Findings Of Fact By Stipulation filed September 11, 1986, the parties agreed to findings of fact 1-11. Donna Sawyer filed a preliminary application to participate in the state lottery for liquor license on January 20, 1984, on Department of Business Regulation form No. 747L. On September 18, 1984, Donna Sawyer was notified by Respondent that she had been selected in the lottery held on September 12, 1984, to be eligible to apply for a state quota liquor license. That on or about November 2, 1984, Donna Sawyer, acting through her wholly owned corporation, Sarasota County Liquors, Inc., filed a sworn "application for Alcoholic Beverage License" (Department of Business Regulation Form No. 700L), with the Division of Alcoholic Beverages and Tobacco. That application included a description of a location which was to be the licensed premises. A Personal Questionaire, Department of Business Regulation Form 710L, was also included by Petitioner with said application. The license application was denied by Respondent on March 8, 1985. The grounds for the denial as stated in the denial letter were Petitioner's failure to provide: (1) proof of right of occupancy to the premises Petitioner was seeking to license; (2) verification of financial investment; (3) business name, and (4) sketch of the premises affixed to the application. On April 10, 1985, Sandra Allen, Esquire, acting on behalf of Petitioner, requested an administrative hearing in order to contest the March 8, 1985, denial of the subject license. Joseph Forbes, Esquire, of Gainesville, Florida, was then retained by Petitioner to resolve the denial of the requested license, which was then pending before the Director of the Division of Alcoholic Beverages and Tobacco, as an informal administrative proceeding, pursuant to Section 120.57(2), Florida Statutes. In this capacity, Forbes, among other things filed a Motion for Continuance and Stipulation in this case attached to a June 6, 1985 cover letter. Forbes thereafter reached an agreement in the informal proceeding with Thomas Klein, Esquire, then counsel of record for Respondent, evidenced by letter dated October 1, 1985, which in its relevant portions indicated: This is to continue our telephone conversation of October 1, 1985, in which the following was discussed and agreed upon: Sarasota Liquors - your client will have 45 days from the date of this letter to cure the defects set forth in the March 8, 1985 letter of denial. Please direct your client to respond to the Tallahassee office. In order to rectify the original deficiencies causing the license denial, Petitioner re-filed an Application for Alcoholic Beverage License, Department of Business Regulation Form 700L, including exhibits, with Respondent, on or about November 13, 1985. Petitioner's re-filed license application was denied by Respondent on February 19, 1986, for two reasons: (1) "Application incomplete as applicant does not have right of occupancy to the premises for which she is seeking to license," and (2) "Division is unable to fully investigate applicant's financial documentation." On or about November 4, 1985, while searching for a location to submit as the licensed premises, in the re-filed application of November 13, 1985, Donna Sawyer and Ocie Allen met with Alton Allen at 258 S. Tamiami Trail, Sarasota, Florida, who was an agent for Walter Spector, owner of several retail store spaces at that address. Ocie Allen, acting on behalf of his corporation, Ft. Myers A & T Corporation, entered into a lease for a store at 258 S. Tamiami Trail, Sarasota, Florida. On or about November 4, 1985, Ocie Allen, acting on behalf of his corporation Ft. Myers A & T Corporation, purportedly subleased the premises at 258 S. Tamiami Trail, Sarasota, Florida to Petitioner. That Petitioner had submitted a letter dated November 4, 1984, signed by Jim Irey, as President of Florida Home Equity of Lee County, Inc., which is attached to the November 13, 1985 application, which stated that certain financial support would be available to the subject alcoholic beverage sales contemplated by Petitioner. That as a result of the investigation following the November 13, 1985 application, Respondent was "unable to fully investigate applicant's financial documentation," since Respondent's agents were unable to locate Jim Irey or his company at the address indicated on the November 4, 1984 letter. Based upon the evidence presented, the following additional findings of fact are made: Donna Sawyer's preliminary application to participate in the state lottery for a quota liquor license included instructions to the applicant that it was the first part of a two part application and that the second part would require proof of occupancy for the premises to be licensed. The second part of the application was that license application filed with the Division of Alcoholic Beverages and Tobacco on November 2, 1984, and again on November 13, 1985. As part of the notification that she was eligible to apply for a state quota liquor license, Donna Sawyer was advised that she had 45 days to file a full and complete application and that if she failed to do so, this failure would be deemed as a waiver of her right to file for a new quota liquor license. The letter also advised her that the Division had 180 days from the date of the drawing to act upon her application. The Petitioner's first quota liquor license application was denied on March 8, 1985. March 8, 1985, was within 180 days of the applicable lottery drawing held on September 12, 1984. The agreement of the parties to resolve the March 8, 1985, denial of the subject license evidences an tacit agreement by the parties to waive any applicable time limits existing at that time in order to allow the Petitioner to resubmit a corrected application within 45 days as allowed by the Thomas Klein letter of October 1, 1985. The Division investigated the Petitioner's second application and determined that the applicant did not have a right of occupancy to the premises sought to be licensed, 258 Tamiami Trail, Sarasota, Florida, because Petitioner only had a purported sublease for the subject premises from Ft. Myers A & T Corporation. Ft. Myers A & T Corporation had obtained a lease for the property on November 4, 1985, from Walter Spector, deceased at the time of the administrative hearing. Said lease between Walter Spector, lessor, and Ft. Myers A & T Corporation, lessee, provided that subleases must be approved by the lessor and be in writing. The Petitioner did not produce evidence of written authorization by Walter Spector to allow Ocie Allen or Ft. Myers A & T Corporation, Inc., to sublease the subject premises to the Petitioner or to any other person. The only evidence of such authorization was the hearsay statement by Ocie Allen that Walter Spector had orally given such authorization. Furthermore, Mr. Alton Allen, then agent for Mr. Spector for leasing this property testified he had no knowledge that Mr. Spector was ever informed of a sublease. Therefore it is found that the sublease violated a material provision of the underlying lease from Walter Spector to Ft. Myers A & T Corporation. Mr. Ocie Allen, agent for the Petitioner and Donna Sawyer, testified and it is found that there was no intention for the Petitioner to operate an alcoholic beverage license at the 258 Tamiami Trail location. Petitioner's November 13, 1985, license application was also denied on February 19, 1986, for: Application incomplete as . . . the Division is unable to fully investigate applicant's financial documentation. This denial was due to the Division's agents being unable to verify the availability of financial funding from Florida Home Equity of Lee County, Inc. The Petitioner had submitted a November 9, 1984 letter from that corporation in its November 13, 1985 license application offering certain funding. Upon checking phone directories and making attempted telephone calls to the source named in that letter, the Division was not able to find the named business as source of funding. The Division further investigated Florida Home Equity of Lee County, Inc. as an alleged source of funding by sending an agent, Robert B. Baggett, to the address supplied by the applicant in a November 9, 1984 letter from Florida Home Equity of Lee County, Inc., only to find that no such business was located there and no neighbors knew of a new location. Sandra Allen, Esquire, testified that the source of the funding at the time of the second application was a new company run by the same person who was behind Florida Home Equity of Lee County, Inc., which was named as the source in the November 9, 1984 letter. However, this new company's name and address and verification of continued financial support to the Petitioner could not reasonably be determined by the Division and no evidence was presented that the Division had ever been provided with said new company's name or location prior to the denial of the second license application. Contradictory testimony was presented by Lt. Ewing and Sgt. Mills as to the existence of a policy requiring a "14 day" deficiency notice letter to applicants. It is clear that that policy was not recognized in the office supervised by Sgt. Mills. It was also not established that Lt. Ewing had the authority to set or enunciate policy for the Division.
