Findings Of Fact By check dated September 17, 1974 Willie Calhoun attempted to pay the 1974-75 beverage license fee for Blount's Place and the check was returned to the Division stamped "Closed". The witness for the Division testified that the check was returned marked "NSF". Willie Calhoun is the son of Annie Lee and with his mother, owns the "6129 Corporation" known as King the Tailor. This is their primary business and the accounts from Blount's Place are co-mingled with those funds. This business is located in a section of Miami which has been the locale of numerous racial incidents and the proprietors were unable to obtain fire insurance. A fire occurred at this store in 1973 which burned the assets and records. The IRS audited the corporation and levied against the owners. When the check for the 1974-75 beverage license was written there was sufficient funds in Willie Calhoun's account to honor the check; however, before it was presented for payment the IRS had garnished the account. During the period between 1972 and December 2, 1975 Willie Calhoun and his mother paid the IRS some $42,000 in taxes and penalties. They now have returned to a solvent status and their beverage license payments are current.
The Issue Whether Respondent committed the violations alleged in the Administrative Action, and, if so, what disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a restaurant, Dinosaur's Café and Sports Bar, located in Boynton Beach, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a Special Restaurant License (license number 60-11570 4COP SRX) authorizing it to sell alcoholic beverages on the premises of Dinosaur's Café and Sports Bar. On September 28, 1999, DABT Special Agent Jennifer DeGidio conducted an inspection of the premises of Dinosaur's Café and Sports Bar. Her inspection revealed that the premises had available seating for less than 150 patrons and that there were no records on the premises regarding the purchase and sale of food, alcoholic beverages, and non-alcoholic beverages. At no time had DABT given Respondent written approval to maintain these records at a designated off-premises location. During her September 28, 1999, inspection, Special Agent DeGidio issued and served on Respondent notices advising Respondent that its failure to have seating for at least 150 patrons and to maintain food and beverage records on the premises for a minimum of three years from the date of sale was in violation of the law and that, if these violations were not remedied within 14 days, administrative charges would be brought against Respondent. Special Agent DiGidio returned to the premises of Dinosaur's Café and Sports Bar on October 12, 1999, to find that the noticed violations had not been corrected. There were still fewer than 150 seats for patrons, and Respondent was again unable to produce the required records on the premises. The Administrative Action that is the subject of the instant controversy was issued on November 16, 1999. As of that date, Respondent had failed to timely remit to DABT $16.75 in surcharge monies that Respondent owed DABT for alcoholic beverages it had sold at retail for on-premises consumption at Dinosaur's Café and Sports Bar.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that DABT enter a final order finding Respondent committed the violations alleged in the Administrative Action, and disciplining Respondent therefor by revoking its license "without prejudice to obtain any other type of license, but with prejudice to obtain the same type of special license for 5 years"; fining Respondent $1,000.00; and requiring Respondent to pay the $16.75 in surcharge monies it owes DABT, plus applicable penalties and interest. DONE AND ENTERED this 21st day of August, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2001.
