97-001691 Division Of Alcoholic Beverages And Tobacco vs. Sunny South Lodge No. 671 Ibpoe, D/B/A Sunny South Lodge No. 671 Ibpoe Status: Closed Recommended Order on Thursday, October 23, 1997.

Summary: Club repeatedly sold alcoholic drinks to investigator who was not a member or the guest of a member. Revocation recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, DIVISION )

OF ALCOHOLIC BEVERAGES AND )

TOBACCO , )

)

Petitioner , )

)

vs. ) Case No. 97-1691

)

SUNNY SOUTH LODGE NO. 671 IBPOE , )

d/b/a SUNNY SOUTH LODGE NO. 671 )

IBPOE , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on September 25, 1997, at West Palm Beach, Florida, before

Claude B. Arrin gton, a duly designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner : James D. Martin, Esquire

Department of Business and Professional

Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent : Sammie L. Joseph

President and Exalted Ruler

Sunny South Lodge No. 671

Post Office Box 1425

Delray Beach, Florida 33444

STATEMENT OF THE ISSUES

Whether Respondent violated Section 562.12(1), Florida

Statutes, by selling alcoholic beverages in a manner not

permitted by its license and, if so, the penalties that should be

imposed.

PRELIMINARY STATEMENT

Respondent is an Elks Club that holds an alcoholic beverage

club license, which authorizes it to sell alcoholic beverages to

club members and to nonresident guests. No other sales are

permitted under that license.

On January 29, 1997, Petitioner filed a two-count

Administrative Action against Respondent that alleged certain

facts pertaining to sales of alcoholic beverages on December 20,

1996, and on January 10, 1997. Based on those facts, Petitioner

alleged that Respondent made unauthorized sales of alcoholic

beverages, thereby violating the provisions of Section 562.12(1),

Florida Statutes. Respondent thereafter timely requested a

formal hearing to challenge the alleged violations; the matter

was referred to the Division of Administrative Hearings; and this

proceeding followed.

At the formal hearing, Petitioner presented the testimony of

Special Agent Johnnie Wilson and of Captain Debbie Beck. Both of

these witnesses are employees of the Petitioner. In addition,

Petitioner presented one composite exhibit, which was accepted

into evidence. Respondent presented the testimony of Sammie L.

Joseph, Willie Lang, and Clarence Patrick. All three witnesses

are members of the Respondent. At the time of the formal

hearing, Mr. Joseph served the club as its President and Exalted

Ruler. Respondent presented no exhibits. Respondent did not

dispute the underlying facts of this proceeding, but appeared to

ask that its license not be revoked.

No transcript of the proceedings has been filed. The

Petitioner filed a proposed recommended order, which has been

duly considered by the undersigned in the preparation of this

Recommended Order. Respondent did not file a post-hearing

submittal.

FINDINGS OF FACT

1. The Respondent, Sunny South Lodge, No. 671, holds

license number 60-000784, series 11-C, authorizing it to sell

alcoholic beverages on the premises of Sunny South Lodge No. 671,

located at 23 Southwest 9th Avenue, Delray Beach County, Florida

(the licensed premises). At the time of the formal hearing,

Sammie L. Joseph was the President and Exalted Ruler of Sunny

South Lodge No. 671.

2. Based on a complaint from the Delray Beach Police

Department, Petitioner initiated an investigation on November 8,

1996, to determine whether Respondent was selling alcoholic

beverages in a manner not permitted by its license.

3. On December 20, 1996, Johnnie Wilson, a Special Agent

employed by Petitioner, went to the licensed premises to

investigate alcoholic beverage sales to nonmembers. Agent Wilson

entered the premises and paid a $3.00 entrance fee. When he paid

this fee, someone stamped his hand with a mark that was not

legible. The stamp was to identify patrons who had paid the

cover charge. Agent Wilson was not a member of the club or a

guest of any member of the club. At no time did Agent Wilson

represent himself as being a member of the club or as being the

guest of a member. Agent Wilson purchased from a bartender

inside the premises two alcoholic beverage drinks, each

containing Tanqueray gin. Agent Wilson paid $4.00 for each

drink. No one, including the bartenders inside the premises,

asked Agent Wilson whether he was a member of the club or the

guest of a member.

4. On January 10, 1997, Special Agent Wilson returned to

the licensed premises as part of his investigation. Agent Wilson

entered the premises, paid a $2.00 entrance fee, and signed a

fictitious name in a spiral notebook. Agent Wilson was not a

member of the club or a guest of any member of the club. At no

time did Agent Wilson represent himself as being a member of the

club or as being the guest of a member. Agent Wilson purchased

from a bartender inside the premises two alcoholic beverage

drinks, each containing Tanqueray gin. Agent Wilson paid $4.00

for each drink. No one, including the bartenders inside the

premises, asked Agent Wilson whether he was a member of the club

or the guest of a member.

