The Issue The issue for determination is whether Respondents' alcoholic beverage licenses should be disciplined for violation of Chapter 561, Florida Statutes. Resolution of this issue requires a determination of whether Respondents correctly reported and remitted alcoholic beverage surcharges required for the audit period of July 1, 1990 through March 31, 1991. Petitioner claims that Respondent Southeast Central, Inc., was deficient in reporting, surcharge payments, and penalties for the period July 1, 1990, through March 31, 1991, in the total amount of $4,121.80, contrary to Section 561.501, Florida Statutes. Similarly, Petitioner alleges that Respondent Central Restaurants, Inc., was deficient in reporting, surcharge payments, and penalties for the same period in the total amount of $96.72.
Findings Of Fact Respondents are two corporations. Southeast Central Inc., operating as the Pirate's Den Seafood Cafe, holds license number 26-03346 SRX, series 4-COP, for premises located at 5023 Central Restaurants, Inc., operating as the Seafood Place, holds license number 26 Jacksonville, Florida. Robert Domin is president, sole corporate officer and sole stockholder of both corporations. Petitioner's auditor performed audits with regard to records of both Respondents, following their random selection by Petitioner, to verify Respondents' compliance with surcharge requirements imposed by Section 561.501, Florida Statutes, on the retail sales of "on premise consumption" of alcoholic beverages on licensed premises. The audits covered the period of July 1, 1990 through March 31, 1991, for both Respondents, and were performed during the period of early July through August 2, 1991. 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. Each Respondent submitted Petitioner's form DBR 44-005E, reflecting their election of the sales method. Form DBR 44-005E also requires disclosure of the licensee's inventory of alcoholic beverages on hand prior to opening of business on July 1, 1990. 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. Respondents' beginning inventory figures were provided by their employee, Heather Scrape. This finding is further supported by the identification of Scrape's handwriting on Respondents' exhibit number 2 at the final Hearing by Respondent's president as being that of Scrape. The figures written on the exhibit by Scrape correspond to figures earlier provided by Respondents to Petitioner on Form DBR 44-005E and corroborate testimony of Petitioner's auditor that Scrape provided Petitioner's audit personnel with beginning inventory information for Respondents. Scrape, no longer employed by Respondents, still lives and works in the area although she did not testify at the final hearing. Distributor invoices at each Respondent location were used to determine alcoholic beverage purchases by each Respondent for the audit period. The ending inventory for the audit period for each Respondent was provided to Petitioner's auditor by Respondents. The auditor considered a spillage allowance of 10 percent for draft beer and five percent for liquor, bottled or canned beer, wine coolers and wine. The spillage allowance is enunciated in Emergency Rule 7AER 90-5, effective July 1, 1990, and also codified in Rule 7A- 4.063, Florida Administrative Code. Respondents provided no documentation for cooking adjustment amounts. The audit for Respondent Southeast Central, Inc., revealed a deficiency in surcharge reporting and payment of $3,294.15 with a late penalty due in the amount of $827.65. The audit for Respondent Central Restaurants, Inc., revealed a deficiency of $84.24 with a late penalty of $16.85 which, after adjustment for spillage allowance, totalled $96.72. At request of Respondents, Petitioner's auditor returned to the premises of each licensee and re-conducted the audit. No substantial corrections were made as a result of this effort with the minor exception of discovery of additional invoices on the premises of Respondent Southeast Central Inc., which increased, by a minor sum, the surcharge amount and penalty to the current amounts. The deficiency for Respondent Southeast Central, Inc., represents 55 percent of the total surcharge due for the audit period. The deficiency for Respondent Central Restaurants represents 14 percent of the total surcharge due for the audit period. Petitioner's Form DBR 44-005S states that the surcharge is to be calculated on gallons and/or ounces by reporting licensees. A conversion calculation sheet is provided on the back of the form to assist retailers in converting alcoholic beverage measurements into gallons. Respondents' cash registers record the price and number of alcoholic beverages sold in terms of units, i.e., three glasses of beer, two bottles of beer, one glass of wine, etc. Respondents predetermined how many ounces of an alcoholic beverage should be in a particular drink. Respondents then used this ideal measurement or standard in calculating the surcharge due. The calculation involved multiplying the ideal standard or measurement by the units recorded through the cash registers as sold. There is no actual record made of the amount of alcoholic beverage in a unit sale. Sometime after August 2, 1991, Respondents provided Petitioner's auditor with a copy of a beginning July 1, 1990 inventory report for Respondent Southeast Central, Inc., derived from application of the ideal measurement or standard as a multiplier of units of recorded sales. This action by Respondents followed completion of Petitioner's initial audits and notice to Respondents of delinquency in surcharge payment amounts. Respondents presented no explanation as to why this inventory was not provided to Petitioner's auditor in the course of her initial audit. The inventory document was also not authenticated in accordance with Section 90.901, Florida Statutes, and is not credited at this time for establishing a beginning inventory for Respondent Southeast Central, Inc., at variance with the beginning inventory reported for this Respondent on Petitioner's form DBR 44-005E. Petitioner permits vendors a period of 30 days within which to remit delinquent surcharge payments following notice of delinquency. Neither Respondent complied with Petitioner's demands to remit delinquent surcharge payments discovered as the result of Petitioner's audit.