Findings Of Fact George Thayer is the holder of a special alcoholic beverage license, number 74-0643SR-4COP, for the premises known as George's Place at 832 South Martin Luther King Boulevard, Daytona Beach, Florida. He has held that license since 1965. DABT continues to assert that he has held that license since 1955, but there is not one shred of evidence to support that assertion. Both Joseph Ogonowski, a DABT investigator, and Mr. Thayer testified that the license in question was issued on July 23, 1965. Thayer's license was issued under a special provision for restaurants which no longer exists. The SR class of license required that certain conditions be met. In applying for and qualifying for the license in question, Mr. Thayer signed an affidavit attesting that he would comply with all the conditions applicable to the SR special license. Specifically, in that affidavit, Mr. Thayer attested that: . . . said licensed premises are to be operated primarily as a restaurant and contains all necessary equipment and supplies for serving full course meals regularly, has accommodations for serving @200 or more patrons at tables and occupies 4,000 square feet or more floor space under a permanent roof. Further, that if the license applied for is approved and a Special License is issued, the premises shall be operated as a bonafide restaurant and that no alcoholic beverages will be served or sold when the restaurant is not open for business. On March 13, 1990, Joseph Ogonowski, a law enforcement investigator with 30 years' experience at DABT, conducted an inspection of George's Place at approximately 2:00 o'clock P.M. Mrs. Thayer was tending bar when Ogonowski arrived. There were several patrons drinking what appeared to be alcoholic beverages at the bar and in the pool hall. There was no food being prepared or served. The kitchen, which was accessible only from behind the bar, was apparently closed. There was no appearance that any food was in or had been recently prepared in the kitchen. There was a separate part of the premises, called the disco room, which was not lit or air conditioned and was locked behind a metal gate. The disco room contained 134 chairs at tables. The bar contained enough tables and chairs for six or eight people to be served at tables. There was no menu posted or offered. There was not enough china and silverware to serve 200 people. There was some plastic tableware. DABT's apparent policy of not counting plastic tableware is not a rule and must therefore be explicated at hearing. No such evidence was presented in this case. No proof that the beverages being served were alcoholic beverages was presented by DABT. Mr. Ogonowski issued a warning notice citing inadequate seats and tables, inadequate square footage open to the public, and the need for additional china and silverware. Notice was given that a reinspection would occur in ten days. Mr. Ogonowski reinspected the premises on March 29, 1990. Nothing had changed. The kitchen and disco room were closed and no food was being served on the premises. Mr. Ogonowski issued a Final warning notice again citing the lack of seats, tables, china, and silverware. A reinspection was again scheduled. On April 13, 1990, Ogonowski again reinspected the premises at about 10:00 o'clock A.M. A Bill of Fare was posted showing full course meals being served. There were still inadequate seats at tables and china and silverware. No food was being served, but it was early in the day. Patrons were drinking what appeared to be alcoholic beverages at the bar and in the pool hall, but the disco room was locked. Again no evidence that the beverages were alcoholic was presented by DABT. Another Final warning notice was issued citing the inadequate seats, tables, china, and silverware. This Final warning notice reminded Mr. Thayer that he was required to have the facilities, china, and silverware to serve full course meals to 200 patrons or else he must discontinue the sale of alcoholic beverages. Mr. Thayer was given ten working days to comply or else charges would be filed against his license. On June 22, 1990, Mr. Ogonowski returned in the morning for one last inspection of George's Place. Mr. Thayer was not there, but Leroy Reed was tending bar. The Bill of Fare was not posted. The pool hall was open, but the disco room was locked. Mr. Reed was eating something from a bowl. According to Mr. Reed, it was some leftovers that he had scraped from the bottom of a pot. Mr. Ogonowski ordered some of what Mr. Reed was eating, but was told it was all gone and food had not been cooked yet that day. Mr. Ogonowski ordered a sandwich not regularly available on the premises and was told that it was not available. He than asked to purchase a beer to go and was sold a can of beer. Mr. Ogonowski returned to talk to Mr. Thayer later that same day. At that time, Mr. Thayer told Mr. Ogonowski that the necessary china and silverware was on the premises, but that there were inadequate seats at tables. Based on this failure to comply with the previous warnings, a Notice to Show Cause was issued. Mr. Ogonowski did not inspect to see if the china and silverware was actually on the premises or if full course meals