The Issue The issue in this case is whether Respondent failed to comply with the requirements of its license under the beverage law. Specifically, Respondent purportedly violated the actions set forth in two counts, as follows: Count I--Respondent failed to "provide the required service area, seating and equipment to serve 200 persons full course meals at tables at one time as required by its license. [S]ections 561.20(2)(A)(4), within Section 561.29(1)(A), Florida Statutes"; and Count II--Respondent failed to "provide at least 4,000 square feet of area dedicated to the operation of the restaurant as required by its license. [S]ections 561.20(2)(A)(4), within Section 561.29(1)(A), Florida Statutes." Respondent has also raised the issue of whether Petitioner should be estopped from enforcement actions concerning the alleged violations.
Findings Of Fact The Division is the state agency responsible for, inter alia, issuing and monitoring licenses to businesses within the state relating to the sale of alcoholic beverages. Respondent is the holder of an alcoholic beverage license, No. BEV46-261 Series 4-COP/SR (the "License"). An SR, or Special Restaurant, license is a unique kind of license which was issued by the Division prior to the establishment of quota licenses. Holders of SR licenses are allowed to sell beer, wine and liquor, package sales and sales by the drink on the premises. Quota licenses are issued based on a population ratio, i.e., no more than one license per 7,500 people in a given geographic area may exist. When Respondent obtained its SR license in 1979 (by way of transfer from the original owner of that license), the existing statutes mandated that the License be housed in a building of not less than 4,000 square feet with room in the building to seat at least 200 people at any one time. The statutes also required that food be served at all times the establishment was open. In 1979, when Respondent filed an application seeking to obtain the transfer of the SR license that had been issued in 1957, the application included an Affidavit from Marianne Gunn agreeing to a specific location (2704 Anderson Avenue, Fort Myers, Florida)1 for the business, which was to be known as the Stardust Lounge. The Affidavit affirmed Marianne Gunn's agreement to maintain the premises with the necessary equipment and supplies to seat 200 people at any one time. The Affidavit affirmed that the building housing Stardust Lounge would be at least 4,000 square feet in size. The License was then transferred to Respondent by the Division. Approximately one year after receiving the License and commencing operations, the Stardust Lounge burned down. Some undisclosed portion of the building remained, but no business could be operated on the site. It would have been difficult to rebuild the building under the then-current building codes. Further, the City of Fort Myers expressed its opposition to the existence of an alcoholic beverage establishment at that site. Some time after the fire, Respondent asked the Division to place the License in an inactive status (also known as placing a license in escrow). The request from Respondent asked that the License be placed in escrow for up to eight months. Respondent represented that it was in negotiation with the City of Fort Myers concerning a land swap to settle certain claims Respondent had against the city. Respondent estimated the negotiations would go on for approximately two months. Respondent advised the Division that if negotiations were successful, it would allow the License to be cancelled upon transfer of the premises to the city. If the negotiations were not successful, Respondent estimated it would need at least six months to sell the property at a private sale. It was Respondent's intent that the License be "taken care of" along with the land deal. "That's what that was all about," Fox testified at final hearing. Based upon Respondent's request, the Division apparently placed the License in escrow. There was no documentation presented at final hearing to substantiate this fact. However, the Division sent Respondent a bill each year to renew the License despite there being no physical site for operating a business by the licensee. Respondent dutifully paid the renewal fee each year. Eighteen years after the License was placed in escrow, the State of Florida commenced condemnation proceedings relating to a portion of the premises where the Stardust Lounge had formerly existed.2 During this nearly two-decade hiatus, Respondent continued to renew the License each year upon notice from the Division. Respondent's counsel sent a letter to the Division dated June 27, 2000, which said in pertinent part: We send you this letter at the request of our client, Mrs. Fox. . . . She has a liquor license in escrow with the Department. Due to the condemnation taking, she will not be able to utilize the license at this location and she has agreed that if this license can be moved to another location, it would not be an issue in the condemnation case. The letter did not address the issue of Respondent's prior representation that the License would be cancelled within eight months of its May 21, 1982, letter, some 18 years earlier. The Division responded to Respondent's counsel in a letter dated the very next day which stated in pertinent part: I am responding to the request of you and the licensee wanting to know if the liquor license that is held in the name of Marianne Gunn, DBA Stardust Lounge is movable. In the case of the property being taken by the state, the license may be moved one time and only one time. Providing that we have copies of all paperwork involved with the property condemnation taking. This license is not a moveable license unless in a case like this. The only thing that the licensee needs to understand is that it is changing location only one time. The Division's letter did not mention the escrow status of the License, either. The inartfully worded request and nebulous response added to the confusion concerning the status of the License. There is no evidence indicating whether any information concerning the condemnation was ever provided to the Division. Respondent could not say at final hearing when the condemnation actually occurred, how much land was taken, or how much was paid for the land. The License apparently remained in escrow at that time pending a move to some other location. Marianne Gunn Fox testified that the