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring payment by Respondent in Case No. 93-0322 in the amount of $4,121,80, the amount of total tax and liabilities claimed by Petitioner to be due; and requiring payment by Respondent in Case No. 93-0329 of the amount of $96.72, the amount of the total tax and liabilities claimed by Petitioner to be due in that case. DONE AND ENTERED this 4th day of August, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 4th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0322 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-5. Accepted, not verbatim. 6.-7. Rejected, subordinate to HO findings. 8.-13. Accepted, not verbatim. Respondent's Proposed Findings. 1.-7. Accepted, not verbatim. 8.-12. Rejected, subordinate to HO findings. Rejected, not relevant although this is a duty of the auditor. Accepted. Rejected, argumentative. Rejected, no evidence presented as to theft or overpouring. Further, Respondents were given benefit of spillage allowance. 17.-18. Rejected, weight of the evidence. COPIES FURNISHED: Miguel Oxamendi, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert Domin, President Southeast Central, Inc. Central Restaurants, Inc. 4359 Roosevelt Boulevard Jacksonville, Florida 32210 Jack McCray General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 George Stuart, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 John Harris, Director Division of Alcoholic Beverages Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue in Case no. 92-4204 is whether the Respondent correctly reported and remitted the alcoholic beverage surcharge for the audit period of July 1, 1990 through March 31, 1991. The amount claimed by the Department for this case is $5,767.82. The issue in Case no. 92-4205 is whether the Respondent correctly reported and remitted the surcharge for the audit period of July 1, 1990 through March 31, 1991. The amount of the audit deficiency alleged by the Department for this case is $4,952.48.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of enforcing and administering Chapter 561, Florida Statutes. Respondent is the owner and holder of two alcoholic beverage licenses. License no. 58-01411 which is a 4COP SRX license is for Hemingway's Oyster Bar and Caribbean Barbeque, Inc. doing business as Townsend's Fish House, Oyster Bar & Tavern (Fish House). The business location for that license is 35 West Michigan Street, Orlando, Florida. The second license, license no. 58-02757, is also a 4COP SRX license for Hemingway's Oyster Bar and Caribbean Barbeque, Inc. doing business as Townsend's Plantation and Doc Tommy's Tavern (Plantation). That business location is 604 E. Main Street, Apopka, Florida. Following the enactment of Section 561.501, Florida Statutes, the Department issued a form designated DBR 44-005E that directed alcoholic beverage licensees to elect a method of reporting and computing the beverage surcharge. The form directed licensees to specify whether the beverage surcharge would be paid based upon purchases or based upon sales. For vendors utilizing the sales method, form DBR 44-005E required a certification of the inventory of alcoholic beverages on hand before opening for business July 1, 1990. Respondent elected to utilize the sales method. The Fish House inventory certified that it had 351.05 gallons of beer (241 bottled, 110.05 draft), 79.48 gallons of wine, and 172.82 gallons of liquor on hand as of the date noted. The Plantation certified it had 183.84 gallons of beer, 139.14 gallons of wine, and 99.46 gallons of liquor. In May, 1991, auditors employed by the Department met with Respondent's employees at each of the licensed premises. An audit for the period July, 1990 through March, 1991, utilizing the depletion method was chosen since the licensee had elected the sales method for reporting and remitting the beverage surcharge. In performing the audit at the Plantation location, the Department accepted that 74.66 gallons of liquor, 39.85 gallons of wine, and 567 gallons of draft beer were used in food preparations and were, therefore, not included in the gallons reported for surcharge purposes (cooking allowance). The invoices for suppliers at the Plantation were reviewed for the following categories of purchases: draft beer, beer (presumably bottled or canned), wine coolers, wine, and liquor. By adding the total of all purchases for the audit period to the beginning inventory, the Department calculated a total volume for the Plantation. In theory, by subtracting the ending inventory from the total volume resulted in the amounts of beverages consumed. From that amount the Department subtracted the cooking allowance noted above, and a spillage amount provided for by rule. As it is presumed some spillage occurs in the mixing and serving of beverages, the rule provides for an offset for spillage by beverage category. Following the procedure outlined above, the auditor calculated that for the audit period, the Plantation had sold 720 gallons of draft beer, 1731.61 gallons of beer, 8.55 gallons of wine coolers, 1090.70 gallons of wine, and 546.27 gallons of liquor. When compared to the reports filed by the Plantation, the auditor determined that in each category noted, the licensee had under reported the volumes sold. The difference for each category was: 494.01 gallons of draft beer, 788.25 gallons of beer, 8.55 gallons of wine coolers, 642.01 gallons of wine, and 244.93 gallons of liquor. The total additional surcharge which should have been remitted based upon the difference not reported was $5,767.82. The auditors used the same approach when reviewing the records for the Fish House. The cooking allowance accepted by the Department for the Fish House was 1400 gallons beer, 67.38 gallons wine, and 9.50 gallons liquor. The spillage allowance was calculated as provided by rule. Additionally, a collection allowance was given for the Fish House in the amount of $195.85. After computing the totals as described above, the auditor found a difference in each of the categories reviewed. After applying the surcharge to the unreported sales amount, the Fish House was cited for a shortage of $4,952.48. The Fish House management claimed, as part of the volume unaccounted for, drinks which were deemed complimentary or free. However, such beverages should have been included in the volume reported as a sale. Respondent also claimed that the spillage allowance provided for by rule was arbitrarily low. Also unconsidered were the losses to inventory due to theft. When such losses are deemed minimal, the theft may go unreported to police or insurance. Cumulatively such losses may be significant. Also unconsidered in reconciling the inventory was the industry practice of "over pours." While discouraged by Respondent, it is not uncommon for bartenders to pour more than the standard measurement of liquor for a good customer. If so, the Respondent's practice of looking to the number of sales to determine ounces sold would have resulted in an under estimating of the ounces dispensed. The auditors did not review the sales tapes or other sales records to confirm the surcharge amounts. The Respondent was unaware of the audit method which would be used to review the surcharge accounting. No insurance or police reports were made for the loss or stolen inventory claimed by Respondent.