were available. According to Mrs. Thayer, the china and silverware was purchased in July, after the last inspection. Further, she acknowledged that the necessary seats at tables were not on the premises until September. Mr. and Mrs. Thayer live above George's Place and derive all of their support from the operation of George's Place. They have done so for more that 25 years. Until these events, they had not received any citations for more than 15 years. Mr. Ogonowski testified that DABT has a policy regarding penalties for violations of special restaurant licenses and he produced a copy of a page from his policy and procedure manual. These penalty guidelines have not been enacted as rules. Mr. Ogonowski did not develop the policy and did not offer any testimony to prove up or explicate the incipient policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that alcoholic beverage license 74-00643SR-4COP, issued to George Thayer, t/a George's Place, be suspended until the licensee demonstrates the ability and intention to operate the premises as a bona fide restaurant meeting all the criteria of the license, the statutes, and the rules. If the licensee is unable to make the necessary demonstration within six months, the license should be revoked. DONE and ENTERED this 3rd day of December, 1990, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5777 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of FactSubmitted by Petitioner, DABT Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 2-6(4-8). Proposed findings of fact 7 and 8 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of FactSubmitted by Respondent, George Thayer Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 10(8); and 14(11). Proposed findings of fact 2, 4-6, 8, 9, 11, and 13 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 3 and 7 are irrelevant. Proposed finding of fact 12 is unsupported by the credible, competent and substantial evidence. COPIES FURNISHED: Eric S. Haug Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Thomas S. Hart Attorney at Law Cobb Cole & Bell 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, FL 32115-2491 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1007 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007
Findings Of Fact Respondent Lois Davis, who does business under the name of The Cotton Club, holds License No. 60-00245, a Series 2-COP license issued by petitioner authorizing her to sell beer and wine for consumption on the licensed premises, which are located at 233 Southwest Fifth Street, Belle Glade, Florida. At one time Ms. Davis held License No. 60-576 which authorized sale of hard liquor as well as wine and beer for consumption on the premises of The Cotton Club. On January 25, 1980, as a result of foreclosure proceedings against respondent's landlords, an order was entered directing that "all right, title and interest to Alcoholic Beverage License 60-576" be conveyed to Mr. and Mrs. Robert Daniel. Robert Daniel, et ux. v. Gilbert Adams, et al. v. Lois Davis, No. 78-4667 CA (L) 01 G (Fla. 17th Cir.). At the time respondent applied for her current license, shortly before the previous license expired, she asked that the latter be extended so that she could sell off her stock of hard or spirituous liquors. Petitioner's Lieutenant Little explained that the matter was before a court but agreed to approach the judge. In September of 1980, L. Dell Grieve, a six-year veteran of the Belle Glade Police Department, visited The Cotton Club, saw liquor in a storeroom, and told the bartender that it should be removed. The bartender protested that it was all right to store the liquor while something was being worked out about the license, or words to that effect. Beverage Officers Ramey and Rabie accompanied Officer Grieve on November 15, 1980, on a visit to The Cotton Club, where they found Andre Lavince Moore, respondent's son, tending bar. In the storeroom, they found numerous bottles of spirituous liquors which they confiscated. Petitioner's Exhibit No. Wine and beer were stored in a separate place in the same storeroom. At no time after she lost License No. 60-576 did respondent or her agents or employees sell any alcoholic beverages other than wine or beer at The Cotton Club, or have any intention of doing so without petitioner's permission.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint. DONE AND ENTERED this 14th day of May, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II 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 14th day of May, 1981. COPIES FURNISHED: Daniel C. Brown, Esquire Lt. J. E. Little 725 South Bronough Street Post Office Drawer 2750 Tallahassee, Florida 32301 West Palm Beach, FL 33402 Lois Davis The Cotton Club 233 Southwest Fifth Street Belle Glade, Florida
The Issue The issues presented are those set forth in a notice to show cause filed by Petitioner against Respondents in Case No. AY-74-87-0201. In particular, it is alleged that on March 16, 1988, October 21, 1988 and February 24, 1989, that the Respondents or their agents, servants or employees sold alcoholic beverages to minors in violation of Sections 561.29, Florida Statutes and 562.11(1)(a), Florida Statutes.