Findings Of Fact Respondent is the holder of a beverage license grand-fathered in by Section 561.20(2)(b), Florida Statutes (1975), which has as a condition that respondent maintain facilities for serving full course meals to 200 patrons. After being closed for some years, respondent reopened for business on May 13, 1977. David Maloney was hired as cook and manager and became an officer of respondent. On June 3, 1977, Mr. Grady Leon Broxton, Jr., a beverage officer in petitioner's employ, inspected respondent's premises and inventoried chairs, tables, and tableware. He found 204 chairs and 51 tables, 176 plates, 125 forks, 80 knives, 250 bread dishes, 250 salad bowls, 86 cups and less than 200 spoons. Accordingly, Officer Broxton issued a formal notice of these deficiencies, directing respondent to bring up to 200 the numbers of plates, spoons, forks, knives and cups. When Officer Broxton returned on June 9, 1977, he found that respondent had cured the deficiencies and was in full compliance with the conditions of its license. By enacting Florida Laws Chapter 77-409, the 1977 Legislature increased the excise tax on packages containing 20 cigarettes from 17 to 21 cents per package, effective July 1, 1977, Florida Laws, Chapter 77-409, ss. 1 and 5. On July 7, 1977, Officer Broxton entered respondent's premises and advised David Maloney that he should multiply by $.04 the number of cigarette packages respondent had for sale on July 1, 1977, and send a check or money order in that amount to petitioner. Officer Broxton noticed approximately five cartons of cigarettes on the premises at that time. On July 10, 1977, David Maloney wrote petitioner that, as of July 1, 1977, "only two packs of cigarettes were on hand," petitioner's exhibit No. 2, and enclosed a check in the amount of eight cents ($.08). In the cover letter, Mr. Maloney addressed petitioner's employees as "you Assholes." Shortly after mailing the letter and check, Mr. Maloney quit respondent's employ without notice. When respondent's president, William B. Miller, III, discovered that Mr. Maloney had left, he also noticed that cigarettes, liquor and silverware were missing. On July 21, 1977, petitioner's Lieutenant George Fader entered respondent's premises and noticed customers drinking alcoholic beverages at the bar. He introduced himself to Mrs. Miller, who was behind the bar. She said the eight cents ($.08) must have been a mistake and that Mr. Maloney had gone but that she did not know where. Lt. Fader noticed that there was a pool table in the restaurant. At the time of Lt. Fader's visit, Mr. Miller was at respondent's bank putting in stop payment orders for fear Mr. Maloney might have drawn checks on respondent's account for unauthorized purposes. Before leaving, Lt. Fader made a hurried count of chairs, exclusive of folding chairs, and concluded that there were some 185 on the premises. The following day, Lt. Fader and Officer Broxton returned to respondent's premises and advised Mr. Miller that respondent could be charged criminally with tax fraud. When petitioner's agents told Mr. Miller that they estimated that there were 60 packages of cigarettes on the premises on July 1, 1977, Mr. Miller offered to write a check for two dollars and forty cents ($2.40). Mr. Miller wrote petitioner a check, but, at Lt. Fader's suggestion, the amount was reduced by eight cents ($.08) to two dollars and thirty-two cents ($2.32). Officer Broxton counted 44 tables and 140 chairs, excluding folding chairs, even though he had included these on his earlier visit. He did not count folding chairs on July 22, 1977, because Lt. Fader directed him not to. Officer Broxton found 121 teaspoons, 112 forks, 154 knives and 118 cups on July 22, 1977. Lt. Fader told Mr. Miller that there need not be 200 cups, if glasses and cups together numbered 200 and if there were 200 water glasses. There was no evidence as to the number of glasses on respondent's premises on July 22, 1977.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty against respondent's license in the amount of twenty-five dollars ($25.00). DONE and ENTERED this 27th day of February, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Francis Bayley, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Mr. W. R. Phillips, Esquire Post Office Box 594 Carrabelle, Florida 32322
The Issue Whether surcharge taxes and excise taxes, plus penalties and interest, attributable to the sale of alcoholic beverages should be assessed against the Respondent, Trans World Airlines, Inc., d/b/a Trans World Airlines? Whether the Respondent's Division of Alcoholic Beverages and Tobacco license/permit number 78-14 should be subjected to a civil penalty or should be suspended or revoked for failure to timely file surcharge and excise tax reports and surcharge and excise taxes to the Petitioner?