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order in case no. 92-4204 requiring the Respondent to remit an additional surcharge in the amount of $5,767.82. For case no. 92-4205, the Department should require the Respondent to remit an addition surcharge amount of $4,952.48. DONE and ENTERED this 7th day of January, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1993. APPENDIX TO CASE NOS. 92-4204 AND 92-4205 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Paragraphs 1, 2, 3, 5, 6, 7, 9, 13, 17, 18, 21, and 22 are accepted. Paragraph 4--the first sentence is accepted; otherwise rejected as irrelevant or comment. Paragraph 8 is rejected as irrelevant. Paragraphs 10, 11, and 12 are rejected as irrelevant or argument. Paragraph 14 is rejected as irrelevant. Paragraph 15 is rejected as repetitive, unnecessary or irrelevant. Paragraph 16 is rejected as argument. Paragraphs 19 and 20 are rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 and 2 are accepted. Paragraph 3 is rejected as irrelevant. Paragraph 4 is rejected as contrary to the weight of credible evidence. Paragraph 5 is rejected as contrary to the weight of the evidence or irrelevant. Paragraph 6 is rejected as irrelevant. Paragraph 7 is rejected as irrelevant or contrary to governing law or rule. NOTE: Respondent mistakenly has alleged facts or circumstances more appropriately raised by a rule challenge procedure. Section 120.57(1) hearings do not resolve issues related to the lawfulness of rules. Further, challenges to unpromulgated agency policy should be challenged as an unpromulgated rule. Such challenges are not appropriate to this type of proceeding. COPIES FURNISHED: Miguel Oxamendi Asst. General Counsel Dept. of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Richard S. Wright Firstate Tower, Ste. 1550 255 S. Orange Avenue Orlando, FL 32801 Clay M. Townsend 35 W. Michigan St. Orlando, FL 32806 Richard W. Scully, Executive Director Dept. of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Donald D. Conn, General Counsel Dept. of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007
The Issue Whether the Respondent, Aristen Group, L.L.C., d/b/a Pangaea Gryphon (Respondent or Licensee), failed to remit monies owed to the Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Department or Petitioner) pursuant to the surcharge provisions found in Section 561.501(2), Florida Statutes (2007). If so, the Department seeks to discipline the licensee pursuant to Section 561.29, Florida Statutes (2007).
Findings Of Fact At all times material to the allegations of this case, the Petitioner is the state agency charged with the responsibility of regulating persons holding alcoholic beverage licenses. See § 561.02, Fla. Stat. (2007). At all times material to the allegations of this matter the Respondent has been a licensee holding license number 1616908, series 4-COP. When the Licensee filed its surcharge audit questionnaire it elected to file its surcharge tax based upon the "purchase method." The Department offers alcoholic licensees two methods to compute the alcoholic beverage surcharge tax. The methods are known as the "purchase method" and the "sales method." The "purchase method" calculates the surcharge due to the Department based upon everything purchased during a given month. For the "sales method" the surcharge tax is computed based upon the actual cash register records for the sales during the reporting period. The Department may audit any licensee to compare the amounts remitted with the records maintained by the licensee to verify the correct surcharge tax was paid. In this case, the Licensee was audited for the period September 23, 2004 through August 31, 2006. To verify the surcharge amount was properly remitted, the Department reviewed the records of the beverage distributors used by the Licensee. When the Surcharge Audit Questionnaire was submitted the Respondent identified five suppliers of alcoholic beverages from whom the Licensee purchased beverages for the audit period. Those suppliers then provided their records to establish the beverages sold to the Respondent during the audit period. Based upon those records the Department compared the volume purchased and calculated the surcharge tax due and owing to the state versus the surcharge tax paid to the Petitioner during the audited period. Based upon that comparison, the Department found that the Licensee had failed to remit the correct surcharge payment. More specifically, the Department calculated that the Respondent owed the State a surcharge principle in the amount of $7,975.70. Based upon that amount the Department assessed a penalty in the amount of $4,217.87 along with interest in the amount of $1,409.54. The Respondent does not dispute the calculations for penalty and interest if the principle amount is correct. James Napolitano is the accountant for the Respondent. He was authorized to appear at the hearing on behalf of the Licensee but was unclear as to how the Department computed the surcharge amounts. Mr. Napolitano did not dispute that the Licensee was to remit the surcharge tax based upon the "purchase method." Mr. Napolitano represented that all purchases were to be signed for and opined that if they were, in fact, received by the Licensee the surcharge computation may be correct. Copies of the documents relied upon by the Department were provided to the Licensee at its business address. Mr. Napolitano did not receive them until the date of the hearing. Mr. Napolitano represented he intended to review the invoice records to verify the shipments were actually provided to the Licensee. No further information was offered by the Respondent.