Findings Of Fact At all times which pertain to this Notice to Show Cause/Administrative Complaint, Respondents were doing business at 238-240 Atlantic Avenue, Daytona Beach, Volusia County, Florida under the business name Speidi Shack and pursuant to a beverage license issued by Petitioner. That license number was and continues to be number 74-01802, Series 2-COP. On March 16, 1988, and again on October 21, 1988, Michael Vanorder, whose birthday is March 27, 1969, purchased a Light beer from employees of the Respondents in the licensed premises. On February 24, 1989, Tina May purchased a Light beer from an employee of the Respondents in the licensed premises. Her date of birth is August 4, 1968. The Light beers that were purchased by those two individuals are alcoholic beverages. In the incident of March 16, 1988, Vanorder entered the licensed premises as an underage operative of the Petitioner. The purpose of underage operatives is to assist the Petitioner in investigations to ascertain whether suspected alcoholic beverage license holders will sell alcoholic beverages to minors. Vanorder was provided money from the Petitioner to purchase the alcoholic beverage if the licensees, their agents or employees would sell. Betty Warner and Tanya Pandarakis, who are Alcoholic Beverage Agents for Petitioner were in the bar and watched as Vanorder was asked by the bartender what Vanorder wanted. Vanorder indicated that he wanted a Light beer. Mark Barker, the bartender, brought a Light beer to Vanorder and accepted payment for that beer. In this purchase, Vanorder was not asked to produce any identification nor was he asked how old he was. Vanorder was under instructions from Petitioner's agents to validly respond to any questions about his age and to provide accurate identification in support of his remarks. The beer that he was given had been opened by the bartender. These events occurred around 8:35 p.m. The beer that was purchased was then given from Vanorder to Warner. Barker was then arrested by Warner and another Alcoholic Beverage Agent, Fred Dunbar, for selling alcoholic beverages to a minor. The arrest occurred when Dunbar entered the licensed premises following the sale and identified himself as an Alcoholic Beverage Agent. Prior to leaving the premises on that occasion, Respondent John M. Macker was told of the arrest and why an investigation had been made in the first place about suspected sales to minors in the licensed premises. Macker came the next day to meet with Dunbar at the invitation of Dunbar. Macker was told that a complaint file would remain open and that underage operatives would continue to be sent into the licensed premises to see if Macker had corrected the problem of selling to underage patrons. Respondent Macker promised that he would have closer supervision and would give training to his employees about proper identification techniques for sales of alcoholic beverages in the licensed premises. An official notice was given to the Respondents, a copy of which may be found as Petitioner's Exhibit No. 3 which was admitted into evidence. That notice is dated March 17, 1988 and is issued from Dunbar and is acknowledged as having been received by Respondent Macker. It identifies the facts of the sale to a minor and the arrest of Mark Barker and warns Respondents that if the violation occurs again, that Respondents could be charged with the violation of March 16, 1988 and any future violations. Throughout this warning phase associated with the sale of March 16, 1988 Respondent Macker was cooperative in his attitude. As forecast, Petitioner sent Vanorder back into the licensed premises on October 21, 1988 to see if Respondents, their agents, servants or employees would sell him alcoholic beverages. Beverage Agent John Szabo, Agent Dunbar, Lt. Powell and Vanorder went to the licensed premises on that evening. Their activities at the licensed premises commenced around 8:55 p.m. At this time, there were around 10-20 patrons in the bar. Szabo went in first and sat down at the bar and ordered a beer. Vanorder came in some 2-3 minutes later and sat down at the bar. A white female bartender who was identified later as Beth Ann Marsden approached Vanorder and asked him what she could get for him. He asked for a Bud Light. The bartender went to the cooler and came back with an open can of Bud Light and said that the cost of that beer would be $1.25. Vanorder paid her and she gave him back change. Vanorder then went outside the licensed premises and gave the beer to Dunbar. During the course of this purchase, Vanorder was not asked his age or asked for any form of identification which would demonstrate his age. As before, Vanorder was prepared to show a valid identification and give his correct age. After Dunbar was given the beer, he came into the licensed premises and he and Szabo confronted the bartender with the fact that she had sold beer to an underaged patron. They asked if the owner was on the premises and she said that he was not. The bartender was then charged with selling to a minor. She was given a Notice of Appearance for October 25, 1988 which constituted of a letter of final warning to the licensee. A third phase of the investigation occurred on February 24, 1989 