reason for her negotiations with the City of Fort Myers in 1982 was partly because the city did not want the bar located at the site where it had burned down. She testified that she had received insurance proceeds from the fire and intended to rebuild the lounge, but the city objected. That was the only testimony given as to why the lounge was not rebuilt during the 18 years it remained in escrow. Glen Fox testified that the original site of the Stardust Lounge would not be acceptable for rebuilding the structure after the fire due to certain building code issues. Both Mr. and Mrs. Fox testified that there was insufficient land available to build on site after the property condemnation taking. Fox testified that she owned three lots at the corner of Martin Luther King Boulevard and Cranford Avenue. Those lots were 50-feet-wide by 150-feet-deep (for a presumed total lot size of 150-feet-wide by 150-feet-deep). Fox does not know the size of the lots after the condemnation proceeding. It has long been the policy of the Division, pursuant to its interpretations of the Beverage Law set forth in statute, that SR licenses could not be moved from their original location. In 2005 or 2006, a licensee who was operating a business in American Beach filed a lawsuit against the Division seeking to move his SR license to a different location. As a result of the lawsuit, the Division changed its existing policy to allow for such a change. The new policy was posted on the Division's website for review by SR license holders. There is no evidence that SR license holders were notified about the change in policy by any other means. Respondent does not remember receiving any notice whatsoever regarding the change in policy. Within four to six months, and as a result of further legal research by Division attorneys, the Division once again altered its policy concerning the transfer of SR licenses. The newly-revised policy established the current Division position, i.e., that no SR license could be moved for any reason. Further, the policy states that all licensed premises must be in continuous operation or else the license would be forfeited. Again, the Division posted the new policy on its website and notified all SR license holders by way of letters to their establishments (or, in the case of Respondent, to the last known address). It is unclear from the record whether the letter was ever sent to or received by Respondent, although the Division obviously had Respondent's address because it sent renewal notices there each year. Some time after the change in policy, the Division determined that Respondent's license must be terminated or revoked. At that time, there were no premises associated with the License. The last time the License was in operation was 1979 or 1980, some 28 years prior to the Administrative Action being filed. The official address of the premises on the License during each of the renewal periods since 1980 had been "Escrow." That is, there was no site address associated with the License. There was obviously some address associated with the License, however, since Fox received annual billing statements from the Division. In November 2007, the Division issued an Administrative Action against Respondent concerning the License. The Administrative Action alleged that Respondent had not complied with the requirements of the License, i.e., size of premises and on-going operations. The Division indicated that it would sanction the License, including, but not limited to, revocation. Respondent does not dispute the fact that it is not complying with the requirements for an active license, but maintains that its escrowed license is exempt from those requirements. The License, despite being inactive for 28 years, is still apparently valid at this point in time (based on the Division's acceptance of Respondent's renewal payments each year). The License may have some monetary value, but there was no competent, substantial evidence presented at final hearing as to what the value might actually be. Marianne Gunn Fox testified that she did not know how much the License was worth, only that "nothing is worth as much as it used to be." Fox cannot remember how much she paid for the License when it was transferred to her. She cannot remember how much she asked for the License when she offered it for sale. She cannot remember how much was offered for the License as part of the condemnation sale. Fox does know that she paid an annual fee each year for renewal of the License. She does not know what the fee was each year, but "I paid whatever the state told me was due." (The Division testified that the annual fee was $1,820.00. Presuming 28 years of payments, the total paid to-date would be approximately $50,960.) When suggested to Fox by her counsel that the License was worth $300,000, she agreed with that amount, but could not substantiate why that amount was valid. Fox testified that she would like a "reasonable time" to market the License for sale. She did not express what a reasonable time might be, but has not been able (or willing) to sell the License for over 28 years. Respondent put the License "out for feelers" three or four years ago, but did not include an asking price for the License. About seven months ago, someone told Fox that the License was worth approximately $326,000, but there is no support for that estimate. Patrick Roberts, former law enforcement major with the Division, opined that he would have handled Respondent's case differently had it come across his desk. He opined that the requirement for 4,000 square feet and seating for 200 people should only apply to an existing business, not one in escrow. Roberts agreed that only quota licenses are allowed escrow status by statute. Roberts did not express any opinion as to the requirement that a business be on-going at all times. Roberts agreed that an SR license should not be placed in escrow, but said he'd try to negotiate a settlement, rather than file an Administrative Action. He did concur that an Administrative Action might be necessary if all else failed. Roberts did not opine that an Administrative Action was improper, only that it wasn't his first choice of action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, revoking Respondent, Fox Marianne Gunn, d/b/a Stardust Lounge's, License No. BEV46-261 Series 4-COP/SR. DONE AND ENTERED this 11th day of June, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2010.
