attempt to conceal the bottle on his person. In order to leave the licensed premises on April 26, 1997, Agent McKenzie and Detective Neil had to go pass two individuals who were providing services to Respondent's licensed premises. Neither of these individual, nor any other person providing services to Respondent's licensed premises on April 26, 1997, prevented Agent McKenzie or Detective Neil from leaving the licensed premises with the beer. There was no evidence presented By DABT to show that while Agent McKenzie and Detective Neil were in Respondent's licensed premises on April 18, 1997, and April 26, 1997, that the bartender sold or gave any other customer an alcoholic beverage packaged to go or that any other customer left the licensed premises with an alcoholic beverage. Respondent was not present in his licensed premises during the time that Agent McKenzie and Detective Neil were there on April 18, 1997, and April 26, 1997. There is insufficient evidence to show that the bartender's action on April 18, 1997, and April 26, 1997, was the result of Respondent's negligence, intentional wrongdoing, lack of diligence, lack of training for the employees, or lack of notice to customers that any alcoholic beverage purchased had to be consumed on the licensed premises. After the visits to the licensed premises on April 18, 1997, and April 26, 1997, Agent McKenzie concluded that there was no basis to the alleged complaint that controlled substances were being sold on the licensed premises. The designation "SRX" identifies a beverage license issued to business which is to be operated as restaurant. As a result of its investigation of Respondent's licensed premises on April 18, 1997, and April 26, 1997, DABT, as is its normal practice, examined the Respondent's licensed premises for continuing requirements applicable to special licenses such as a "SRX" license. Respondent is an experienced business person with 15 years experience in operating licensee premises. Respondent knew at the time of obtaining the license at issue in May 1995 that he had an obligation to maintain records sufficient to demonstrate that Respondent met the 51 percent requirement in each bi-monthly period. Respondent's Profit and Loss Statement for the months of January 1997, February 1997, March 1997, and April 1997, listed the total amount of revenue derived from the sale of food and non-alcoholic beverages and alcoholic beverages. However, this figure for alcoholic beverages was not supported by any daily records of sales. Respondent maintained no records as to the daily sales of alcoholic beverages on the licensed premises. Although Respondent presented guest checks for the daily sales of food and non-alcoholic beverages, the total of these checks for each month in question did not support the Respondent's Profit and Loss Statement for each corresponding month. Based on the Respondent's Profit and Loss Statement and other records furnished by Respondent for the months of January, February, March, and April 1997, the percentage of total gross revenue (sales of food, non-alcoholic beverages, and alcoholic beverages) derived from the sale of food and non-alcoholic beverages for the months of January 1997, February 1997, March 1997, and April 1997 was approximately 45 percent, 46 percent, 46 percent, and 44 percent, respectively.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of the penalty guidelines in Rule 61A-2.022, Florida Administrative Code, it is recommended that the Department enter a final order revoking Respondent's Alcoholic Beverage License, Number SRX4COP 63-04089 DONE AND ENTERED this 2nd day of June 1998, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages And Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32299-0792 Madeline McGuckin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Kenneth Glover, Esquire 505 Martin Luther King, Jr. Avenue Lakeland, Florida 33802
The Issue This matter arises out of the denial or rejection of a filing by the Liberty Bank of Cantonment with the Division of Alcoholic Beverages and Tobacco for the purpose of perfecting a lien against a beverage license pursuant to Section 561.65, Florida Statutes. Mr. Charles L. Hoffman, attorney for Liberty Bank of Cantonment, testified on behalf of the Petitioner. The Petitioner offered two exhibits into evidence and both were accepted without objection. The Respondent presented no evidence on its behalf. Neither party filed proposed findings of fact and conclusions of law. However, the Petitioner filed a Memorandum of Law in support of its legal argument as to why it should be granted a lien against Beverage License No. 27- 426. To the extent that the legal conclusions presented in that memorandum of law and the facts stated are not adopted in this order, they are considered to be irrelevant to the issues in this cause or not supported by the facts or the law.