Findings Of Fact The Petitioner is the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The Respondent is Trans World Airlines, Inc., d/b/a Trans World Airlines. The Respondent has be granted an alcoholic beverage license by the Petitioner. That license is identified as license number 78-14, series X (hereinafter referred to as the "License"). At all times relevant to this proceeding the Respondent held the License. From January 1, 1988, through January 15, 1991 (hereinafter referred to as the "Tax Period"), the Respondent operated as an air carrier in the State of Florida. During the Tax Period the Respondent sold alcoholic beverages to passengers on aircraft flights over the State of Florida. As a result of the sales of alcoholic beverages over Florida airspace, the Respondent has incurred surcharge and excise tax liability to the Petitioner for the Tax Period. The Respondent has not remitted any amount of its surcharge or excise tax liability to the Petitioner for the Tax Period. The Respondent has failed to file monthly surcharge or excise tax reports during the Tax Period. In February, 1991, the Petitioner performed an audit of the Respondent for the Tax Period. During the Petitioner's audit of the Respondent, the employee of the Respondent responsible for remitting alcoholic beverage reports and taxes to various states, including Florida, admitted to the Petitioner that the Respondent remitted its alcoholic beverage taxes to other states and did not understand why the Respondent did not remit its alcoholic beverage surcharge and excise taxes to Florida. The Petitioner, as a result of its audit of the Respondent, computed the Respondent's liability for surcharge and excise taxes for the Tax Period. The Petitioner used a standard airline industry apportionment formula to compute the Respondent's tax liability. The apportionment formula utilized by the Petitioner to compute the Respondent's tax liability to Florida for the Tax Period consisted of the following computation (hereinafter referred to as the "Apportionment Formula"): (a) a ratio is computed by dividing total revenue air miles (based upon revenue plane miles) flown by the Respondent by the total revenue miles flown by the Respondent in Florida; (b) the ratio is multiplied by the total gallons of alcohol sold by the Respondent to determine the estimated amount of alcohol sold in Florida; and (c) the estimated amount of alcohol sold in Florida is multiplied by the Florida tax rate(s) to determine the total alcohol tax payable. In applying the Apportionment Formula, the Petitioner used revenue plane miles in calculating the first ratio of the Apportionment Formula. Line 22, page 18, line 9, page 28, lines 13-20, page 37, Transcript of August 21, 1991. The Petitioner did not use revenue passenger miles as argued by the Respondent. Revenue plane miles looks at the total miles flown by an aircraft without regard to the number of passengers on a flight. Revenue passenger miles takes into account the number of passengers on each flight by including the number of miles a plane flies times the number of passengers on board that flight. Revenue passenger miles takes into account the difference in the size of each plane involved in a flight. Revenue passenger miles more accurately reflects the amount of alcohol which may be consumed. The information utilized by the Petitioner in applying the Apportionment Formula to the Respondent for the Tax Period was information provided by the Respondent. The Respondent provided the Petitioner with revenue plane miles and not revenue passenger miles. Therefore, the Petitioner reasonably relied upon and used the best information available to it to compute the Respondent's liability for surcharge and excise taxes. It is reasonable for the Petitioner to use revenue plane miles to compute surcharge and excise taxes attributable to the sale of alcohol in Florida absent a taxpayer providing revenue passenger miles. The Apportionment Formula utilized by the Petitioner is a fair method of computing the tax liability of the Respondent to the State of Florida for the Tax Period. Using the data provided by the Respondent was reasonable. If the Respondent had provided revenue passenger miles, the Petitioner should have used that information in applying the Apportionment Formula. Based upon an application of the Apportionment Formula and using the data provided by the Respondent to the Petitioner, the Respondent owes the following amounts for the Tax Period: Surcharge: Surcharge $ 9,580.38 Penalty 1,699.87 Interest 356.01 Total $11,636.26 Excise: Excise $40,285.49 Interest 7,279.60 Total $47,565.09 The total liability of the Respondent for the Tax Period is $59,201.34. After the Petitioner's audit of the Respondent, the Respondent provided the Petitioner with revenue passenger miles and revenue ton miles. Revenue ton miles have no substantive affect on the taxable event at issue in this proceeding; the sale of alcohol in Florida. It is not clear whether the revenue passenger miles provided by the Respondent can be used by the Petitioner in applying the Apportionment Formula. If so, that information should be used to calculate the Respondent's liability for taxes, penalties and interest in this