The Issue The issue to be determined is whether Petitioner’s request to renew a lien against alcoholic beverage license number 62- 08383 on or about July 8, 2011, should be approved or denied.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent is the state agency charged with the licensing, regulation, and enforcement of Florida’s alcoholic beverage laws pursuant to section 20.165(2)(b) and chapters 561- 568, Florida Statutes, including recordation of liens against alcoholic beverage licenses and provision of notice to lienholders pursuant to section 561.65. Petitioner is the holder of a recorded lien against alcoholic beverage license number 62-08383, a 4COP spirituous alcoholic beverage license, commonly referred to as a quota license, which was issued pursuant to sections 561.20(1) and 565.02(1)(a)-(f) for use in Pinellas County. Liens and Security Interests in Alcoholic Beverage Licenses Section 561.65 governs mortgages, liens, and security interests against spirituous alcoholic beverage licenses. DABT has a lien section within its Bureau of Licensing that is responsible for the oversight of lien recordings and lien searches. To perfect a lien or security interest in a spirituous alcoholic beverage license that may be enforceable against the license, the entity holding the security interest or lien must record it with DABT within 90 days of the date of creation of the lien or security interest, using forms authorized by DABT. The forms adopted by DABT require the names of the parties and the terms of the obligation being recorded. § 561.65(4), Fla. Stat. Form DBPR ABT-6022, Application for Mortgagee’s Interest in Spirituous Alcoholic Beverage License, is used to record a new lien, a lien assignment or assumption, or a lien renewal or extension. The form is adopted by rule. Fla. Admin. Code R. 61A-5.0012. Upon receipt of a request to record a lien or the renewal of an existing lien, DABT will review the provided documentation and, if the documentation is in order on approved forms and accompanied by the security agreement and statutorily- required payment, will record the lien or lien renewal. If there is a deficiency noted during review of the lien documentation submitted, DABT will issue a 14-day deficiency notice to the requesting entity to provide any missing information. If timely corrected, DABT will record the lien or lien renewal. Section 561.65(4) provides that any lien or security interest filed with DABT on or after July 1, 1995, expires five years after recordation by DABT unless renewed by the lienholder within six months prior to its expiration date. Statutory Notice Requirements to Lienholders Recording a lien not only makes it enforceable, but provides assurance to the lienholder that it will receive notice of pending actions by DABT against the license that may compromise the lien’s vitality. Section 561.65 also sets forth requirements for DABT to provide notice to lienholders of both pending actions against encumbered licenses and any suspension or revocation of a license subject to a lien. Specifically, section 561.65(3) provides that “such lienholder shall be notified in writing of the filing of an order to show cause as to why the license should not be suspended or revoked; and also the lienholder shall be furnished a copy of any order of suspension or revocation.” (Emphasis added). In other words, two separate notices are required: one when the agency institutes proceedings against the licensee and a second if the agency action against the licensee results in a suspension or revocation of the license. Respondent does not assert and no evidence was presented to demonstrate that Petitioner had knowledge of or participated in the cause for revocation of the license at issue in this proceeding, or that Petitioner would not otherwise be entitled to notice of the revocation proceeding. The holder of a recorded lien is entitled to notice because the lienholder has the right to enforce the lien against the licensee within 180 days after the entry of any order of revocation or suspension of the license. Section 561.65(3) specifies that “the 180 days within which to file for enforcement of the lien by the lienholder shall commence running from the date of the mailing of the copy of the order of revocation or suspension.” Thus, the 180-day period runs from when notice is sent to the lienholder, not from the entry of the final order of suspension or revocation. Once notice is provided to the lienholder, any enforcement of the lien is through foreclosure proceedings in circuit court. The process for foreclosure proceedings is outlined in section 561.65(5). Most importantly, both section 561.19(2) and section 561.65(1) provide that no revoked quota beverage license encumbered by a lien or security interest perfected in accordance with section 561.65 shall be issued until the 180-day period (from mailing of the suspension or revocation order) has elapsed or until such enforcement proceeding is final. Re-issuance Through Double Random Drawings Quota licenses may become available three ways: 1) when a dry county goes wet (i.e., a county that previously prohibited the sale of alcohol decides to allow it), three initial quota licenses are issued for the county; 2) when there are population increases in a county, an additional quota license is issued for every population increase of 7,500; and 3) when a quota license in a county has been revoked. When any of those instances occur, pursuant to the directive in section 561.19(2), quota licenses are issued through the use of a double random public drawing. While a revoked quota license may be reissued in a double random quota drawing, if a revoked quota license is encumbered by a perfected and recorded lien or security interest, as discussed previously, it may not be reissued until the 180-day period has elapsed or until enforcement/foreclosure proceedings are final. Damon Larry is currently the assistant bureau chief of licensing, and oversees the annual quota drawing. Each year, he runs a report of all revoked quota licenses and, if the revocation is final, determines whether the 180-day period has elapsed. Before a revoked quota license is placed in the double random drawing, there is communication between staff in different sections within the Department to determine if a license is eligible for inclusion in the quota drawing. The communications involve the quota drawing section, the licensing section, the administrative case unit, the Office of the General Counsel, and the lien section. During this process, DABT staff will determine whether there is a lien attached to the license and, if so, whether there was notice to the lienholder, and whether the 180 days has elapsed or foreclosure proceedings no longer remain pending. If all of these conditions have been met, the revoked license is placed in the quota drawing for reissuance under a new license number. The revoked license number is then deleted from the Department’s database. Petitioner’s Lien Against Alcoholic Beverage License No. 62-08383 Turning to the facts of this case, Daniel A. King, as debtor, executed and delivered a Demand Promissory Note in favor of Rebco on or about April 18, 1997, in the principal amount of $61,000, and simultaneously executed a security agreement in favor of Rebco, as the secured party, pledging license number 62-08383 (the License) as collateral for repayment of the sums due and owing under the Promissory Note. Rebco submitted the promissory note and security agreement to DABT for initial recordation as a lien against the License on or about May 1, 1997, within 90 days of the date of the creation of the lien, on forms approved by the Division. The forms clearly identified the parties and the obligation. DABT recorded the lien against the License effective May 8, 1997. If not timely renewed, the lien would expire on May 8, 2002. Rebco submitted a request to renew its existing lien against the License for recordation on or about November 7, 2001, within six months of expiration of the lien, on forms approved by the Division. The request for renewal was accompanied by the promissory note and security agreement, and the forms clearly identified the parties and the obligation. DABT recorded the lien renewal against the License effective November 7, 2001. If not timely renewed, the lien would expire on November 7, 2006. Rebco submitted a second request to renew its existing lien against the License for recordation on or about July 26, 2006, within six months of expiration of the lien, on forms approved by the Division. The request for renewal was accompanied by the promissory note and security agreement and the forms clearly identified the parties and the obligation. DABT recorded the lien renewal against the License effective August 1, 2006. If not timely renewed, the lien would expire on August 1, 2011. The License