when Tina May, an underaged operative for the Petitioner assisted in the investigation of sales to minors. Around 10:50 p.m., Officer Szabo, Beverage Officer Sullivan and Tina May went to the licensed premises. Szabo went in the bar first. One customer was in the bar. Szabo asked for a beer and was asked for his identification and showed his license and was served a beer. Before Tina May entered the license premises, she had been instructed to dress in normal attire and to carry her drivers license and to tell the truth about her age and to give the correct identification. Once inside the licensed premises, May sat where she could be seen by Officer Szabo. The other patron left the bar. Around 11:00 p.m., May was approached by Beth Ann Marsden who asked May what she wanted. May replied that she wanted a Bud Light. The bartender asked for identification and a driver's license was produced which showed May to be underage. Marsden was seen to count on her fingers when shown the identification. She opened up a Bud Light beer for May and gave it to her and said that the price of the beer was $1.25. May gave her $5.00 and received change. She then gave the beer to Szabo. Szabo then told the bartender that he was a Beverage Officer. Marsden recognized Szabo from the prior incident with Vanorder on October 21, 1988. Marsden told Szabo that May was 21 years old. Szabo got the driver's license from May and showed it to the bartender who admitted that she had made a mistake and that she didn't look at the month of the birth. She had only looked at the year, 1968. Out of this incident, an Official Notice was prepared, a copy of which may be found as Petitioner's Exhibit No. 4 admitted into evidence. It sets out the violations of March 16, 1988, October 21, 1988 and February 24, 1989 and the intention of the Petitioner to file administrative charges against the Respondents for sales to minors. Since the Respondents were not there, the list was left with a Rosemarie Savini. That notice was served on November 2, 1989. Before the time of the final hearing in this case, the sole ownership of the licensed premises had been left with John M. Macker. Linda F. Williams no longer is involved with the license in question. Respondent Macker's principle business is that of a commercial fisherman. During the pendency of this investigation, he was gone a lot from his licensed premises because of his other work and relied on his employees to act appropriately concerning sales to minors. In the period 1985 until January, 1989, he had not experienced problems with this. He had posted notices around the bar about sales to minors and had instructed his employees about being careful not to sell to minors. He has calendars from beer distributors which assist in ascertaining the age of minors. March 16, 1988 was Barker's first day on the job, as was October 21, 1988 the first day on the job for Beth Ann Marsden. His instructions to his employees was to check identification if people did not look at least in their fifties or older than Respondent. Since these events, Respondent has taken more detailed steps and placed other signs to avoid sales to minors. He doesn't wish these problems to occur again and regrets that they happened on this occasion. On the other hand, he did not ask for help from the Petitioner after the October 21, 1988 incident as was offered. Following the third sale, he has moved into the licensed premises to maintain better control of the circumstance. No other incidents were reported to have occurred beyond that adjustment concerning sales to minors.
Recommendation Having considered the facts, and the conclusions of law reached, it is, RECOMMENDED that a Final Order be entered which fines the Respondents in the amount of $500 for these violations. DONE and ORDERED this 19th day of October, 1989, in Tallahassee, Florida. CHARLES C. ADAMS 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 19th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2457 Those facts as suggested by the Petitioner are subordinate to facts found in this Recommended Order. COPIES FURNISHED: Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John B. Fretwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John M. Macker 238-240 North Atlantic Avenue Daytona Beach, Florida 32018
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
Findings Of Fact At all times pertinent to the issues herein, alcoholic beverage license No. 26-01841, Series No. 2-APS, was issued to Respondents, Frank D. and Estella S. Ryers, for their establishment known as the Big B Restaurant, located at 5570 Avenue B, Jacksonville, Florida. A 2-APS license permits the package sale only of beer and wine. It does not permit the consumption on the premises of beer, wine, or liquor. On March 27, 1983, Investigator Wendell M. Reeves conducted an undercover operation directed against the Big B Restaurant predicated upon reports received by Petitioner that Respondents were conducting sales of alcoholic beverages not permitted by the license at the licensed premises. In furtherance of that operation, Reeves utilized another beverage agent, Van Young, in an undercover capacity to make a controlled buy of an improperly sold substance from the licensees. Prior