Findings Of Fact On July 10, 1981, The Rafters, Inc. executed a security agreement in favor of the Liberty Bank of Cantonment. That security agreement is a part of Petitioner's Exhibit 1 and included a security interest in State Liquor License No. 27-426 issued in the name of The Rafters, Inc. On July 24, 1981, the necessary U.C.C. documents were filed in order to permit the Liberty Bank of Cantonment to file the proper documents with the Secretary of State. No documents were filed with the Division of Alcoholic Beverages and Tobacco. On September 20, 1982, the Petitioner first filed the necessary documentation with the Division of Alcoholic Beverages and Tobacco for the purpose of perfecting a lien pursuant to Section 561.65, Florida Statutes. The Division of Alcoholic Beverages and Tobacco rejected the filing on the grounds that it was filed beyond the 90-day period provided in Section 561.65(4), Florida Statutes. On October 19, 1982, The Rafters, Inc. filed its answer to an amended complaint in foreclosure which had been filed by the Liberty Bank of Cantonment against the property set forth in the aforementioned security agreement. In its answer, The Rafters, Inc. admitted all allegations of the amended complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco enter a Final Order rejecting the application for a lien filed by the Petitioner to perfect a security interest in Beverage License No. 27-426. DONE and ORDERED this 20th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1983. COPIES FURNISHED: Charles L. Hoffman, Jr., Esquire Seventh Floor, Seville Tower 226 South Palafox Street Post Office Box 1831 Pensacola, Florida 32598 Harold F.X. Purnell, Esquire William A. Hatch, Esquire General Counsel Department of Business Regulation Dept. of Business Regulation 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Howard M. Rasmussen, Director Gary Rutledge, Secretary Division of Alcoholic Beverages Dept. of Business Regulation and Tobacco The Johns Building 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301
The Issue Whether or not on or about the 14th of March, 1976, Pearlie Mae Smith, a licensed vendor, did have in her possession, permit or allow someone else, to wit: Junior Lee Smith, to have in their possession on the licensed premises, alcoholic beverages, to wit: 5 half-pints of Smirnoff Vodka, not authorized by law to be sold under her license, contrary to s. 562.02, F.S.
Findings Of Fact On March 14, 1976, and up to and including the date of the hearing, the Respondent, Pearlie Mae Smith, held license no. 72-65, series 2-COP with the State of Florida, Division of Beverage. The licensed premises is located at 1013 West Malloy Avenue, Perry, Florida. On the morning of March 14, 1976, Officer B.C. Maxwell with the State of Florida, Division of Beverage acting on an informant's information, searched the informant to determine if the informant had monies other than the money that the officer had given him or any alcoholic beverages on his person. Once the informant had been searched and it was determined that the informant was carrying with him only the money that the officer had given him to purchase alcoholic beverages, the informant was sent into the subject licensed premises. The informant returned with a half-pint bottle of alcoholic beverage not permitted to be sold on the licensed premise and indicated that this purchase was made from one Junior Lee Smith. Later in the morning, around 11:30, officers of the State of Florida, Division of Beverage entered the licensed premises and an inspection of those premises revealed a bag containing 5 half-pint bottles of Smirnoff Vodka in the kitchen area of the licensed premises. This bag and contents were admitted as Petitioner's Exhibit #2. The 5 half-pint bottles of Smirnoff Vodka are alcoholic beverages which are not allowed to be sold under the series 2-COP license on the subject premises. When the officers entered, the same Junior Lee Smith was in the licensed premises and indicated that he was in charge of the licensed premises and had been selling alcoholic beverages for "quite some time" together with his wife, Pearlie Mae Smith, the licensee. The bag he indicated, had been whiskey that had been left over from the night before.
Recommendation It is recommended that based upon the violation as established in the hearing that the licensee, Pearlie Mae Smith, have her beverage license suspended for a period of 30 days. DONE and ENTERED this 19th day of December, 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: Larry D. Winson, Esquire Staff Attorney Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Mrs. Pearlie Mae Smith 1013 West Malloy Avenue Perry, Florida
The Issue Whether respondent's Rule 7A-3.15(3) (a) and (d), containing criteria for special restaurant alcoholic beverage licenses, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact On March 12, 1981, DABT issued petitioner a special restaurant alcoholic beverage license, No. 23-4626 SRX, Series 4 COP. (P-2, P-3.) Under the authority of this license, petitioner operates a business at 49 Northwest Fifth Street, Miami, Florida, which serves food and beverages (alcoholic and nonalcoholic) to the general public. (Testimony of Saric; P-2, P-3.) By notice dated August 28, 1981, as later amended, DABT sought to suspend or revoke petitioner's beverage license or impose a civil penalty. As grounds, DABT accused petitioner of violating Chapter 561, Florida Statutes, and Rule 7A-3.15, Florida Administrative Code. It contended that respondent violated Rule 7A-3.15 between April 28 and August 5, 1981, by failing to "prepare any meals on the premises . . . and by failing to "maintain tables of adequate size to accomodate [sic] the service of 200 full-course meals in accordance with the number of chairs found at that table.