Revocation Proceedings On or about November 16, 2006, at a time when the lien was recorded in the records of DABT, DABT filed administrative charges against Daniel J. King, holder of the License, in Case number 2006-049240, alleging that the licensee failed to operate the License in accordance with section 561.29(1)(f). DABT was unable to achieve personal service on Mr. King, so it published notice of the administrative action in the St. Petersburg Times on May 2, 9, 16, and 23, 2007. The published notice did not identify Petitioner, and no evidence was presented to indicate that DABT sent a copy of the notice to Rebco. Rebco clearly had a recorded lien against the License when the disciplinary action was filed against the License. DABT did not notify Petitioner of the pending action. On or about June 22, 2007, after receiving no written defense in the disciplinary proceeding, DABT issued a Final Order revoking the License effective July 31, 2007. The Final Order of Revocation was not served on Rebco, the owner of the security interest in the License. Petitioner had a recorded lien against the License on file with DABT both when proceedings were instituted against the License and on the date of the entry of the Final Order of Revocation. Stephanie Coxwell works in the administrative case unit of DABT and has done so for at least the last 14 years. The administrative case unit is responsible for determining whether an alcoholic beverage license that is pending revocation or suspension is encumbered by a lien and for notifying any lienholder of the revocation or suspension of an encumbered license. DABT’s practice was to mail any lienholder notice of the license suspension or revocation, along with a copy of the final order, soon after entry of the final order. It is this mailing of the notice and final order that commences the 180 days referenced in section 561.65. For at least the last 14 years, DABT has used a form “notice to lienholder” to notify lienholders of the revocation or suspension of an alcoholic beverage license, accompanied by a copy of the final order revoking or suspending the license. The notification form is a public record maintained by DABT. It is this notification, and not the publication of the pending action, that provides notice to the lienholder. Internal correspondence from Ms. Coxwell within the licensure file for the License indicates that in December 2006, she requested a lien search with respect to the License. Ms. Coxwell was advised by return e-mail that Rebco had a recorded lien against the license. On or about March 21, 2007, Ms. Coxwell requested research for any bankruptcy proceedings affecting the License. She was again informed by intra-agency e-mail that Rebco had a recorded lien against the License. Ms. Coxwell replied by e-mail that she was aware that there was a lien, but that they would notify the lienholder of the administrative action “in the usual way.” However, Ms. Coxwell’s March 27 e-mail was sent three months before the final order revoking the license, not simultaneous to the Order. There is no record that notification was sent to Rebco, either at the time of the administrative action, or after issuance of the final order. Beverly Peebles works in Rebco’s corporate office located at 701 Tennessee River Drive, Muscle Shoals, Alabama 35661, and has done so since 1990. She is responsible for receiving, retaining, and disbursing any mail received by Rebco. Ms. Peebles testified regarding the process used to copy, scan into the company’s electronic database, and distribute any mail received by Rebco. Rebco did not receive any notice concerning the administrative action or the revocation of the License until Rebco received the letter denying the recordation of its lien renewal against the license in 2011. Rebco’s address was at all times on file with the DABT since the inception of the lien against the license in 1997. It is found that the DABT did not notify Rebco that there was an administrative action filed against the License, and did not notify Rebco of the Final Order of Revocation against the License. The licensure file contains all other expected documents from the first recordation of the lien in 1997 to the present. It does not include a copy of notice to Rebco of either the pending action or the Final Order of revocation. Moreover, both a letter dated August 19, 2011, to counsel for Rebco, as well as an e-mail dated March 21, 2007, from Ms. Coxwell, contain handwritten notes regarding the failure to send proper notification. The notes, which are clearly hearsay, are part of public records maintained in the normal course of business, and corroborate Ms. Peebles’ testimony that no notification was received. They also corroborate evidence of the absence of any record of notification to Rebco in DABT’s records of regularly-conducted activity. The August 19, 2011, letter contains a handwritten note at the top stating, “$61K lien no lien ltr sent,” and the e-mail dated March 21, 2007, referenced in paragraph 32, contains the following note: “are we the only group/people who check for current liens recorded before deleting the license? It was deleted on 5/4/2011. Lien was still recorded at that time.”2/ Respondent has presented no credible evidence to indicate that the notice was somehow sent despite the lack of any documentation to that effect contained in the DABT’s records. While the handwritten notes standing alone do not establish that no notice was sent, they do indicate that a question was raised internally regarding whether adequate notice was provided. Despite the failure to notify Rebco of the revocation of the License, the License was placed in the 2010 double random drawing held on March 10, 2011, at a time when a valid lien against the License was duly recorded. Only one license for Pinellas County was included in the drawing for that year, and no licenses for Pinellas County have been issued in a double random quota drawing since then. Shortly after the random drawing, the license number assigned to the License was removed from the Department’s system and a new number assigned to the license issued as a result of the drawing. While there is no direct testimony on the issue, it can be inferred that the purchaser of the new license received the license with no notice that there was any outstanding lien on the right to engage in the sale of alcoholic beverages in Pinellas County under the new license. While it is DABT’s practice to delete a revoked license number from its database, no evidence or statutory reference was presented to support the premise that there is a legal impediment to renewing an existing lien for a revoked license when no notice of the revocation was provided. Given the Department’s failure to notify Rebco of the revocation of the License, the 180-day period identified in section 560.65 never began to run. On or about July 6, 2011, Rebco timely submitted a third request to DABT to renew its existing lien against the License for recordation, within six months of expiration of the lien, on forms approved by the Division, which request was accompanied by the promissory note and security agreement. DABT notified Rebco by letter dated July 19, 2011, that it was unable to record the lien renewal because it was not submitted for recordation within 90 days of its creation. The July 19, 2011, notice of denial was issued based upon a review of the lien renewal request submitted to DABT, because the executed ABT6022 lien-recording form submitted with Rebco’s third renewal request mistakenly identified the effective date of the lien renewal as April 18, 1997, the date of the creation of the original lien. On or about July 25, 2011, Rebco submitted an amended form ABT6022 correcting the effective date for renewal of the lien as August 1, 2011. On August 3, 2011, DABT notified Rebco that it was unable to record the renewal of the lien against the License because “the alcoholic beverage license being pledged as collateral was revoked by the Division on July 31, 2007,” following service of a Notice of Action through publication in the St. Petersburg Times on May 2, 9, 16, and 23, 2007. No action taken by Rebco compromised the vitality of its recorded lien against the License. To the contrary, Rebco faithfully adhered to the recording requirements outlined by statute to record and renew its lien. DABT, however, failed to take the action required by section 561.65 to provide notice to Rebco of the pending action and subsequent revocation of the License. As a result, the 180- day period required by section 561.65 did not run before the License was placed in the quota drawing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order approving the renewal of Rebco’s lien in the License at issue in this case. DONE AND ENTERED this 17th day of July, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2015.