to sending Young into the licensed premises, Reeves searched Young to ensure that he, Young, had no alcoholic beverage or money in his possession. Satisfying himself that that was the case, he gave Young $15 in U.S. currency and sent him into the licensed premises to make the buy. Young entered the Big B Restaurant at 1:00 p.m. and came out 17 minutes later. When he came out of the licensed premises, Young came over to where Reeves was waiting and turned over to him a sealed 200 ml bottle of Fleishman's Gin. Young told Reeves that he had purchased the gin in the licensed premises from a black male whose description matched that of Respondent Frank D. Byers which is contained on Respondent's application for license. Respondent Frank Byers denies making the sale. On balance, however, there is little doubt it was Respondent who made the sale, especially in light of the fact that this same licensee was issued a letter of warning by the Division of Alcoholic Beverages and Tobacco in October 1981 for possession on the premises of an alcoholic beverage not permitted to be sold under the license. Young also stated that he purchased a second bottle which he consumed on the premises with another black male. However, this evidence was in the form of Reeves' report of what was told him by Young. As such, it is clearly hearsay and can be used only to corroborate or explain other admissible evidence. Therefore, as to the allegation regarding the consumption of the gin on the premises, since it is the only evidence of that offense, it cannot be used to support a finding of fact on that allegation. It may, however, be used to explain how Young got the bottle with which he was seen by Reeves to come out of the licensed premises. Several days later, on March 30, 1983, Reeves again entered the licensed premises, where he told Respondent Estella Byers he was there to inspect the site. She opened the cooler for him and he inspected the beer inside and the cigarettes. While he was doing that, however, he noticed her take a cloth towel and drape it over something behind the bar. He went over to it, removed the towel, and found that it covered a bottle of Schenley's gin. Mrs. Byers immediately said she thought it was her husband's, Respondent Frank Byers, but another individual present at the time, Sharon Thomas, said she had taken it from her brother, who was drunk, and had put it there. Again, as to Ms. Thomas' comments, they, too, are hearsay and can only serve here to explain or corroborate other admissible evidence. In any case, after Ms. Thomas made her comment, she was immediately contradicted by Respondent Estella Byers, who again indicated she thought the bottle was her husband's. In any case, at the hearing, Respondent Estella Byers contended she did not know it was there. On balance, Mr. Reeves' testimony that she covered it with a towel while he was inspecting and the evidence of the prior warning for an identical offense tend to indicate she did know it was there and that it was unlawful for it to be there. There is, however, no evidence to establish sufficiently the reason for its being there.
The Issue Should Petitioner discipline Respondent's Alcoholic Beverage License based upon Respondent's president selling, serving or giving an alcoholic beverage, on the licensed premises, to a person under the age of twenty-one contrary, to Section 562.11(1)(a), Florida Statutes?
Findings Of Fact Respondent, Rose Anne, Inc., d/b/a Scooters, holds license number 74-05039 SRX, Series 4COP issued by Petitioner for the premises located at 217 North Woodland Boulevard, Deland, Florida. Scott A. Price is the president and owner of that business. On October 22, 1997, Petitioner, through its agents, made random checks of businesses holding alcoholic beverage licenses issued by Petitioner. Those checks were made in Deland, Florida. In particular, the checks were designed to determine if businesses holding alcoholic beverage licenses were acting in compliance with the prohibition against selling, serving or giving alcoholic beverages on their licensed premises, to persons under the age of twenty-one, in violation of Section 562.11(1)(a), Florida Statutes. Respondent's premises was one of the licensed premises checked on that date. Petitioner's employees involved in the random checks included Special Agents Betty D. Adazzio, Melissa Winford and Kristin Hunt, operating with the assistance of Sergeant Steve Dovi of the Deland Police Department. The law enforcement personnel were supported in their activities by Ryan N. Luttrell, an under-aged person, who was used to determine if persons within the licensed premises under consideration would sell, serve or give Mr. Luttrell an alcoholic beverage in the licensed premises. Mr. Lutrell was born on November 23, 1978, as reflected on a Florida driver's license issued to him. That driver's license bore a picture of Mr. Luttrell which accurately depicted his appearance at the time. The license also indicated in bold print that Mr. Luttrell was under twenty-one years of age. In contact with Mr. Price, within Respondent's licensed premises, Mr. Luttrell used the license as a means of identification. Mr. Luttrell entered the licensed premises on the date in question. At that