The Issue The issue presented is whether Respondent failed to maintain separate records of purchases and gross sales of all alcoholic and non-alcoholic beverages and food in violation of Section 561.20, Florida Statutes, and Florida Administrative Code Rule 61A-3.0141, and if so, what penalty, if any, is appropriate. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect of the date of this Recommended Order).
Findings Of Fact Respondent holds license number 69-02639, series 4COP SRX. An SRX license authorizes Respondent to sell alcoholic beverages on the premises of Jon's Bar & Grill, located at 2485 N. Highway 17-92, Lake Monroe, Florida ("the licensed premises"). Persons issued "SRX" licenses must meet certain statutory requirements to ensure that they are operating bona fide restaurants. Among other requirements, Respondent must maintain separate records of all purchases and gross sales of all alcoholic and non-alcoholic beverages and food. Respondent's license application specifically informed Respondent that he must meet the specific requirements of this type of license. On March 17, 1997, Petitioner's Special Agent Richard Hurlburt met with Respondent for the purpose of conducting an SRX inspection to determine Respondent's compliance with SRX license requirements. An SRX inspection includes an audit of the licensee's records to determine the percentage of gross revenue derived from the sale of food and non-alcoholic beverages. Respondent was unable to produce the records he is statutorily required to maintain. Agent Hurlburt issued a notice to produce records relating to the operation of the restaurant. On August 12, 1997, Petitioner issued a notice of administrative complaint against Respondent for failure to maintain separate records of all purchases and gross sales for non-alcoholic and alcoholic beverages and food in violation of Section 561.20. Respondent has not produced the records he is statutorily required to maintain.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a $1,000 civil penalty against Respondent and revoking alcoholic beverage license no. 69-02639, series 4COP SRX, without prejudice to obtain any other type license, but with prejudice to obtain another SRX special license for 5 years from date of the Final Order. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon county, Tallahassee, Florida. DANIEL MANRY 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 6th day of August, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 George Lewis, Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe street Tallahassee, Florida 32399 Jon Gustafson, pro se 956 Lake Ashby Road New Smyrna, Florida 32069
The Issue Whether the Petitioner, Moishes Steakhouse & Seafood, Inc., timely submitted an application to record a lien for license number 23-02731 4COP.
Findings Of Fact On or about March 3, 1999, Armar Inc., Arnaldo Bou, individually, and Martha Pinango, individually, as debtors, and the Petitioner, by Eugenio D'Arpino, as president of the company, the secured party, executed a security agreement (chattel mortgage) related to beverage license 23-02731, series 4COP. Such security agreement recognized a priority lien for the Petitioner, Moishes Steakhouse & Seafood, Inc., and included a promissory note executed by the debtors. The promissory note, dated March 3, 1999 (presumably executed on or about that date), provided: THIS NOTE IS NOTE ASSIGNABLE AND NON- ASSUMABLE WITHOUT THE EXPRESS WRITTEN APPROVAL OF THE SECURED PARTY. THIS NOTE IS SECURED BY A SECURITY AGREEMENT (CHATTEL MORTGAGE) AND UCC-1 WHICH SHALL CREATE A PRIORITY LIEN (1ST PLACE LIEN) ON STATE OF FLORIDA ALCOHOLIC BEVERAGE LICENSE NO: 23- 01686, series 4 COP quota. The security agreement and promissory note were not provided to the Department within 90 days of March 3, 1999. Apparently, the fact that the note and security agreement make reference to different alcoholic beverage license numbers is not an issue. Neither party has raised that issue. The Petitioner forwarded the note and security agreement to the Department for recordation on or about September 21, 1999. At that time the Department received an application to record a lien for license no. 23-02731, series 4COP. On October 11, 1999, the Department sent Petitioner a letter declining the application because it was not made within 90 days after the creation of the lien. The Department requested a newly executed security agreement so that the dates would show the request for recording within 90 days of the application. It is the Department's position that the lien application should have been submitted within 90 days of its creation in order to comply with the mandatory guidelines of the statute. For purposes of this case, the Department argued that the "creation of the lien" was on or about March 3, 1999, or, at the latest, March 15, 1999 (a date noted in the escrow agreement). The Petitioner timely sought an administrative review of the Department's decision. It is the Petitioner's