05-001236 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Ran D Vou Cafe, Inc., D/B/A Ran D Vou Cafe Status: Closed Recommended Order on Monday, April 24, 2006.

Summary: Respondent failed to meet the requirements of its Special Restaurant (SRX) license and failed to maintain records. Recommend revocation of its SRX license for five years.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1236

)

RAN D VOU CAFÉ, INC., d/b/a RAN )

D VOU CAFÉ, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

on June 22, 2005, by video teleconference with connecting sites

in Lauderdale Lakes and Tallahassee, Florida, before Errol H.

Powell, a des ignated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

Northwood Centre, Sui te 6

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Mary Fernand, pro se

1200 Northwest 47th Avenue

Lauderhill, Florida 33313

STATEMENT OF THE ISSUE

The iss ue for determination is whether Respondent committed

the offenses set forth in the Administrative Action and, if so,

what action should be taken.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Division of Alcoholic Beverages and Tobacco (DABT) issued a two -

count Administrative Action against Ran D Vou Café, d/b/a Ran D

Vou Café (Café) on August 18, 2004. 1 The Administrative Action

charged Café with the following: Count 1 -- failing, during the

period from December 18, 2003 thr ough March 31, 2004, to derive

at least 51 percent of its gross revenue from sales of food and

non - alcoholic beverages as required to qualify for its license

in violation of Section 561.20(2)(a), Florida Statutes, within

Section 561.29(1)(a), Florida Statu tes; and Count 2 -- failing,

during the period from December 18, 2003 through March 31, 2004,

to maintain records of all purchases and other acquisitions of

alcoholic beverages, in violation of Section 561.55(3)(b),

Florida Statutes, within Section 561.29(1) (a), Florida Statutes.

Café disputed the material allegations of fact in the

Administrative Action and requested a hearing. On April 6,

2005, this matter was referred to the Division of Administrative

Hearings.

At hearing, DABT presented the testimony o f three witnesses

and entered five exhibits (Petitioner’s Exhibits numbered 1 - 3

and 6 - 7) into evidence. The undersigned reserved ruling on two

exhibits (Petitioner's Exhibits numbered 4 and 5), leaving the

record open for two weeks to permit DABT to provi de affidavits

that the exhibits were the documents provided by Café to DABT. 2

Subsequently, the undersigned issued an order admitting into

evidence Petitioner's Exhibits 4 and 5. Also, at hearing, the

owner of Café testified on behalf of Café and no exhi bits were

entered into evidence on behalf of Café. Official recognition

was taken of Chapter 561, Florida Statutes, and Florida

Administrative Code Chapter 61A.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing p ost - hearing submissions was

set for more than ten days following the filing of the

transcript. The Transcript, consisting of one volume, was filed

on July 1, 2005. Subsequently, Café obtained counsel and its

counsel filed a Notice of Appearance and an Un opposed Motion to

Extend Time to Submit Proposed Recommended Order; the motion was

granted. However, prior to the due date of Café's post - hearing

submission, Café's counsel filed an Unopposed Motion to Withdraw

as Counsel and the motion was granted. Anot her order granting

Café an extension of time to file its post - hearing submission

was issued. Afterwards, Café again requested an extension of

time to which DABT did not file a response, having been notified

by a Notice of Ex - Parte Communication, and the r equest was

granted. Later, Café filed yet another request for an extension

of time to which DABT did not object, having been notified by a

Notice of Ex - Parte Communication, and the request was granted.

Prior to the due date for the filing of Café's post - h earing

submission, Café filed a notice on January 5, 2006, indicating

that it desired to relinquish its license and close this matter

and that it would be contacting DABT to accomplish this

finalization. Based upon the representation of Café, no action

wa s taken on this matter. Not having received a pleading

requesting the closure of this matter, the undersigned issued an

order on February 6, 2006, requiring the parties, no later than

February 17, 2006, to advise the undersigned as to whether this

matter should be closed. DABT advised the undersigned that,

even though it had discussed this matter with Café, Café had

offered no action as to its license, and DABT requested the

undersigned to issue a recommended order. Café did not file a

response to the or der issued on February 6, 2006.