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 providing that the Respondent owes the surcharge tax in the amount of $7,975.70, and assessing a penalty and interest based upon that amount. Further, the Final Order should provide a limited time for the repayment of the delinquent amount. Should the Licensee fail to timely remit the full amount, with penalty and interest, it is recommended that the license be suspended until such time as the amount is paid in full. DONE AND ENTERED this 3rd day of September, 2008, 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 3rd day of September, 2008. COPIES FURNISHED: Michael J. Wheeler, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre, Suite 40 1940 North Monroe Street Tallahassee, Florida 32399-2202 James P. Napolitano 404 Jerusalem Avenue Hicksville, New York 11801 James P. Napolitano 5711 Seminole Way Hollywood, Florida 33314 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Cynthia Hill, Director Division of Alcoholic Beverages And Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint dated April 12, 2010, and, if so, the amount of surcharge, late penalties, and interest owed, and the administrative penalty, if any, that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division, within the Department of Business and Professional Regulation, is the state agency responsible for regulating the distribution and sale of alcoholic beverages within the State of Florida. § 561.02, Fla. Stat. Pertinent to this proceeding, the Division maintained a district office located in Margate, Florida, which, in turn, had satellite offices located in Fort Myers, Florida, and West Palm Beach, Florida. At the times material to this proceeding, S.T. Complex held a 4COP Quota License, number 60-13059, which was issued by the Division and which, among other things, allowed S.T. Complex to sell alcohol by the drink for consumption on the its premises. In a letter dated October 11, 2007, the Division advised S.T. Complex that it was initiating a desk audit of S.T. Complex’s surcharge reports for the period extending from September 1, 2004, through June 30, 2007, using distributor sales information. The audit period was subsequently changed to the period extending from August 1, 2006, through June 30, 2007, because an audit of S.T. Complex’s surcharge reports had been completed for the period ending July 30, 2006. The audit period ended with June 30, 2007, because the surcharge on the sale of alcoholic beverages had been repealed as of that date. A questionnaire was enclosed with the October 11, 2007, letter, and S.T. Complex was asked to submit the completed questionnaire to the office of the Division located in Margate, Florida, no later than October 25, 2007. S.T. Complex was further directed to contact Yvonne McNaughton, the Division auditor assigned to conduct the audit of S.T. Complex’s surcharge reports, at the Division's Margate office if S.T. Complex had any questions about the audit; a phone number for Ms. McNaughton was provided in the letter. S.T. Complex did not return the questionnaire enclosed with the October 11, 2007, letter and did not contact Ms. McNaughton regarding the audit. Consequently, Ms. McNaughton used the questionnaire submitted by S.T. Complex for the previous audit. The questionnaire indicated that S.T. Complex had chosen the "purchase method" for the computation of the surcharge owed on its sales of alcoholic beverages, and S.T. Complex listed five distributors from which it purchased its supply of alcoholic beverages. Under the purchase method for calculating the alcoholic beverage surcharge in effect at the times material to this proceeding, a business reported its beginning inventory and paid the surcharge on the full inventory. The business was required to send in monthly reports disclosing the amount of alcoholic beverages, by category, that the business purchased the previous month to replenish the original inventory. The business was required to remit the surcharge monthly on the amount of alcoholic beverages purchased. The business would then provide the Division its ending inventory and would receive a credit against the total surcharges paid throughout the year. Pertinent to this proceeding, distributors of alcoholic beverages in Florida were required to report to the Division each month a detailed listing of the sales of alcoholic beverages in Florida. The distributors reported the name of the business, the amount in gallons of the various categories of alcoholic beverages sold to that business during the month, and the invoice number for each sale. This information was put into a database maintained by the Division, and the information in the database was used by the Division to compare the amount of purchases reported by a business with the amount of sales to that business reported by the distributors. In conducting the audit of S.T. Complex, Ms. McNaughton discovered that it had not submitted any surcharge reports during the audit period and had not remitted any surcharge on the purchase of alcoholic beverages during the audit period. Ms. McNaughton, therefore, relied on the information provided by the distributors reporting sales of alcoholic beverages to S.T. Complex for the audit period. The amount of alcoholic beverages the distributors reported selling to S.T. Complex during the audit period was 2604 gallons of beer, 138.68 gallons of wine, and 1724 gallons of liquor. After Ms. McNaughton deducted an allowance for spillage, she calculated that the amount of alcoholic beverages subject to the surcharge was 2473.81 gallons of beer, 131.74 gallons of wine, and 1552.01 gallons of liquor. Ms. McNaughton then calculated that S.T. Complex owed a total surcharge on alcoholic beverages purchased during the audit period of $7,129.90, which included a surcharge of $346.34 for beer; $140.96 for wine; and $6,642.60 for liquor purchased. Because S.T. Complex had not paid any surcharge during the audit period, a reporting penalty in the amount of $3,433.70 was added to the amount of the surcharge due, together with interest in the amount of $512.53, for a total statutory liability of $11,076.13. A letter dated April 22, 2008, was prepared by the Division advising S.T. Complex of the amount of statutory liability owed as a result of the audit. Prior to sending the audit letter to S.T. Complex, the audit was reviewed by another Division auditor to determine if Ms. McNaughton had completed the audit properly and to verify her calculations. This review was completed on June 4, 2008, and no errors were found. The April 22, 2008, letter was sent to S.T. Complex by certified mail on June 11, 2008, and the return receipt shows that it was received on June 12, 2008. S.T. Complex was advised that, if it disagreed with the audit findings, it had 30 days from the date the letter had been received to contact Ms. McNaughton, the auditor in charge of the audit. Ms. McNaughton's phone number and fax number were included on the letter, as well as the address for the Division's Margate, Florida, office. Ms. McNaughton did not receive any communication from S.T. Complex about the audit, and the matter was forwarded to Captain Carol Oswiany on August 28, 2008, with a request that she file an administrative case against S.T. Complex for failure to pay the amounts stated in the surcharge audit for August 1, 2006, through June 30, 2007. At the times material to this proceeding, Frank Garcia was the owner of S.T. Complex, and he managed the Fun House Nightclub, which was located in West Palm Beach, Florida. Mr. Garcia was current with his surcharge payments as of the end of July 2006, and he was aware that the surcharge would be terminated as of June 30, 2007. Mr. Garcia believed that, because he would have an inventory of alcoholic beverages on June 30, 2007, he would receive a substantial offset against the surcharge he owed for the period extending from August 1, 2006, through June 30, 2007. Consequently, anticipating that his surcharge liability would be small and that it would be better to get a credit against the surcharge owed than to wait for a refund of the surcharge paid during the audit period, Mr. Garcia decided not to submit monthly reports on the purchases of alcoholic beverages for the nightclub during the audit period or to remit the surcharge due on these monthly purchases. At the times material to this proceeding, Mr. Garcia kept his weekly inventory on a form he had devised for his own use. He used the point system for determining how much of each category of alcoholic beverages had been used during a given period of time. Mr. Garcia compared this information with the amount of alcoholic beverages in his stockroom, and he was able to determine how much of the various categories of alcoholic beverages he needed to purchase to replenish his inventory. The information on the Mr. Garcia's forms was handwritten, and it was not transferred into a computer database. Mr. Garcia routinely discarded these inventory forms; they were used only for determining how much alcoholic beverages he needed to purchase for a given period of time and were essentially useless after the alcoholic beverages were ordered. The nightclub was located a few blocks from the Division's West Palm Beach office, which was a satellite office of the district office in Margate. Because of its close proximity to Mr. Garcia's place of business, he routinely dealt with that office and had rarely had contact with the Division's Margate or Tallahassee, Florida, offices. After he received the letter dated April 22, 2008, Mr. Garcia went to the Division's West Palm Beach office and spoke with Captain Carol Owsiany. According to Mr. Garcia, Captain Owsiany told him how to handle the matter. Mr. Garcia then prepared a letter and went back to the West Palm Beach office and spoke with a Mr. Wilson. Mr. Wilson telephoned the Division's Tallahassee office, and Mr. Garcia assumes that Mr. Wilson was told how to proceed. Mr. Garcia provided Mr. Wilson with his explanation of why he believed the audit was wrong and told Mr. Wilson he wanted an informal hearing. Mr. Garcia observed Mr. Wilson type something into the office computer and assumed that he was transmitting the pertinent information to Tallahassee. Although Mr. Garcia's testimony on this point is vague and somewhat confusing, he insisted that he provided the Division with the ending inventory of June 30, 2007, although it is unclear to whom he provided the inventory. It is clear, however, that Mr. Garcia had no contact with Ms. McNaughton. Mr. Garcia heard nothing further from the Division until he was served with the Administrative Complaint dated April 12, 2010, which was signed by then Major Owsiany. At the time he received the Administrative Complaint and at the time of the final hearing, Mr. Garcia did not have in his possession a copy of the ending inventory for June 30, 2007. Ultimate findings of fact The evidence presented by the Division is sufficient to establish with the requisite degree of certainty that S.T. Complex failed to file monthly reports on the quantities of the alcoholic beverages it purchased during the audit period and failed to remit the surcharge due on its purchases of alcoholic beverages for the audit period. The testimony of Mr. Garcia that, upon receiving the April 22, 2008, letter, he went to the Division's West Palm Beach office for instructions on how to proceed and that he thought the matter had been resolved as a result of the actions of the Division's West Palm Beach office is credited. Significantly, however, Mr. Garcia failed to follow the explicit instructions in the April 22, 2008, letter that he contact Ms. McNaughton regarding any disagreement he had with the audit and explain to her the reasons for contesting the findings. For this reason, Mr. Garcia's defense that he timely advised the Division of his disagreement with the audit and provided the Division with the ending inventory for June 30, 2007, is not persuasive.