case. If the information is not sufficient, the parties agreed that the record would remain open to give the Respondent an opportunity to provide any information needed to calculate the Respondent's liability. The Respondent presented evidence concerning the percentage of flights by the Respondent during which alcoholic beverages were served over Florida and the percentage of flights by the Respondent during which alcoholic beverages were not served over Florida. This evidence is rejected because it did not specifically apply to the Tax Period and is not otherwise credible to prove the facts the Respondent was attempting to prove. So called "complimentary" alcoholic beverages are provided by the Respondent to some passengers. These beverages, however, are received as part of the consideration a passenger receives for purchasing a ticket from the Respondent. Such beverages are, therefore, sold by the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be issued requiring the Respondent, Trans World Airlines, Inc., d/b/a Trans World Airlines, to pay surcharge and excise taxes, plus penalties and interest thereon, based upon application of the Apportionment Formula in the amounts set out in finding of fact 19. The amount of surcharge and excise taxes, plus penalties and interest thereon, may be recalculated by the Petitioner based upon an application of the Apportionment Formula utilizing revenue passenger miles for the Tax Period if revenue passenger miles have been, or are subsequently, provided to the Petitioner by the Respondent. It is further recommended that the Respondent be assessed a civil penalty of $1,000.00 for its failure to remit surcharge taxes and a civil penalty of $1,000.00 for its failure to remit excise taxes. RECOMMENDED this 13th day of November, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2441 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2. 2 3. 3 5. 4 6. 5-6 Hereby accepted. 7 10/ 8 7. 9-11 11. 12 12. 13 13. 14 16. 15 18. But see 15-17. 16 17. See 12 and 18. Conclusion of law. Not relevant. See 12. 21-22 Although true, the burden of proof in this case was on the Petitioner. 23 8-9. 24 Not relevant. 25-26 19. 27 20. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2-3. 3 5. 4 6. 5 12-13. 6 See 14-15. 7 See 21. 8-10 Not supported by the weight of the evidence. COPIES FURNISHED: Robin L. Suarez Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Thomas P. Lombardi Director - Tax Administration 100 S. Bedford Road Mt. Kisco, New York 10549 Donald D. Conn, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Respondent committed the violation alleged in the Administrative Action, and, if so, what disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a restaurant, Atlantic Street Station, located in Delray Beach, Florida. Since 1998, Respondent has held a Special Restaurant License (license number 60-11520 4COP SRX), authorizing it to sell alcoholic beverages on the premises of Atlantic Street Station. During the months of January and February 2000, $66,729.49, or slightly less than 33% of Atlantic Street Station's total gross revenues of $205,679.76, came from the retail sale on the licensed premises of food and non-alcoholic beverages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that DABT enter a final order finding Respondent violated Section 561.20(2)(a)4., Florida Statutes, as alleged in the Administrative Action, and disciplining Respondent therefor by revoking its license "without prejudice to obtain any other type of license, but with prejudice to obtain the same type of special license for 5 years," and fining Respondent $1,000.00. DONE AND ENTERED this 16th day of February, 2001, in Tallahassee, Leon County, Florida. ____________________________ STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2001.
The Issue The issue for determination is whether Respondent's alcoholic beverage license should be disciplined for violation of Chapter 561, Florida Statutes. Resolution of this issue requires a determination of whether Respondent correctly reported and remitted alcoholic beverage surcharges.
Findings Of Fact Respondent is Betty Schmidt. At all times pertinent to these proceedings, she held alcoholic beverage license no. 74-00275, Series 2-COP, for a licensed premises located at 1161 North U.S. 1, Ormond Beach, Florida. Petitioner's auditor, Muriel Johnson, performs audits on vendors monthly surcharge reports in order to confirm the accuracy of those reports and ensure compliance with statutory and administrative rule requirements. The audit in the instant case covered the reporting period of Respondent from September 1, 1994 through August 31, 1997. Alcoholic beverage licensees are afforded an opportunity to elect to report and pay the surcharge by either the purchase method or the sales method. Under the purchase method, a licensee pays the surcharge on alcoholic beverages purchased from authorized distributors. Under the sales method, licensees pay the surcharge on alcoholic beverages sold for consumption on the premises. Respondent elected to report via the sales method. A licensee's reporting under the sales method is audited by the Sales Depletion Method. Under this methodology, a beginning inventory is ascertained. Second, purchases