position that the lien did not "break escrow" until August of 1999, and that, as a matter of law, that is the point in time from which the 90 day period should run. From the Petitioner's perspective, the "creation of the lien" as used by the statute dates from when the transaction broke escrow. All parties agree that the statute does not specifically address escrow transactions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order approving the Petitioner's application to record a lien on the subject alcoholic beverage license. DONE AND ENTERED this 1st day of March, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 1st day of March, 2002. COPIES FURNISHED: Sherrie Barnes, Esquire Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Major Jorge R. Herrera Department of Business and Professional Regulation 8685 Northwest 53rd Terrace Augusta Building, Suite 100 Miami, Florida 33166 Louis J. Terminello, Esquire Terminello & Terminello, P. A. 2700 Southwest 37th Avenue Miami, Florida 33133-2728 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's license number 42-55 be revoked. Respectfully submitted and entered this 27th day of February, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. C.A. Nuzum Director Division of Beverage 210 Johns Building Tallahassee, Florida Mr. Charles F. Tunnicliff Department of Business Regulation 725 S. Bronough Street Room 210, Johns Building Tallahassee, Florida 32304 Mr. White Route 2, Box 13B Marianna, Florida 32446
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: On October 24, 1985, Petitioner filed an initial application with Respondent to obtain an alcoholic beverage license. The alcoholic beverage license was to be used in the operation of a small restaurant which Petitioner owned, known as El Conquistador Restaurant, in Homestead, Florida. The Petitioner is the sole owner of El Conquistador Restaurant. The application listed the Respondent, Maria Andarcio as the sole proprietor and only person having a financial interest in the business known as El Conquistador Restaurant. During the processing of the application, Mr. Ross, the investigator assigned to Petitioner's case, noticed that the application appeared to have several discrepancies. In particular, Mr. Ross was concerned because the financial information submitted with the initial application listed Julio Andarcio, Respondent's estranged husband, as the sole depositor of the expense account but he was not listed as having any financial interest in the business. Secondly, Petitioner failed to provide sufficient information regarding her employment history. Lastly, a lease which was part of the initial application, identified a potential undisclosed interest, Jose Osario, as a co- leasee. On November 15, 1985, Mr. Ross, routinely mailed a "14 day letter" to Petitioner requesting additional information. In particular, the "14 day letter" directed the Petitioner to provide additional information within 14 days from the date of receipt of the letter. The additional information requested was as follows: List occupation for the past 5 years on personal questionaire. Julio Andarcio must be fingerprinted and submit personal questionaire." The Petitioner failed to provide the information requested in the 14 day letter. Thereafter, Respondent was unable to fully investigate the license application and denied the Petitioner's license on January 8, 1986. For some reason, the Petitioner did not receive the 14 day letter which Respondent sent by regular mail. Therefore, she did not respond within the requested time period. The Petitioner was born in Cuba and speaks very little English. The language barrier contributed to the apparent discrepancies in Petitioner's initial application. Mr. Ross opined that based on all of the information that he had received up to the time of the hearing, the Petitioner would have been granted a beverage license had she only responded to the "14 day letter."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered allowing the Petitioner 20 days from the date thereof in which to provide Respondent with the information requested in the initial "14 day letter," thereby making her application complete. The Respondent shall thereafter review and process the application in the standard and routine manner. DONE and ORDERED this 24th day of October, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 24th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1176 Rulings on Proposed Findings of Fact Submitted by the Petitioner (None Submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. Partially adopted in Finding of Fact. Matters not contained therein are rejected as unnecessary. Adopted in Finding of Fact 5. Rejected as a recitation of testimony and/or argument. Partially adopted in Finding of Fact. Matters no contained therein are rejected as subordinate. COPIES FURNISHED: Armando Gutierrez, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1077 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927