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: Finding S.T. Complex LLC, d/b/a Fun House Nightclub, guilty of having failed to report and remit the surcharge on alcoholic beverages consumed on its premises during the period extending from August 1, 2006, through June 30, 2007, in violation of section 561.501(1)(a), Florida Statutes; Requiring S.T. Complex LLC to remit to the Division $11,076.13, which is composed of the principal balance of the surcharged owed for the period extending from August 1, 2006, through June 30, 2007, in the amount of $7,129.90, late penalties in the amount of $3,433.70, and interest in the amount of $512.53. Finding that, as a consequence of its violation of section 561.501(1)(a), S.T. Complex violated the Beverage Law and, therefore, section 561.29(1)(a); and Imposing an administrative fine in the amount of $1,782.47, as specified in the table attached to Florida Administrative Code Rule 61A-2.022 DONE AND ENTERED this 26th day of January, 2011, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 26th day of January, 2011.
Findings Of Fact The Petitioner has complained against the named Respondent pursuant to the accusations set forth above. The Respondent requested a formal hearing to be conducted in accordance with the provisions of Section 120.57(1), Florida Statutes, but did not attend the hearing. However, the hearing having been set at Respondent's request was held and the Petitioner's case was presented. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has as its responsibility the licensure and regulation of beverage license holders in the State of Florida. Harry's, Inc., which trades under the name of Night Gallery III, is the holder of License No. 58-1036, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located at 6010 Old Winter Garden Road, Orlando, Florida. On November 15, 1979, Beverage Officer Nathan Cahoon entered the licensed premises of Harry's, Inc., to investigate alleged Beverage Law violations. He observed a woman on the stage dancing who was subsequently identified as Denice Dyer. Thereafter, she approached Officer Cahoon and asked him to buy her a drink, which he did. She advised him that she was supposed to "hustle" drinks but not sex. Subsequently, she offered to give Officer Cahoon a "lap dance" which he refused. She also offered to "screw" Officer Cahoon (meaning to engage in sexual intercourse) for $25.00 or $30.00, and suggested using a back room of the licensed premises (Counts 1 and 2). On November 15, 1979, Beverage Officer C. E. Cruce entered the licensed premises of Harry's, Inc., to investigate alleged Beverage Law violations. He was approached by a woman known as "Sissy," who offered to give him a "lap dance" for $5.00, which be accepted. To perform this "dance," "Sissy" straddled the lap of Officer Cruce and went through a series of gyrations while a record was playing. Her top was removed during this procedure, exposing her breasts, but not her nipples. Officer Cruce later observed "Sissy" dancing on the stage, where she had been summoned by the bartender. Officer Cruce was approached by a woman known as "Misty," who solicited a drink from him. He purchased a beer for her at a cost of $2.50, which was one dollar more than the beer he purchased for himself. He observed that she paid the bartender the money he gave her (Count 3). On November 15, 1979, Beverage Officer B. A. Watts, Jr., entered the licensed premises of Harry's, Inc., to investigate alleged Beverage Law violations. He observed a woman dancing on the stage who later became known to him as "Peaches." She approached Officer Watts and solicited a drink from him. He purchased a beer for her and paid the waitress one dollar more for the drink than he paid for his own (Count 4). "Peaches" also performed a "lap dance" on Officer Watts and then offered to "take care" of him, stating that she would perform sexual intercourse or give him a "hand job" for $30.00 (Count 5). On November 19, 1979, Beverage Officer J. E. Kiker, Jr., entered the licensed premises of Harry's, Inc., to investigate alleged Beverage Law violations. Officer Kiker was approached by Julia Bernice Brooks, who solicited five drinks from him. Officer Kiker purchased these drinks from the waitress for $2.50 each. Julie Bernice Brooks also offered to engage in sexual intercourse with Officer Kiker (Counts 6 and 11). Officer Kiker observed Julie Bernice Brooks dance on stage two or more times. Although she was not nude, she pulled her costume aside so as to expose her pubic area to Officer Kiker and other patrons in the audience (Count 12). Officer Kiker observed Ozzlyn Wright dancing on the stage. On two occasions, she disrobed and bent over so as to expose her vaginal and anal openings to the audience. On a third occasion, she caused the face of a male patron to make contact with her pubic area (Counts 13 and 14). Officer Kiker observed a dancer on stage who he later identified as "Sissy." Although she was not nude, she pulled her costume aside so as to expose her pubic area to Officer Kiker and others in the audience (Count 15) . Officer Kiker observed that the bartender called Julie Bernice Brooks, Ozzlyn Wright, and "Sissy" to the stage periodically and that they received tips from members in the audience. On November 29, 1979, Officer Kiker returned to the licensed premises of Harry's, Inc., for the further investigation of alleged Beverage Law violations. He was approached by Julie Bernice Brooks, who asked him to buy her wine, which he did (Count 19).