moment Mr. Price was tending the bar in the premises. Mr. Price brought Mr. Luttrell a menu and asked Mr. Luttrell if he wanted anything to drink. Mr.Luttrell told Mr. Price to give Mr. Luttrell a minute to decide. Mr. Luttrell then asked Mr. Price for a Bud Lite, an alcoholic beverage which is a beer. Mr. Luttrell also ordered cheese sticks. Mr. Price asked Mr. Luttrell for identification. Mr. Luttrell then produced the driver's license that has been described. Mr. Price briefly looked at the driver's license. Then Mr. Price took the driver's license to another area within the premises and held the license up by a chart. Mr. Price came back to where Mr. Luttrell was seated and asked what Mr. Luttrell would like. Mr. Luttrell repeated that he wanted a Bud Lite. Mr. Price filled a glass with beer and brought it back to Mr. Luttrell's location placing the glass of beer and a napkin in front of Mr. Luttrell. Mr. Price remarked that the cheese sticks would be right out. Mr. Luttrell asked Mr. Price where the bathroom was. Mr. Luttrell took the beer in the glass with him and took a sample of the beer and placed it in a vial. Mr. Luttrell went back to the bar area, and in further conversation with Mr. Price, Mr. Luttrell claimed that his pager had gone off, and used that excuse as a reason to exit the licensed premises. Once outside, Mr. Luttrell realized that he had not paid for the beer and Agent Adazzio sent Mr. Luttrell back into the premises to pay it. Mr. Luttrell re-entered the premises. Mr. Price was still behind the bar. Mr. Luttrell paid Mr. Price for the beer that Mr. Price had given Mr. Luttrell. Mr. Luttrell then again exited the licensed premises. At the time of the incident Respondent was not qualified as a Responsible Vendor pursuant to Section 561.705, Florida Statutes, and entitled to protections against suspension or revocation of its beverage license for the illegal sale of an alcoholic beverage to a person not of lawful drinking age, as envisioned by Section 561.706, Florida Statutes. Respondent's disciplinary history involves a violation of Section 561.501, Florida Statutes, for failure to timely file surcharge reports and to remit surcharges collected for periods in 1990. That case was resolved by entry into a Consent Agreement on December 17, 1990, in which Respondent acknowledged the violations and agreed to remit the sum of $250.00, as a civil penalty. This circumstance was in association with Respondent doing business as Scooters Coast To Coast at U.S. Highway #1, MM92.5, Tavernier, Monroe County, Florida, under license number 54-00658, Series 2COP.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: It is recommended that a final order be entered finding Respondent in violation of the aforementioned provisions and imposing a seven day suspension, together with a civil penalty of $1,000.00. DONE AND ENTERED this 12th day of August, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 12th day of August, 1998. COPIES FURNISHED: Susan C. Felker-Little, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Scott A. Price, President Rose Anne, Inc., d/b/a Scooters 102½ West Rich Avenue Deland, Florida 32720 Richard Boyd, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times material hereto, respondent, Cesar J. Reyes, held alcoholic beverage license number 23-05034, series 2-COP, for the premises known as Busy Cafeteria Bar (the "premises"), located at 4601 West Flagler Street, Miami, Dade County, Florida. In November 1993, Special Agent Joe Lopez of the Division of Alcoholic Beverages and Tobacco, together with the assistance of a confidential informant (CI), began an undercover investigation of the premises. Such investigation was predicated on information Special Agent Lopez had received from federal authorities which indicated that narcotics were being sold upon the premises. On December 1, 1993, Special Agent Lopez and the CI entered the licensed premises. While inside the premises, the CI met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On the same occasion, Special Agent Lopez met with respondent, and he also purchased a small plastic package containing 1/2 gram of cocaine for $30.00. 1/ On December 2, 1993, Special Agent Lopez and the CI returned to the licensed premises. While inside the licensed premises, they again met with respondent and purchased a small plastic package containing 1/2 gram of cocaine for $30.00. On December 7, 1993, Special Agent Brian Weiner of the Division of Alcoholic Beverages and Tobacco served respondent with an emergency order suspending his alcoholic beverage license, and placed respondent under arrest for the sale of cocaine. Incident to such arrest, Special Agent Weiner searched respondent's person and discovered six small plastic packages, each containing 1/2 gram of cocaine, in a small box tucked under respondent's waist band.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing Counts 1 and 2 of the notice to show cause, finding respondent guilty of Counts 3, 4, 5 and 6 of the notice to show cause, and revoking respondent's alcoholic beverage license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1993. WILLIAM J. KENDRICK 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 28th day of December 1993.