5. Respondent holds an alcoholic beverage club license

issued pursuant to Section 565.02(4), Florida Statutes, which

authorizes the club to sell alcoholic beverages only to members

and nonresident guests.

6. Respondent has had three prior administrative actions

filed against its alcoholic beverage license for violation of

Section 562.12(1), Florida Statutes, in 1994, 1995, and 1996.

All three prior administrative actions were settled through the

payment of a civil penalty.

7. The Division has standard penalty guidelines for

violations of the alcoholic beverage law which are set forth in

Rule 61A-2.022, Florida Administrative Code. The Division's

standard penalty for a fourth occurrence violation of Section

562.12(1), Florida Statutes, is revocation of licensure.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

of the parties to and the subject of this proceeding. Section

120.57(1), Florida Statutes.

9. Section 562.12(1), Florida Statutes (1995), provides as

follows:

It is unlawful for any person to sell

alcoholic beverages without a license, and it

is unlawful for any licensee to sell

alcoholic beverages except as permitted by

his license, or to sell such beverages in any

manner except that permitted by his license;

and any licensee or other person who keeps or

possesses alcoholic beverages not permitted

to be sold by his license, or not permitted

to be sold without a license, with intent to

sell or dispose of same unlawfully, or who

keeps and maintains a place where alcoholic

beverages are sold unlawfully, is guilty of a

misdemeanor of the second degree, punishable

as provided in s. 775.082 or s. 775.083.

10. Section 565.02(4), Florida Statutes, provides in

pertinent part:

Persons associated together as a chartered

or incorporated club, . . . shall before

serving or distributing to its members or

non-resident guests the beverages defined

herein, . . . pay an annual state license tax

of $ 400. . . . The payment of such club

license tax shall authorize the service and

distribution to members and nonresident

guests of the club only, . . . and any

officer, member, or employee of any licensed

club who sells or distributes or serves any

such beverages to any other person other than

a member or nonresident guest of such club

for money or other value shall be deemed

guilty of selling such beverages without a

license and shall be punished as provided by

law.

11. Rule 61A-3.019, Florida Administrative Code, provides

in part:

All clubs licensed under the beverage law

must adhere to the following regulations:

(1 ) Alcoholic beverages may be served only

to bona fide club members or to their guests.

The payment for such service and distribution

must be made only by bona fide club members.

12. Section 561.29(1), Florida Statutes, provides, in

pertinent part, as follows:

(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 his or

its agents, officials, servants, or

employees, on the licensed premises, or

elsewhere while in the scope of employment,

of any of the laws of this state or of the

United States.

13. Rule 61A-2.022, Florida Administrative Code, sets forth

the penalty guidelines for the Division of Alcoholic Beverages

and Tobacco. The standard penalty for a fourth violation of

Section 562.12, Florida Statutes, is revocation of licensure.

14. Petitioner established by clear and convincing evidence

that Respondent violated the provisions of Section 562.12(1),

Florida Statutes, as alleged in the Administrative Action. In

making the recommendation that follows, the undersigned has

considered that Respondent has repeatedly made illegal sales

under its license. The undersigned has also carefully considered

the testimony of the three witnesses who testified on behalf of

the Respondent, and has concluded that their testimony is

insufficient to mitigate the pertinent disciplinary guidelines. 1

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent's alcoholic beverage

license number 60-00784, series 11-C, be revoked.

DONE AND ENTERED this 23rd day of October, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative H earings

this 23rd day of October, 1997

ENDNOTE

1/ Mr. Joseph testified that he is now in control of the

Respondent and will institute controls to prevent future

violations. Mr. Joseph also testified that the Respondent's

liquor license is used to generate funds that are used to benefit

the community. Mr. Joseph argued that the loss of the liquor

license will have a devastating impact on the Respondent and on

the community. While Respondent's contributions to the community

are to be commended, those contributions do not excuse or

mitigate these repeated violations of the beverage laws.

Mr. Lang testified that he was of the opinion that the entire

investigation was instigated by a neighboring bar. It was not

clear why that alleged fact should mitigate the penalty.

Mr. Patrick testified that Respondent was being discriminated

against based on race. Mr. Patrick's observations were

insufficient to establish his allegations of racial

discrimination.

COPIES FURNISHED:

James D. Martin, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Mr. Sammie L. Joseph

Sunny South Lodge No. 671

Post Office Box 1425

Delray Beach, Florida 33444

Captain Debbie Beck

District Supervisor

400 North Congress Avenue, No. 150

West Palm Beach, Florida 33401

Richard Boyd, Director

Division of Alcoholic Beverages

and Tobacco

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

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 should be filed with the agency that will

issue the final order in this case.