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that charges contained in Counts 7, 8, 9, 10, 16, 17 and 18, and that all charges involving alleged violation of Section 877.03, Florida Statutes (1979), specified in the Notice to Show Cause/Administrative Complaint be dismissed. It is further RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2, 3, 4, 5, 6, 11 and 19 of the Notice to Show Cause/Administrative Complaint. It is further RECOMMENDED that Respondent be found guilty of violating Section 800.03, Florida Statutes (1979), as alleged in Counts 12, 13, 14 and 15 of the Notice to Show Cause/Administrative Complaint. It is further RECOMMENDED that License No. 58-1036, Series 2-COP, held by Respondent, Harry's, Inc., be revoked. RECOMMENDED this 31st day of December, 1980, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1980. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Allen McCormick, Esquire 217 North Eola Drive Orlando, Florida 32801 David Flaxer, Esquire 615 East Princeton 515 Loch Haven Executive Building Orlando, Florida 32803
Conclusions THIS CAUSE came before the Director, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division), and enters this Final Order in the above styled cause pursuant to authority vested by Chapter 120, Florida Statutes. LI TAT 1. On September 20, 1997, the Division issued an Administrative Action against Respondent, a copy of which is attached hereto and incorporated by reference. 2. On April 15, 1997, an administrative hearing was held in 1 of 6 this matter in Ocala, Florida, before Administrative Law Judge Donald R. Alexander, the Division of Administrative Hearings, pursuant to §120.569 and §120.57(1), Florida Statutes. 3. On May 12, 1997, the Administrative Law Judge issued his Recommended Order in this cause. IN {e) T The Division hereby adopts and incorporates by reference the Findings of Fact, numbered 1 through 9, as set forth in the Recommended Order.
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 Aki-San held an alcoholic beverage license which expired October 1, 1977. Only on January 10, 1978, did Aki-San make application for "delinquent renewal" of its license. In the unlicensed interim, one of respondent's truckdrivers continued to deliver Kirin beer to Aki-San. At all pertinent times, respondent was licensed as a distributor of alcoholic beverages. Respondent employs numerous truckdrivers to distribute alcoholic beverages to some 2,000 licensees under the beverage law. Each driver has a route book containing the license number of each of the customers for which he is responsible. The truck drivers have standing instructions to insure, before delivering alcoholic beverages, that the licensees they serve have renewed their licenses for the year. Posted on a bulletin board on respondent's premises, in October of 1977, was a notice reminding the drivers to ascertain whether their customers' licenses had been renewed.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the notice to show cause issued in this case. DONE and ENTERED this 17th day of November, 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: Clifford Distributing Company 990 S.W. 21st Terrace Ft. Lauderdale, Florida Mary Jo M. Gallay Staff Attorney 725 South Bronough Street Tallahassee, Florida 32304
The Issue The issue for determination is whether the Respondents or their employee sold an alcoholic beverage to a person under the age of 21, on December 22, 1988, in violation of section 562.11(1)(e), Florida Statutes. If a violation occurred, a recommendation regarding discipline must be made. In addition to the substantive issue, Respondents claim that the agency's procedures regarding administrative prosecution for beverage license violations are unconstitutional. This issue is preserved for the record, but is not determined here as this is an essentially judicial function. Carrollwood State Bank v. Lewis, 362 So. 2nd 110, 113-14 (Fla. 1st DCA 1978) cert den mem. 372 So. 2nd 467 (1979)
Findings Of Fact At all times pertinent to the allegation of the Notice to Show Cause, Respondents were doing business at 3200 South Orlando Drive, Sanford, Seminole County, Florida, as Cavalier Motor Inn, under alcoholic beverage license no. 69- 004675. On the afternoon of December 22, 1988, the Buccaneer Lounge at the Cavalier was busy with office Christmas parties. It was dark, crowded and noisy. In response to an earlier complaint, two investigators from the Division of Alcoholic Beverages and Tobacco (DABT) entered the lounge around 5:00 p.m. with an underage operative. That operative, Sherri Russell was born on August 18, 1971, thus was 17 years old in December 1988. She is a friend of the daughter of one of the investigators, David Ramey, and had worked for the agency as a volunteer operative on several prior occasions. Miss Russell entered the lounge with investigators Ramey and Glover a few feet behind her. She found a place in front of the bar, and the female bartender asked what she wanted to drink. She responded a "Bud Light"; the bartender told her how much it cost and got the drink. Miss Russell paid the bartender and took control of the drink from the bartender. At that, Investigator Ramey approached, removed the drink from Miss Russell and identified himself to the bartender. Miss Russell left the lounge with Investigator Glover. According to previous instructions, Miss Russell had no identification with her. She was told to respond truthfully if asked her age or if asked for identification. The money for the drink was provided by the investigators. The entire incident took about five minutes. The only person behind the bar was the female bartender. Co-Respondent, Cesare Polidoro, was standing approximately six to seven feet away from Miss Russell, in an opening in the bar, with a clear view of the transaction. As Investigator Ramey spoke to the bartender, Cesare Polidoro identified