02-000562 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Manos, Inc., D/B/A Sea Port A.B.T. Status: Closed Recommended Order on Friday, May 24, 2002.

Summary: Department should revoke license of licensee who failed to pay fine required by final order that was upheld on appeal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petiti oner, )

)

vs. ) Case No. 02 - 0562

)

MANOS, INC., d/b/a SEA PORT, )

)

Re spondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on April 4, 2002, in

Titusville, Florida, on behalf of the Division of

A dministrative Hearings (DOAH).

APPEARANCES

For Petitioner: Chad D. Heckman, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1 940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: (No Appearance)

STATEMENT OF THE ISSUE

The issue presented is whether Respondent violated the

Final Order of Petitioner by failing to pay $1,250 to

Pet itioner on or before the expiration of 30 days after the

entry of the Final Order.

PRELIMINARY STATEMENT

Petitioner seeks enforcement of a Final Order previously

entered against Respondent. Respondent timely requested an

administrative hearing.

At t he hearing, Petitioner presented the testimony of one

witness and submitted three exhibits for admission in

evidence. Respondent did not appear and did not otherwise

submit any evidence in the proceeding.

The identity of the witness and exhibits, and th e rulings

regarding each, are set forth in the record of the hearing.

Neither party requested a transcript of the hearing.

Petitioner timely filed its Proposed Recommended Order ("PRO")

on May 10, 2002. Respondent did not file a PRO.

FINDINGS OF FACT

1 . Petitioner is the state agency responsible for

regulating the sale of alcoholic beverages. Respondent is

licensed to sell alcoholic beverages pursuant to license

number 15 - 02311, Series 4COP SRX. The licensed premises are

located at 680 George J. King Boulevard, Port Canaveral,

Florida, 32920.

2. On October 2, 2000, Petitioner entered a Final Order

that required Respondent to pay an administrative fine of

$1,250 within 30 days of the date of entry of the order.

Respondent appealed the Final Order to the First District

Court of Appeal. The First District Court of Appeal upheld

the Final Order. Respondent failed to pay any portion of the

administrative fine.

CONCLUSIONS OF LAW

3. DOAH has jurisdiction over the subject matter and

parties. Section 120.569 and 120.57, Florida Statutes (2001).

DOAH provided the parties with adequate notice of the

administrative hearing. (All section references are to

Florida Statutes (2001) unless otherwise stated.)

4. Petitioner has the burden of proof in this

proceeding. Petitioner must show by clear and convincing

evidence that Respondent committed the acts alleged in the

Administrative Action and the reasonableness of any penalty to

be imposed. Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987). Petitioner satisfied its burden of proof.

5. Section 561.29(1) provides, in relevant part, that

Petitioner may revoke Respondent's license upon a showing of:

(k) Failure by the holder of any license

issued under the Beverage Law to comply

with a stipulation, conse nt order, or final

order.

6. Florida Administrative Code Rule 61A - 2.022(8)

provides:

Licensees or permitees who violate the

accepted stipulation agreement or final

order shall be issued a new administrative

action under the same case number for

failing to comply with the stipulation or

final order which will be considered a

separate violation of state law and the

penalty for the violation will double.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMEND ED that Petitioner enter a Final Order finding

Respondent guilty of violating Section 561.29; imposing an

administrative fine of $2,500, pursuant to Rule 61A - 2.022(8);

and permanently revoking alcoholic beverage license number 15 -

02311, Series 4COP SRX.

D ONE AND ENTERED this 24th day of May, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of May, 2002.

COPIES FURNISHED:

Richard Tur ner, Director

Division of Alcoholic Beverages & Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Hardy L. Roberts, III, General Counsel

Department of Business and

P rofessional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Chad D. Heckman, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

R aymond J. Cascella

Manos Inc., d/b/a Sea Port Restaurant

680 George J. King Boulevard

Port Canaveral, Florida 32920

Capt. German Garzon

Department of Business and

Professional Regulation

400 West Robinson Street, Room 709

North Tower, Hurston Building

Orlando, Florida 32801

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 w ill issue the final order in this case.