made by the licensee for the audit period are computed. Third, an ending inventory for the audit period is ascertained. Fourth, Gross Gallonage Available For Sale is computed by adding the beginning inventory to the purchases made during the audit period and then subtracting the ending inventory. Fifth, the Net Gallonage Available For Sale during the audit period is calculated by subtracting from the Gross Gallonage an allowance for spillage and a cooking adjustment. The end result is termed the Adjusted Sales Gallonage from which amount the amount of surcharge owed for the audit period is determined. Because Respondent did not keep inventory figures, and based upon her assertion that her inventory was generally the same, Respondent and the auditor agreed upon zero as the starting inventory. Second, purchases of alcoholic beverages by Respondent during the audit period were computed based upon purchase figures provided by Respondent and verified independently through records obtained from distributors. Third, the ending inventory was agreed to be zero. Fourth, The gross gallonage available for sale was determined by adding the beginning inventory (zero) to the purchases made during the audit period and subtracting the ending inventory (also zero). Fifth, adjustments to net gallonage for sale included allowances for spillage and package sales. Notably, the audit revealed that Respondent was treating liquor mixers as wine coolers and paying a lower tax on that basis when in fact wine coolers are taxed at the rate of one ounce of liquor per container at a higher rate. Adjustments for this practice were also made. Finally, the total surcharge due for the audit period was calculated and compared to the amount already reported in order to determine the amount of under- reported or over-reported tax. Respondent sets up various disbursement stations for beer on her property during “bike week” in Daytona Beach. With only one cash register, the sales at the various stations are maintained by hand on clipboards. Additional staff is employed at this time and Respondent is not personally present at each station to monitor sales reporting. Frequent sources of alcoholic beverage sales that are not captured by a license’s cash register include theft, breakage, leakage, spillage, overpouring of drinks, and free drinks. The amounts of alcoholic beverage that are lost to a cash register in these ways are captured by Petitioner’s sales audit method. While Respondent keeps good records, no cash register method can ever capture all of the alcoholic beverages available for consumption on premises and consequently there will always be some discrepancy as the result of a sales method audit. As established by results of Petitioner's audit, Respondent underpaid surcharges for the audit period in the amount of $890. Additionally, it is established that Respondent owes $557.66 in penalties and $193.33 in interest on the payment deficiency.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring payment by Respondent in the amount of $1641.10, the amount of total tax and liabilities claimed by Petitioner to be due. DONE AND ENTERED this 23rd day of November, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1998. COPIES FURNISHED: Elsa Lopez Whitehurst, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Betty Schmidt Smiley's Tap 1161 North U.S. 1 Ormond Beach, Florida 32174 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 Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner William G. Brunet owns and operates the Music Box Lounge, a bar in Lake Worth, Florida. Mr. Brunet is homosexual as are his employees and many of the patrons of the Music Box Lounge. At no time pertinent to these proceedings did any agent or employee of either respondent take any action affecting petitioner with any motive or intent to discriminate against petitioner on account of his homosexuality. On October 25, 1977, Margaret Sager called the Music Box Lounge to arrange to see the books for the period September 1, 1974, to August 31, 1977. Two days later she visited the Music Box Lounge where she spoke to the bartender, John J. Dolan, and to petitioner. On the basis of these discussions, Ms. Sager filled out a form. This form, which petitioner signed, was received in evidence as respondents' exhibit No. 1. For the most part, the form is an abbreviated price list for beer, champagne, other wine, and liquor, covering the period 1974 through 1977. The form indicates that one ounce drinks are poured at petitioner's establishment, and the notation "1 case of beer a week personal- 5 bottles of liq. per week personal" appears at the bottom of the form. Ms. Sager compared invoices reflecting petitioner's purchases of alcoholic beverages with the entries in petitioner's general ledger purporting to represent such purchases and found no discrepancies. She inquired of petitioner's suppliers as to how much the kegs of beer they had sold petitioner contained. She made allowance for petitioner's personal weekly use of one case of beer and four or five bottles of liquor, assumed that petitioner sold 30 drinks for each quart bottle of liquor he purchased from suppliers, and projected petitioner's gross sales on these