himself as the owner and the three moved into another room to talk. The only person working in the lounge on December 22, 1988, was the female bartender, Sylvia Wilson. Another employee was out sick. Cesare Polidoro was there to keep order and to fetch change, if necessary, but he never tends bar and he did not assist on this occasion. Even though the lounge was extremely busy, he did not call to have his partner come help. Although he did not anticipate the one employee would be out sick, Cesare Polidoro did anticipate the crowd on December 22, 1988. There were two parties scheduled in the lounge for around 4:30 or 5:00 p.m. The companies scheduled in advance and alerted the owner that approximately 150 people would be involved. Cesare Polidoro retired and moved to Florida from Elizabeth, New Jersey, where he had worked for twenty-five years as a fire-fighter. He invested his life savings in the business, at the Cavalier, now known as Cesare's Palace. His policy is to avoid selling alcoholic beverages to minors and he instructs his employees in that regard. Both he and his partner continually remind the employees to check identifications. Minors are not good for business as they cause problems and do not have the kind of money to spend ten or fifteen dollars over the counter, according to Cesare Polidoro. The employees are generally conscientious in verifying ages and identification of patrons. Sylvia Wilson, who has criminal charges pending with regard to the alleged sale, refused to testify on matters directly related to the criminal charges. Cesare Polidoro denied that he witnessed the sale and claimed that he had never seen Sherri Russell before the hearing. Investigator Glover, however, observed Polidoro looking directly at Miss Russell during the entire transaction. Polidoro's credibility is discredited by two particularly blatant artifices he employed at the hearing. In response to his attorney's question with regard to educational programs for his employees regarding serving alcoholic beverages to minors, he invoked his experience as a "law enforcement officer" in New Jersey and the many cases he saw involving minor children and drugs. As a firefighter, however, he was not an armed law enforcement officer and had limited arrest powers, not including drug offenses. He also claimed that "a fellow by the name of Mr. York" came up to him on the December 22nd and gratuitously volunteered that the investigator bought the drink and gave it to the young woman. He did not explain how this person, whom he did not know, would be interested in sharing the information or would understand its importance. On the date of the hearing, this ephemeron, just as inexplicably, withdrew his assistance and allegedly told Polidoro he was too busy to come testify. No evidence adduced at hearing established Anthony Milazzo's culpability or implication in the unlawful sale. Cesare Polidoro was culpable. He watched the incident. Moreover he allowed a single employee to become so "swamped" (her term) that it became virtually impossible for her to meaningfully comply with his instructions regarding checking identifications. The DABT policy regarding incidents of sales to minors is to file administrative charges immediately if the licensee was on the premises. Otherwise, the licensee receives a notice after the first violation and criminal charges are filed against the employee or agent who made the sale. For the second violation, the licensee is notified that an investigation is open and criminal charges are filed against the person serving the minor. For the third violation, administrative charges are filed against the licensee and criminal charges are filed against the employee.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that a Final Order be entered finding the licensee guilty of a violation of section 561.29(1)(a), Florida Statutes and section 562.11(1)(a), Florida Statutes, and imposing a civil penalty of $1,000.00. DONE and ENTERED this 23rd day of June, 1989 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. PETITIONER'S PROPOSED FINDINGS Adopted in Paragraph #1. Adopted in substance in paragraphs #3, 4, and 5. Rejected as cumulative. Adopted in substance in paragraph #3. Rejected as cumulative and unnecessary, except for the observation of Polidoro, which is adopted in paragraph #11. Adopted in substance in paragraphs #2 and 8. Rejected as unnecessary, except for Ms. Smith's nonappearance at work on the 22nd, which is adopted in paragraph #8. Adopted in part in paragraphs #10 and 11, otherwise rejected as unnecessary. Adopted in substance in paragraphs #8, 10, and 12. Rejected as unnecessary. RESPONDENT'S PROPOSED FINDINGS Adopted in paragraph #1. through 4. Adopted in paragraph #3. Adopted in paragraph #2. and 7. Rejected as contrary to the weight of evidence. Adopted in paragraph 8. Rejected as contrary to the evidence relating to the incident in issue. Rejected in part, as the age of Sherri Russell was not checked in the incident at issue. Otherwise adopted in paragraph #8. Adopted in paragraph #4. Rejected as contrary to the weight of evidence. Adopted in paragraph #14. Rejected as unnecessary. and 16. Rejected as cumulative. COPIES FURNISHED: JOHN B. FRETWELL, ESQUIRE ASSISTANT GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1007 RICHARD A. COLEGROVE, JR., ESQUIRE 801 ORIENTA AVENUE SUITE 2600 ALTAMONTE SPRINGS, FLORIDA 32701 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING 725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO 725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000 JOSEPH A. SOLE GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION 725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000