The Issue Whether or not on or about the 16th day of January, 1976, the licensees, I. and Christine Lockett, did unlawfully fail to maintain the operation and responsibility of their licensed business by relinquishing the control of said licensed premises to Louise Bryant, in violation of Rule 7A-3.17, Florida Administrative Code.
Findings Of Fact The Respondents, I. J. and Christine Lockett, were holders of Series 2- COP beverage license issued by the State of Florida, Division of Beverage during the period of October 1, 1975 up to and including the date of the hearing, as evidenced by the Petitioner's Exhibit No. 3 admitted into evidence. This Exhibit No. 3 is a copy of the beverage license. On or before January 16, 1976, I. J. Lockett left the city of Jacksonville, Florida, and his licensed premises at 846-848 East First Street, Jacksonville, Florida, and went to Miami, Florida to bring back his wife, Christine Lockett. Christine Lockett had gone to Miami, Florida, after the death of their son. Christine Lockett had been running the bar in conjunction with I. J. Lockett prior to her departure for Miami, Florida. When I. J. Lockett left the city of Jacksonville he turned the control and management, responsibility over to one Louise Bryant. This control and management transfer was evidenced by the fact that he gave Louise Bryant $400.00 to purchase items of stock and a salary of $65.00 per week, plus additional monies if Ms. Bryant was successful in the operation of the bar. Upon his return from Miami, Florida, I. J. Lockett gave Ms. Bryant an additional $120.00 for purchase of stock items for the bar. While I. J. Lockett was in Miami and dating from January 16, 1976, Louise Bryant was authorized to purchase wine and beer and did make purchases of that wine and beer as evidenced by the checks written on her bank account to various distributors. Copies of those checks are found in Petitioner's Composite Exhibit No. 4 admitted into evidence. In addition, Louise Bryant had the electric service placed in her name for Chris and J's Beer Garden located at 846-848 East First Street, Jacksonville, Florida. Louise Bryant got the profits from the business as her compensation for maintaining the business in the absence of I. J. and Christine Lockett, she also paid the rent on the premises to the landlord. Sine I. J. Lockett's return from Miami, Louise Bryant has continued to work in the business.
Recommendation It is recommended that the license of the Respondents, I. J. and Christine Lockett, d/b/a Chris and J's Beer Garden be revoked, but the imposition of that revocation be withheld upon a satisfactory showing that Louise Bryant is not currently the defacto manager aid operator and responsible party in the licensed premise. DONE and ENTERED this 18th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles C. Tunnicliff, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 I. J. and Christine Lockett 846-848 East First Street Jacksonville, Florida
Findings Of Fact At all times pertinent, Respondent, Wilbert Barrington, d/b/a Barrington Inn (Respondent), has held license number 43- 19, Series 2-COP, for the sale of beer and wine at the Barrington Inn on State Road 59, north of Lloyd, Jefferson County, Florida. Respondent's license does not authorize him to sell gin. December 2, 1984, Respondent sold two 200 ml. bottles of Seagram's Gin at his licensed premises, one to a patron and one to an undercover agent employed by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent has had three prior similar violations. Respondent denied the allegations and testified at final hearing that the Division's undercover agent was not at his licensed premises on December 2, 1984, that he did not sell any gin on December 2, 1984, and that he does not sell gin or vodka at his licensed premises.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended, in view of Respondent's prior violations and testimony at final hearing, that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking alcoholic beverage license number 43-19, Series 2-COP, held by Respondent, Wilbert Barrington, d/b/a Barrington Inn. RECOMMENDED this 16th day of October, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings, The Oakland Building 309 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1985. COPIES FURNISHED: Thomas A. Klein Staff Attorney Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301 Ike Anderson, Esq. P. O. Box 56 Monticello, FL 32344 Richard B. Burroughs, Jr. Secretary The Johns Building 725 S. Bronough Street Tallahassee, FL 32301 Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronorugh Street Tallahassee, FL 32301