The Issue The issue presented here concerns the entitlement of Wiley Ulee Pridgen to transfer the beverage license which be owned to the entity, Adult World, Inc., a corporation.
Findings Of Fact Pursuant to an agreement entered into between the parties in the person of their counsel, made on September 8, 1980, the date for hearing in this cause, and in view of the written Stipulation which consummated the purposes of that agreement, the following facts are found: Wiley U. Pridgen was served with official notice that charges would be filed against him on December 10, 1979. On December 21, 1979, Wiley U. Pridgen filed an application with Respondent's Orlando District Office for transfer of ownership of his beverage license to Adult World, Inc., a corporation. On March 6, 1980, Wiley U. Pridgen was notified by the Director of the Division of Alcoholic Beverages and Tobacco that his application for transfer of ownership had been disapproved for the reason that administrative action is pending and undetermined against the subject licensee pursuant to Florida Statute 561.32. On March 17, 1980, a copy of the formal administrative charges were served on Wiley U. Pridgen. On August 8, 1980, Charles C. Adams, Hearing Officer, Division of Administrative Hearings, entered an order dismissing the instant Notice to Show Cause with leave to refile. On August 25, 1980, formal charges were served upon Petitioner in the form of a Notice to Show Cause after affording a hearing to Wiley U. Pridgen under Florida Statute 120.60(6).
Recommendation It is RECOMMENDED that the Petitioner, Adult World, Inc., d/b/a Strip World Topless Entertainment, be denied its request to have the ownership of License No. 58-1278, Series 2-COP, transferred from Wiley U. Pridgen to Adult World, Inc. DONE AND ENTERED this 7th day of October, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issues in these cases are whether Respondent, Club Manhattan Bar and Grill, LLC, d/b/a Club Manhattan Bar and Grill (Respondent), committed the acts alleged in the administrative complaints dated September 13, 2010, and December 1, 2010, and, if so, what disciplinary action, if any, should be taken against Respondent.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating persons holding alcoholic beverage licenses. § 561.02, Fla. Stat. Respondent is licensed under the Florida beverage law by the Department. Respondent holds a 4COP/SRX special restaurant license issued by the Department with Alcoholic Beverage License No. 68-04347. Ms. Stokes is the licensee of record for Respondent. Consequently, Respondent is subject to the Department's regulatory jurisdiction. Respondent's series 4COP/SRX is a special restaurant license that permits it to sell beer, wine, and liquor for consumption on the licensed premises. Additionally, the licensee must satisfy seating and record-keeping requirements and must comply with 51 percent of its gross sales being food and non- alcoholic beverages. See § 561.20(2)(a)4., Fla. Stat. Respondent's restaurant is located in Sarasota County, Florida, and, pursuant to the 4COP/SRX license, must have seating and capability to serve 150 customers at any one time. On August 5, 2010, Special Agent Flynn conducted an inspection of Respondent's business premises. He conducted the inspection based on complaints made to the Department that Respondent was operating as an after-hours bar, rather than a restaurant. At this initial inspection, which occurred at 2:30 p.m. on August 5, 2010, Special Agent Flynn found the restaurant did not have any customers or menus. Further, he noticed that the premises had seating for only 92 people and a large dance floor. Further, he observed that the walls had signs advertising drink specials and late-night parties. Special Agent Flynn met Ms. Stokes, Respondent's manager and holder of the license, and informed her that the beverage license required that Respondent be able to serve 150 customers at one time. Also, Special Agent Flynn requested the required business records concerning the purchase of alcoholic beverage invoices from the distributors for a 60-day proceeding period. Ms. Stokes did not have the requested records on the premises. On August 19, 2010, Special Agent Flynn sent Ms. Stokes a written request, requesting alcoholic purchase invoices for a 60-day period before August 19, 2010. The request allowed Ms. Stokes 14 days to compile the records and to provide the records to the Department. The record here showed by clear and convincing evidence that Respondent did not produce records for the audit period. On September 8, 2010, at approximately 3:00 p.m., Special Agent Flynn returned to Respondent's premises. Again, he found that Respondent did not have the required seating number and ability to serve 150 customers at one time. Special Agent Flynn offered credible testimony that, during the September 8, 2010, inspection, he found Respondent had only 106 available seats. Further, consistent with his inspection on August 5, 2010, Special Agent Flynn observed facts showing that Respondent was a late-night bar, as opposed to a restaurant. The evidence showed that on September 8, 2010, Special Agent Flynn observed that Respondent did not have any customers, menus, and very little food in its small kitchen. Special Agent Flynn, however, did observe that Respondent continued to have its large dance floor, disc jockey booth, advertised drink specials, and posters advertising late-night parties. Clearly, Respondent was being operated as a bar, rather than a restaurant as required by its license. At the September 8, 2010, inspection, Special Agent Flynn again requested Respondent's business records that he had previously requested for the 60-day time period before August 19, 2010. Ms. Stokes provided a few invoices for purchases of food and non-alcoholic beverages. These invoices were dated after the August 19, 2010, date that Special Agent Flynn had requested and did not cover the requested 60 days prior to the August 19, 2010, request. These records included food and beverage purchases by Respondent from retailers, but did not contain any records