Only DABT filed a post - hearing submission, which has been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Café was a restaurant,

serving full course meals, and w as located at 1599 North State

Road 7, Lauderhill, Florida.

2. At all times material hereto, the sole owner of Café

was Mary Fernand.

3. On December 18, 2003, Café, through Ms. Fernand, made

application for a license from DABT. The type of license

appli ed for was a retail alcoholic beverage license, in

particular a special alcoholic beverage license, allowing it to

purchase and sell alcoholic beverages. In a section of the

application, "SECTION VIII - SPECIAL LICENSE REQUIREMENTS,"

Ms. Fernand was notifie d, among other things, that the "Special

Alcoholic Beverage License" was "issued pursuant to

561.20(2)(b), Florida Statute [sic] or Special Act and as such

we acknowledge the following requirements must be met and

maintained: ... DERIVE 51 % OF GROSS REVEN UE FROM FOOD AND NON -

ALCOHOLIC BEVERAGES. SERVICE OF FULL COURSE MEALS MUST BE

AVAILABLE AT ALL TIMES ALCOHOLIC BEVERAGES ARE BEING SERVED."

As the person completing the application, Ms. Fernand was

required to read, initial, and date Section VIII.

4. A temporary special alcoholic license was issued by

DABT to Café on December 18, 2003. The application was approved

by DABT on December 19, 2003, and, subsequently, a permanent

special alcoholic license was issued by DABT.

5. DABT issued Café license nu mber BEV16 - 17022 4 - COP SRX.

The license was held through Ms. Fernand. As a result of having

been issued such a license by DABT , Café was and is subject to

the regulatory jurisdiction of DABT.

6. DABT conducts periodic audits of all restaurants

holding a special SRX license to make sure that the restaurants

are complying with the special license requirements. As part of

this audit process, special agents from DABT, among other

things, conduct announced visits, as well as undercover visits,

at the restaur ants and request the licensee to submit all

necessary records for the audit.

7. A SRX license holder has a continuing requirement to

derive at least 51 percent of its gross revenue from sales of

food and non - alcoholic beverages.

8. DABT places the burden upon the licensee to show

compliance with the SRX license requirements. Furthermore, DABT

requires the licensee to keep clear, legible records in English

and to submit such records if requested by one of its agents.

9. When DABT requests the licensee to produce the records

to establish compliance with the SRX license requirements, but

the licensee fails to show compliance through the requested

records, DABT determines that the licensee was not meeting the

requirements to operate with the SRX license.

1 0. The proof that DABT considers to establish compliance

include monthly sales and purchase records of food and non -

alcoholic beverages and sales and purchase records of alcoholic

beverages, guest checks, z - tapes, monthly income statements

(showing separa tely the food and non - alcoholic beverage sales),

and sales of alcoholic beverages.

11. On July 19, 2004, DABT's Special Agent Trenesa Davis

visited Café to request Café to produce the records necessary

for an audit under the SRX license. She found Café c losed and

locked.

12. Special Agent Davis obtained Ms. Fernand's telephone

number and contacted her that same day. Special Agent Davis

informed Ms. Fernand of the records needed for the audit, and

Ms. Fernand indicated that she would provide the requeste d

records on July 21, 2004. However, Ms. Fernand failed to

provide the requested records on July 21, 2004.

13. The following day, July 22, 2004, Special Agent Davis

again contacted Ms. Fernand by telephone. Ms. Fernand indicated

that she would provide t he requested records on July 23, 2004.

But, again, Ms. Fernand failed to provide the requested records.

14. On July 26, 2004, once again, Special Agent Davis

contacted Ms. Fernand by telephone regarding the non - production

of the requested records. Ms. F ernand indicated that she was

ill, and Special Agent Davis informed Ms. Fernand that she could

come to where Ms. Fernand was living and issue her an official

notice of what DABT needed, with the compliance date.