assumptions. After a conference with petitioner and his accountant, and on the advice of her supervisor, Ms. Sager substituted the figure 25 drinks per quart to arrive at a second projection. By multiplying .045 times this second estimate, and subtracting from the product the amount of sales tax petitioner had remitted for the period September 1, 1974, to August 31, 1977, Ms. Sager arrived at the figure four thousand fourteen dollars and twenty-three cents ($4,014.23), representing the alleged deficiency on account of petitioner's sales. After the audit, Ms. Sager concluded that petitioner had remitted what he probably felt was a true figure for the period in question. In estimating petitioner's gross sales, Ms. Sager made no allowance for "happy hours" or other promotions; made no allowance for theft or bartenders' drinking; and made no allowance for the sale of liquor by the bottle rather than by the drink. During the period in question, petitioner operated his bar on two shifts, from ten in the morning till six in the evening and from six till closing, at two the following morning. Prices of drinks were not stated separately from sales tax due on account of their sale. The bartender started each shift with a certain amount of money in the cash register, and was instructed to ring up each sale as it occurred. At the end of the day, the bartender put the cash register tape and the money in the cash register into a box. The following day receipts were tabulated. Petitioner's accountant used the resulting daily reports in compiling sales tax reports, which petitioner filed regularly during the audit period in question. All but the first four monthly reports petitioner made during the audit period were received as a joint composite exhibit on August 15, 1978. During the period in question, petitioner sold package goods to his employees and friends at cost; sales tax was collected on these transactions. From April of 1975, to February of 1976, ten to fifteen quarts of liquor were sold at cost each week. Bruce MacFallon, who worked for petitioner as a bartender during and about the year 1974, purchased five cases of liquor from petitioner in a year's time. Gerald P. Mooney, who worked for petitioner as a bartender during the entire audit period, bought about fifteen bottles of liquor at wholesale from petitioner in a year's time. In addition, petitioner gave Mr. Mooney two or three bottles of liquor a year as presents. There was no evidence that petitioners' employees stole from him. At least during the period from April 1975 to February 1976, there were two sets of prices for drinks at petitioner's bar, one set for each shift. From four to six in the afternoon, moreover, prices were further reduced. Respondent's exhibit No. 1 does not reflect these diurnal price fluctuations. John J. Dolan, who worked the day shift as a bartender from April 1975 to February 1976, poured an ounce and a half of liquor for most drinks, but used two ounces in each martini. Bruce MacFallon poured up to two ounces of liquor in each regular drink and more in each manhattan or martini he prepared. He never poured as little as one ounce of liquor in a drink. Gerald P. Mooney poured one and one quarter to one and one half ounces of liquor in each normal drink he mixed and two to three ounces of liquor in each martini or manhattan he prepared. Martinis were especially popular during "happy hours." Petitioner authorized his bartenders to give complimentary drinks to good customers. As a rule of thumb, Mr. Mooney gave two or three free drinks a night to any customer who regularly spent twenty-five dollars or upwards on visits to the bar. On an average day, Mr. Dolan gave away fifteen to twenty or more highballs and ten or more beers. Mr. MacFallon gave away free drinks for every so many sold to a customer and has given away as many as twenty drinks a day in this fashion. Respondent's exhibit No. 1 overstates the prices petitioner charged for beer during the audit period in question. There was testimony to the effect that bars catering to homosexuals face stiffer competition than other bars and resort to promotions involving sales of liquor at reduced prices more often. Whether or not it is true, this general proposition has no bearing on the specific matters developed in the evidence in the present case. Except insofar as they recite that Ms. Sager was inexperienced and unfamiliar with the operation of bars and that she failed to consider spillage, petitioner's proposed findings of fact have been adopted in substance, insofar as relevant and consistent with the foregoing findings of fact.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondents abandon the revised notice of proposed assessment and refund all monies collected pursuant to the revised notice of proposed assessment, except for one hundred thirty-five dollars and eighty-nine cents ($135.89), together with penalty and interest thereon. DONE and ENTERED this 7th day of September, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1978. COPIES FURNISHED: David S. Meisel, Esquire Rogers & Meisel 400 Royal Palm Way Palm Beach, Florida 33480 E. Wilson Crump, II, Esquire Assistant Attorney General Tax Division, Northwood Mall Tallahassee, Florida 32303