concerning the points of sale at the restaurant. Ms. Nadeau, an auditor for the Department, offered credible testimony concerning the Department's request for business records from Respondent for the audit period of April 1, 2010, through July 31, 2010. On August 27, 2010, Ms. Nadeau set up an audit request for the period of April 1, 2010, through July 31, 2010, based on information provided by Special Agent Flynn. The Department provided Ms. Stokes with an audit engagement letter that requested business records. Ms. Nadeau testified that on September 10, 2010, she was contacted by Ms. Stokes. Ms. Stokes informed Ms. Nadeau that Ms. Stokes had become the owner of the restaurant in June 2010 and that she did not have the required records. Ms. Nadeau informed Ms. Stokes to provide all the records requested in the audit engagement letter that Ms. Stokes had and to try to obtain the prior records from the previous managing member of Respondent. On September 22, 2010, Ms. Stokes mailed to the Department records she claimed met the audit period. The records consisted of guest checks for July and August 2010, which only showed food purchases and no alcoholic beverage purchases. Further, Ms. Nadeau found that the records were not reliable, because the records contained numerous personal items not related to the restaurant, such as baby wipes, cotton swabs, and boxer shorts. Consequently, the record clearly and convincingly shows that Respondent failed to provide the required business records for the audit period of April 1, 2010, through July 31, 2010. Next, based on Respondent's failure to provide any reliable records, the Department was unable to conduct an audit of the business. Records provided by Respondent indicated that the only sales that occurred on the premises were for food. However, the testimony showed that Respondent's business included the sale of alcohol and marketed the sale of alcoholic beverages for late-night parties. Mr. Torres, the senior auditor for the Department, credibly testified that he conducted an independent review of Ms. Nadeau's initial audit findings. Mr. Torres, who has been employed with the Department for 27 years, reviewed the records provided by Respondent. He credibly testified that Respondent's guest checks were very questionable because they showed all food sales, but no alcohol, which was not consistent with Special Agent Flynn's observations. The evidence further showed that Ms. Stokes became the managing member of Respondent in June 2010. Ms. Stokes provided the Department with a change of corporate officers and named herself as registered agent, rather than apply for a new license. This distinction would later become important because, as explained by Ms. Nadeau, in the Department's eyes, there is a continuation of ownership. Under a continuation of ownership, Ms. Stokes was required to have business records for the time period before she became the managing member of Respondent. Ms. Stokes credibly testified that she did not have any records before June 20, 2010; thus, Respondent was unable to provide records for the audit period. Ms. Stokes candidly admitted that her restaurant had been struggling financially, which is why she had worked to catering special events to draw foot traffic.
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 revoking Respondent's alcoholic beverage license and finding that Respondent violated: 1. Section 561.20(2)(a)4., within section 561.29(1)(a), on September 8, 2010, by failing to provide the required service area, seating, and equipment to serve 150 persons full-course meals at tables at one time as required by its license; 2. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), the audit period of April 1, 2010, through July 31, 2010, by not providing the requested business records; and 3. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), on September 8, 2010, by not providing the requested business records. It is further RECOMMENDED that the final order find that the Department did not prove by clear and convincing evidence that Respondent violated section 561.20(2)(a)4., within section 561.29(1)(a). DONE AND ENTERED this 23rd day of September, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2011.
The Issue Whether or not on or about the 14th day of May, 1976, Mary Lener Arnold, a licensed vendor, did have in her possession, permit or allow someone else to have unlawfully in their possession on Mary Lener Arnold's licensed premises, alcoholic beverages, to wit: 9 half-pints of Smirnoff Vodka, not authorized by law to be sold under her license, contrary to 562.02, F.S.
Findings Of Fact The Respondent, Mary Lener Arnold, t/a Buggs' Drive Inn, held on May 14, 1976 and now holds beverage license no. 50-2 series 1-COP with the State of Florida, Division of Beverage. This licensed premises is located on Main Street, Greenville, Florida. On May 14, 1976, a confidential informant with the Division of Beverage went to the licensed premise of the Respondent in Greenville, Florida and purchased a bottle of alcoholic beverage not permitted under a 1-COP license. This confidential informant was working for officer B.C. Maxwell of the State of Florida, Division of Beverage. Officer Maxwell along with other officers with the Division of Beverage and officers of the Madison County, Sheriff's office returned to the licensed premises on May 14, 1976 and in looking through the licensed premises found a black bag containing 9 half-pints of Smirnoff Vodka on the licensed premises. This Smirnoff Vodka was not permissible on the licensed premises under a 1-COP license. On the licensed premises at the time of the inspection was one Patsy Jackson Williams who indicated that she was in charge of the premises. The confidential informant who had purchased the bottle of alcoholic beverage indicated that his purchase had been made from the same Patsy Jackson Williams. The black bag with its contents of 9 half-pints of Smirnoff Vodka is Petitioner's Exhibit #2 admitted into evidence. The alcoholic beverage purchased by the confidential informant is Petitioner's Exhibit #4 admitted into evidence.
