01-001117 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Skyline Caterers Corporation, D/B/A Cracker Barrel Status: Closed Recommended Order on Tuesday, July 24, 2001.

Summary: Petitioner falsely swore on application that he had not been arrested within the last 15 years. Certified police reports revealed two prior arrests. Recommend revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 01-1117

)

SKYLINE CATERERS CORPORATION, )

d/b/a CRACKER BARREL, )

)

Respondent. )

______ )

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative

Hearings, by its duly-appointed Administrative Law Judge,

Fred L. Buckine, held a formal hearing in this case on June 19,

2001, at Sarasota, Florida.

APPEARANCES

For Petitioner : Michael Martinez, Esquire

Division of Alcoholic

Beverages and Tobacco

Department of Business and

Professional Regulations,

1940 No rth Monroe Street, Suite 60

Tallahassee, Florida 32399-1007

For Respondent : No appearance

STATEMENT OF THE ISSUE

Whether Timothy John O'Dea, on behalf of Respondent,

Skyline Caterers Corporation, d/b/a Cracker Barrel, willingly

and knowingly falsely swore to having no criminal charges filed

against him within the past 15 years on his Alcoholic Beverage

and Tobacco license application on September 1, 1999.

PRELIMINARY STATEMENT

On March 21, 2001, the Agency (DABT) referred the Petition

for Administrative Action and Respondent's Request for Hearing

to the Division of Administrative Hearings to conduct a Section

120.57(1) hearing. By the petition, DABT is attempting to

revoke, suspend, or otherwise discipline Respondent's license.

On March 29, 2001, Petitioner filed a Unilateral Response

to Initial Order. On March 30, 2001, an Order of Pre-Hearing

Instructions and a Notice of Hearing, with the hearing scheduled

for May 16, 2001, were issued.

On May 5, 2001, Petitio ner filed its Prehearing

Stipulation. On May 11, 2001, Respondent, by letter to the

undersigned, requested a continuance to retain counsel. On

May 14, 2001, an Order Granting Continuance was issued,

rescheduling the final hearing for June 19, 2001, at 9:00 a.m.,

Judicial Center, Courtroom 7, at Sarasota, Florida. It is noted

that all orders and notices of hearing issued in this case were

furnished to and received by : Michael Martinez, Esquire, for

Petitioner; Captain Allen F. Nash, for the Department; and

James C. Rowe, Esquire, for Respondent. On July 3, 2001,

Timothy John O'Dea faxed a letter to the undersigned

maintaining, first, that James Rowe did not represent him.

Second, he alledged that he did not receive the order granting

his requested continuance and rescheduling the final hearing.

Finally, he requested that the hearing be reopened for his

participation. Attorney Rowe's letter of July 3, 2001,

maintained that he did not represent O'Dea and that he had not

entered a Notice of Appearance on his behalf. Mr. Rowe

expressed belief that O'Dea had notice of the final hearing.

This confusion between Respondent and Attorney Rowe results

solely from O'Dea's failure to act. Accordingly, O'Dea's late-

written request to reopen the hearing is, herewith, denied.

The final hearing was delayed for 30 minutes to wait for

the arrival of Respondent. At 9:30 a.m., the hearing proceeded

without the participation of Respondent who failed to appear.

Petitioner presented the testimony of Suzanne Castro,

Special Agent, DABT, and offered five exhibits (1-5) each of

which was accepted in evidence. Petitioner's counsel's request

for Official Recognition of Rule 61A-2.022, Florida

Administrative Code, was granted.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional

Regulations, Division of Alcoholic Beverages and Tobacco, is the

Agency charged with the responsibility of administrating and

enforcing the beverage laws of the State. Chapters 559-568

Florida Statutes.

2. At all times material to this proceeding, Respondent,

Skyline Caters Corporation, d/b/a Cracker Barrel, Timothy John

O'Dea, President, operated a licensed restaurant-catering

business located at 7984 North Tamiami Trail, Sarasota,

Florida 34243.

3. At all times material to this proceeding, Respondent

applied for and was holding Beverage License Number 51-00228,

Series 2APS, package sales only of beer and wine (and other

alcoholic beverages under 6 percent alcohol by volume) and

51-02385 tobacco.

