99-003065 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Polpo Mario, Inc., D/B/A Polpo Mario Ristorante Status: Closed Recommended Order on Thursday, December 30, 1999.

Summary: By selling vodka to a special agent when his license only authorized the sale of beer and wine, Respondent violated the law; $750 fine imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 99-3065

)

POLPO MARIO, INC., d/b/a )

POLPO MARIO RISTORANTE, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on December 15,

1999, in Sarasota, Florida.

APPEARANCES

For Petitioner: Charles D. Peters, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Joseph Casadio, pro se

3131 Clark Road, Suite 103

Sarasota, Florida 34231

STATEMENT OF THE ISSUE

The issue is whether an administrative fine should be

imposed on Respondent for unlawfully selling "spirituous

beverages" on its licensed premises, as alleged in the

Administrative Action served by Petitioner on March 17, 1999.

PRELIMINARY STATEMENT

This matter began on March 17, 1999, when Petitioner,

Department of Business and Professional Regulation, Division of

Alcoholic Beverages and Tobacco, served an Administrative Action

against Respondent, Polpo Mario, Inc., doing business under the

name of Polpo Mario Ristorante, alleging that on February 24,

1999, one of Respondent's employees unlawfully sold "spirituous

beverages" on the licensed premises when its license authorized

only the sale of beer and wine. Respondent denied the allegation

and requested a formal hearing to contest the preliminary action.

The matter was referred by Petitioner to the Division of

Administrative Hearings on July 16, 1999, with a request that an

Administrative Law Judge be assigned to conduct a formal hearing.

By Notice of Hearing dated July 27, 1999, a final hearing

was scheduled on October 7, 1999, in Sarasota, Florida. At

Respondent's request, the matter was rescheduled to December 15,

1999, at the same location. On December 13, 1999, the case was

transferred from Administrative Law Judge Arnold H. Pollock to

the undersigned.

At the final hearing, Petitioner presented the testimony of

Elaine Norring, a licensing specialist; Samuel J. Funaro, a

special agent; and Eileen O'Shea, an auditor. Also, it offered

Petitioner's Exhibits 1-3 and 5. All exhibits were received in

evidence. Respondent was represented by, and presented the

tesimony of its president, Joseph Casadio. Also, it offered

Respondent's Composite Exhibit 1, which was received in evidence.

Finally, at Petitioner's request, the undersigned took official

notice of the statutes which govern this dispute, Rule 61A-2.022,

Florida Administrative Code, Respondent's request for a hearing,

and Respondent's answers to a Request for Admissions.

There is no transcript of the hearing. Proposed Findings of

Fact and Conclusions of Law were filed by Petitioner on

December 22, 1999, and Respondent filed a paper styled as Summary

of Hearing on December 28, 1999. Both have been considered by

the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. In this disciplinary action, Petitioner, Department of

Business and Professional Regulation, Division of Alcoholic

Beverages and Tobacco (Division), seeks to impose penal sanctions

on the license of Respondent, Polpo Mario, Inc., doing business

as Polpo Mario Ristorante, on the ground that on February 24,

1999, an employee of the establishment served a Division special

agent a shot of vodka and a shot glass containing a mixture of

vodka and amaretto, none of which could be lawfully sold under

Respondent's license. After this proceeding began, the

restaurant was voluntarily closed by the owner.

2. Respondent has denied the charge and requested a formal

hearing to contest this allegation. In his request for a

hearing, Respondent contended that the employee who served the

drinks was actually a bus boy and had no authority to wait on

customers; that the bus boy was pressured into making the sale;

that the employee was "slightly retarded"; and that the chef

occasionally used amaretto in preparing a special dessert.

Except for the latter assertion, none of these defenses was

established at the final hearing.

3. Respondent is subject to the regulatory jurisdiction of

the Division, having been issued license no. 68-01763, Series

2COP. That license allows Respondent to make sales of beer and

wine for consumption on the premises of its restaurant located at

3131 Clark Road, Sarasota, Florida. The license does not,

however, authorize the sale of "spirituous beverages," such as

vodka, whiskey, and liquors, which contain more than six percent

of alcohol by volume.

4. Besides the above license, Respondent also holds

licenses from the Division for three other restaurants, including

a Series 4COP, SRX license, which authorizes the sale of all

types of alcoholic beverages in conjunction with food sales.

This type of license has an annual fee of $1,820.00.

5. On November 6, 1998, a Division auditor, Eileen O'Shea

( O'Shea), performed a routine audit of Respondent's corporate

offices. Such audits are required to be performed at least once

every three years.

6. During the course of the audit, O'Shea examined various

invoices from liquor dealers, including one which suggested that

liquor may have been transferred from one of the restaurants

holding a Series 4COP, SRX license to Polpo Mario Ristorante.

O'Shea cautioned Respondent's president, Joseph Casadio

( Casadio), and his wife, that under a Series 2COP license, they

were not authorized to sell or have alcoholic beverages on the

licensed premises. She also gave them a copy of the state

statutes which contained this restriction, and O'Shea suggested

that if any liquor was kept in the kitchen for food prepration

purposes, that the bottle be marked with a "K." She further

advised them that if they intended to use alcoholic beverages for

preparing certain special dishes, they must obtain written

approval from the Division to do so. There is, however, no

statutory or rule authority for this requirement. Finally, she

referred her findings to a Division special agent.

7. Both Casadio and his wife acknowledged to O'Shea that

they now understood the requirements and that no laws were being

violated. Casadio also told her that he had once served

customers an after dinner expresso with Sambuca (a liquor)

without charge, but he no longer did so.