Recommendation It is recommended that the Respondent, Mary Lener Arnold have her beverage license suspended for a period of 30 days based upon the charge proven in the hearing. DONE and ENTERED this 22nd 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 Mary Lener Arnold t/a Buggs' Drive Inn Main Street Greenville, Florida
The Issue Whether respondent's alcoholic beverage license should be revoked for violating a stipulation stated on the record in a prior license revocation proceeding.
Findings Of Fact Respondent holds alcoholic beverage license no. 16-2337, Series 2-APS and owns and operates Hammer's Package Store, the licensed premises, at 3231-A West Broward Boulevard, Ft. Lauderdale, Florida. In 1981, DABT filed two administrative actions to revoke respondent's alcoholic beverage license pursuant to Section 561.29, Florida Statutes. The charges were, apparently, disputed and a hearing officer requested, since the cases were forwarded to the Division of Administrative Hearings for assignment of a hearing officer. Thereafter, on April 18, 1981, Hearing Officer Robert T. Benton, II, conducted a Section 120.57(1) hearing on the charges. At hearing, both parties were represented by counsel: DABT by James N. Watson, Jr., a staff attorney for the Department of Business Regulation; respondent by Ray Russell, whose address was 200 S. E. 6th Street, Ft. Lauderdale, Florida 33301. At the outset, counsel for both parties advised Hearing Officer Benton that they had reached "an agreement" (P-1, p. 3), thus obviating the need for a hearing on the charges. Counsel then recited, on the record, the terms of their settlement agreement: respondent was given 90-days in which its corporate entity could be sold, with the period beginning to run from March 19, 1981--the next day--and ending on June 16, 1981; when the corporate entity was sold or the 90-day period expired, whichever occurred first, respondent was to surrender its alcoholic beverage license to DABT for cancellation; respondent waived its right to an evidentiary hearing on the charges and to appeal any matters covered by the agreement; and, from the time the corporate entity was sold or the 90-day period for sale expired, no corporate officers, directors, or shareholders of respondent would again engage in the alcoholic beverage business, make any application for a beverage license, apply for transfer of a beverage license, or hold an interest in any business involved in the sale or distribution of alcoholic beverages. (DABT Ex. 1, p. 5-8). Without objection from respondent's counsel, DABT's counsel described the consent order (or settlement agreement) as "in the nature of a final administrative action and [respondent] acknowledges that its failure to abide by such would subject him to the provisions of Florida Statutes 120.69 (P-1, p. 6). Although this settlement agreement was effective and began to operate immediately (the 90-day period for sale commenced the next day) DABT's counsel contemplated that a written and signed consent order embracing the terms of the settlement agreement would be subsequently issued. Although such follow-up action was intended, it never occurred. DABT never issued a written order, consent or otherwise, embracing the terms of the settlement agreement. Hearing Officer Benton and, at least one party, thereafter relied on the settlement agreement. The hearing officer closed both Division of Administrative Hearings files, and DABT no longer prosecuted respondent under the pending charges. Since June 16, 1981, the expiration of the 90-day period provided in the agreement, respondent has continued to operate its licensed alcoholic beverage premises, has failed to sell its corporate entity, and has failed to surrender its alcoholic beverage license. Respondent has presented no evidence justifying or excusing its failure to surrender its alcoholic beverage license to DABT for cancellation on or before June 16, 1981. Neither does it seek to withdraw from or set aside the settlement agreement.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be revoked. DONE and ENTERED this 26th day of May, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 26th day of May, 1983.
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 The issue for consideration in this matter is whether the Respondent's 1 APS license 15-00386 should be disciplined because of the matters alleged in the Notice to Show Cause filed herein.
Findings Of Fact At all times pertinent to the allegations in issue here, the Division was the state agency responsible for the licensing of the sale of alcohol and alcoholic beverages in Florida. Respondent operated the S & D Food Market at 531 Blake Avenue, Cocoa. On August 27, 1991, SA Wylie, a member of the Division's Orlando office, was, along with several other Special Agents, including SA Felton, assisting the Florida Department of Law Enforcement to serve search warrants and search covered premises, including that of the Respondent. When he arrived at the Respondent's facility he asked the clerk on duty to show him the alcoholic beverage license for the store and determined it permitted only the sale of packaged beer for off-premises consumption. He conducted an inspection of the store to insure only beer was being sold in compliance with the license and discovered several bottles of wine in the cooler along with wine cooler and beer. These items were in the display section open to the public. Mr. Wylie went around back into the cooler and found more wine, and when he went into the store's back storage room, found cases of wine stacked up against the wall. When he saw this, he went back to the clerk and asked why wine was being sold when the license permitted only the sale of beer. The clerk claimed to know nothing about it. Wylie asked for the invoices for the wine purchases and the clerk went to get them. While waiting in the office, Mr. Wylie also saw several cartons of cigarettes which showed a Publix stamp on the end. The presence of these stamps on the cartons indicated to him that the cigarettes had been purchased at Publix and not from a wholesale distributor. He assumed the cigarettes were for resale, though all other cigarettes in the store were in the display rack out front. These cigarettes were legal. When the clerk came back with the invoices, Wylie also asked him for the purchase receipt for the cigarettes and the clerk went to get that, too. In the meantime, SA Felton arrived on the scene and Wylie turned over all the wine and the cartons of cigarettes to her. Felton inventoried the wine and determined there were in excess of 76 full cases of wine in addition to numerous loose bottles.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered in this case dismissing the allegation that Respondent, Edward Andre Jones, possessed cigarettes not purchased from a wholesale dealer, but finging him Guilty of the allegation of possessing unauthorized alcoholic beverages on the premises covered by 1 APS license 15- 00386; placing his license on probation for one year, and assessing an administrative fine of $1,000.00. RECOMMENDED in Tallahassee, Florida this 27th day of January, 1993. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1993. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Lane Vaughn, Esquire 2007 South Melbourne Court Melbourne, Florida 32901 Janet E. Ferris Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007
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