4. On or about September 1, 1999, Timothy John O'Dea, on

behalf of Respondent, completed a License/Permit application,

Form ABT 4000-001L. On page four of the application, under oath

or affirmation, Mr. O'Dea answered "NO" to the question have you

had any criminal charges filed against you within the past

15 years.

5. Special Agent Suzanne Castro, testimony proved that the

criminal charges portion of the Alcoholic Beverage License

Application, that asks whether Respondent has any criminal

charges filed against him, is used in determining applicant's

initial eligibility for the requested license.

6. According to Special Agent Castro, reliance upon the

sworn information provided by Respondent was the basis upon

which the Agency issued to Timothy John O'Dea the herein-

referred to license.

7. In completing the approval process, DABT's routine and

subsequent investigation revealed that Timothy John O'Dea had

been arrested and charged with thief of services by the Passaic,

New Jersey, Police Department on January 18, 1995. The Bergen,

New Jersey, Police Department, on August 3, 1995, arrested

Respondent a second time on the charge of thief of services.

The dispositions of the arrests are unknown. Presently, there

are two outstanding New Jersey arrest warrants for Timothy John

O'Dea.

8. Timothy John O'Dea, willingly and knowingly, falsely

swore, under oath or affirmation, of having no criminal charges

filed against him within the 15 years prior to September 1,

1999.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

10. Section 559.791, Florida Statutes, provides that:

Any license issued by the Department of

Business and Professional Regulation which

is issued or renewed in response to an

application upon which the person signing

under oath or affirmation has falsely sworn

to a material statement, including, but not

limited to, the names and addresses of the

owners or managers of the licensee or

applicant, shall be subject to denial of the

application or suspension of revocation of

the license, and the person falsely swearing

shall be subject to any other penalties

provided by law.

11. Timothy John O'Dea falsely swore that he had not been

charged with a criminal offense within the 15 years prior to his

completion of the license application. At the time of

completing his license application, O'Dea knew he had been

arrested on two separate occasions in New Jersey and he knew

those arrests had not been disposed of by the court. O'Dea knew

or should have known there were warrants outstanding for his

arrest. Accordingly, Timothy John O'Dea's license shall be

subject to denial, suspension, or revocation.

12. Rule 61A-2.002, Florida Administrative Code, Penalty

Guidelines, calls for a revocation of the license of a

Respondent for a first occurrence of a violation of

Section 559.791, Florida Statutes. Timothy John O'Dea's first

violation of this statute requires a revocation of the license

issued to him by DABT.

13. The Department is statutorily empowered to suspend or

revoke an alcoholic beverage license, such as the one held by

Respondent, Skyline Caterers Corporation, d/b/a Cracker Barrel,

based upon any of the grounds enumerated in

Section 561.29(1)(a) and (g), Florida Statutes, which in

pertinent part provides:

(1 ) The Division is given full power and

authority to revoke or suspend the license

of any person holding a license under the

Beverage Law, when it is determined or found

by the division upon sufficient cause

appearing of:

(a ) Violation by the licensee or its

agents, officers, servants, or employees, on

the license premises, or elsewhere while in

the scope of employment, of any the laws of

this state. . . .

* * *

(g ) A determination that any person

required to be qualified by the division as

condition for the issuance of the license is

not qualified.

14. The DABT has shown by clear and convincing evidence

that Timothy John O'Dea, on behalf of Respondent, Skyline

Caterers Corporation, d/b/a Cracker Barrel, personally violated

Section 559.791, Florida Statutes, when he knowingly and

willingly falsified his prior arrest record on his license

application.

15. Based on the above, DABT shall revoke the license

issued to Timothy John O'Dea.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of

Law, and review of the penalty guidelines in Rule 61A.2-022,

Florida Administrative Code, it is RECOMMENDED that the

Department of Business and Professional Regulation enter a final

order revoking license numbered 51-00228, Series 2APS, issued to

Timothy John O'Dea.

DONE AND ENTERED this 24th day of July 2001, in

Tallahassee, Leon County, Florida.

___________________________________

FRED L. BUCKINE

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of July, 2001.

COPIES FURNISHED :

Michael Martinez, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-1007

Lt. David Merrill

Department of Business and

Professional Regulation

1748 Independence Boulevard

Building E, Suite 4

Sarasota, Florida 34234

Timothy John O'Dea

Cracker Barrell

7984 North Tamiami Trail

Sarasota, Florida 34243

Richard Turner, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order must be filed with the agency that

will issue the Final Order in this case.