8. Around 6:15 p.m. on February 24, 1999, and presumably in

response to O'Shea's referral, Division special agent Samuel J.

Funaro ( Funaro) visited the licensed premises of Respondent for

the purpose of attempting to purchase spirituous beverages.

Funaro was greeted by Gerard Woel ( Woel), an employee who seated

Funaro at a table near the bar and handed him a menu. Besides

Woel, there were two other female waitresses on duty that

evening, including Kim Mitchell (Mitchell). None of these former

employees, or any others, testified at the final hearing;

however, their out-of-court statements have been treated as

admissions by employees of a party and therefore an exception to

the hearsay rule.

9. Although there were several special entrees shown on a

display board at the entrance to the restaurant, none were

desserts. Funaro ordered an Eggplant Parmigiana as his entree

and a bottle of Budweiser beer to drink. He also asked Woel for

a whiskey chaser to go with his beer. Woel departed and returned

from the kitchen a few minutes later with a shot glass containing

a clear liquid. The parties have stipulated that the liquid was

vodka. Woel remarked that the vodka came from a bottle kept by

the chef in the kitchen. By serving that drink, Respondent

exceeded the authority under its license.

10. At a later point in his meal, Funaro ordered a second

bottle of beer and another whiskey chaser. A few minutes later,

Woel returned with a shot glass containing a brownish colored

liquid and explained that it represented the last vodka in the

chef's bottle along with a small amount of amaretto, which was

the only other alcoholic beverage in the kitchen. Although

Funaro did not retain a sample of the drink, based on his

experience, he concluded that the shot glass did in fact contain

vodka and amaretto. By serving the drink, Respondent exceeded

the authority under its license.

11. Shortly before 8:00 p.m., Funaro completed his meal.

Woel was busy with other customers, so the bill was presented by

Mitchell, another waitress on duty. The bill totaled $17.91,

including tax, and besides the food charge, contained a charge

for one beer (even though two had been ordered) and an item for

$5.50 entitled "2-Open Food Lunch." As to the latter item,

Mitchell explained that this was the way liquor sales were rung

up on the cash register because the cash register did not have a

specific key for liquor sales.

12. On March 10, 1999, O'Shea and Funaro returned to

Respondent's restaurant for the purpose of conducting an

inspection of the premises. They found a bottle of Bols Amaretto

in the kitchen used for preparing desserts. At that time, the

chef on duty told them that after dinner drinks were served at

one time but the practice was discontinued. He also stated that

the previous chef had kept a bottle of vodka on the premises for

preparing a pasta sauce.

13. On March 16, 1999, Funaro met with Casadio and

explained the violations he had noted during his previous visit

and inspection. Casadio explained again that he had once given a

complimentary after dinner drink to patrons but discontinued that

practice after O'Shea had given him a verbal warning during her

audit. He also explained that the amaretto found in the kitchen

on the March 10 inspection was used to prepare desserts for

patrons.

14. In mitigation, Casadio established that he had been in

the restaurant business for some 20 years, and there is no

evidence that he has ever been charged with, or convicted of,

violating any Division regulations or state law. He pointed out

that he would never risk his license for the price of two drinks

($5.50), that he has always attempted to comply with all relevant

requirements, and that he immediately fired Woel after learning

of his actions. Given the extremely small amount of liquor

involved, the minimal amounts kept on hand in the kitchen for

cooking purposes, and the fact that Respondent was obviously not

engaged in this conduct on a widespread, continuing basis, a

reduction in the fine is appropriate.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

16. As the party seeking to impose penal sanctions on

Respondent's license, Petitioner bears the burden of proving the

allegations in the charging document by clear and convincing

evidence. See , e.g. , Pic N' Save Central Fla., Inc. v. Dep't of

Bus. And Prof. Reg., Div. of Alco. Bev. and Tobacco , 601 So. 2d

245, 249 (Fla. 1st DCA 1992).

17. The Administrative Action alleges that Respondent

violated Section 562.12(1), Florida Statutes (1997), by selling

alcoholic beverages not permitted by its license.

18. By clear and convincing evidence, Petitioner has

established that Respondent has violated the cited statute, as

alleged in the Administrative Action. This being so, it is

necessary to determine an appropriate penalty.

19. Rule 61A-2.022(11), Florida Administative Code,

prescribes the penalty guidelines to be imposed upon alcoholic

beverage licensees. For a first-time violation of Section

562.12(1), Florida Statutes, which is the case here, the rule

calls for a $500.00 fine or an amount equal to the correct

license fee, whichever is greater. Here, the correct license fee

would be $1,820.00. Finally, unlike those adopted by most other

licensing agencies, the Division's rule does not identify any

aggravating and mitigating considerations which may be taken into

account in assessing a penalty. However, for the reasons

expressed in Finding of Fact 14, a reduction in the suggested

penalty guideline is appropriate.

20. In its proposed order, Petitioner suggests that the

imposition of a fine totaling $1,820.00 is warranted, since that

amount is called for by the rule. Given the mitigating factors

discussed above, however, a more appropriate fine is $750.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Division of Alcoholic Beverages and

Tobacco enter a final order determining that Respondent has

violated Section 562.12(1), Florida Statutes, as charged in the

Administrative Action, and that an administrative fine in the

amount of $750.00 be imposed.

DONE AND ENTERED this 30th day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

DO NALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of December, 1999.

COPIES FURNISHED:

Joseph Martelli, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Charles D. Peters, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Joseph Casadio

3131 Clark Road, Suite 103

Sarasota, Florida 34231

Barbara D. Auger, 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.