Ms. Fernand agreed, and Special Agent Davis proceeded to where

Ms. Fernand was living.

15. On that same day, July 26, 2004, Special Agent Davis

issued Ms. Fernand an official notice to produce certain

documents. The notice provided, among other things, that

Ms. Fernand had "14 days to produce th e following records:

Separate records of all purchases and gross retail sales of food

and non - alcoholic beverages & alcoholic beverages, Guest checks,

cash register tapes, and any other documentation used to

determine your food & beverage sales." Furtherm ore, the notice

warned that "Failure to comply may result in administrative

charges being filed against your alcoholic beverage license.

*COMPLIANCE DATE AUGUST 13, 2004*." The notice was dated

July 26, 2004. Ms. Fernand signed the notice.

16. Ms. Fern and received the notice on July 26, 2004.

17. On August 6, 2004, Special Agent Davis received a

package from Café, but did not open it. She immediately took

the package to DABT's auditor assigned to conduct Café's audit,

Ronald Flores.

18. Special Agen t Davis opened the package in the presence

of Auditor Flores. Inside the package were the following: (1)

11 receipts, dated between May 6 and June 23, 2004, showing

purchases of alcohol from another vendor, BJ's Wholesale Club;

(2) three blocks of guest c hecks: block one -- numbered from

512402 to 512450; block two -- numbered 100703, 100705, 100707 -

100709, 100711, and from 100713 to 100750, with the guest checks

from 100713 to 100750 being blank; and block three -- numbered

from 100592 to 100595 and 100632; and (3) 26 loose kitchen

tickets, numbered from 84551 to 84570 and from 84572 to 84577.

All of the kitchen tickets failed to reflect a date, the name

Café or of any restaurant, and food sales. Further, the guest

checks reflected only sales of alcoholic beve rages; reflected

only dates on those numbered 100708 and 100709 ("05 - 28 - 04" and

"6/4"); and reflected dates ("4/18/04" through "5/31/04") and

the name Café on those numbered 512402 - 512450, with the dates on

three checks not being legible.

19. The package contained no other record of food sales or

purchases and no record of purchasing alcoholic beverages from

distributors. Furthermore, the package contained no record of

monthly schedules showing food and non - alcoholic and alcoholic

beverage sales.

20. Bas ed on the records presented by Ms. Fernand, Auditor

Flores was unable to perform an audit required by Café's SRX

license and unable to make a determination as to whether Café

met the 51 percent requirement of its license.

21. On August 8, 2004, Special Ag ent Davis contacted

Ms. Fernand by telephone in the presence of Auditor Flores, with

the telephone on speaker - phone. Special Agent Davis inquired as

to the whereabouts of Café's food and non - alcoholic beverage

records. Ms. Fernand responded that she was not aware that

Special Agent Davis wanted the food and non - alcoholic records

but that she (Ms. Fernand) would provide them by August 13,

2004, which was the original compliance date of DABT's notice to

produce records.

22. However, Special Agent Davis did not receive any

records from Ms. Fernand until August 16, 2004, three days

beyond the compliance date to produce the records. The package

received from Ms. Fernand contained three computer - generated

documents for Café: an income statement, representing " 6 Months

Ended June 30, 2004"; a 2004 balance sheet, as of June 30, 2004

and 2003, and a balance sheet of liabilities and stockholders'

equity, as of June 30, 2004 and 2003. Reflected at the bottom

of each document was the following: "See Accountants'

Com pilation Report."

23. The income statement reflected for January 1 through

June 30, 2004, among other things, the following: food sales in

the amount of $8,417.34 and alcohol sales in the amount of

$3,039.66, totaling $11,457.00; gross profit in the amoun t of

$5,942.51; total operating expenses in the amount of $23,901.19;

and a net loss of income in the amount of $17,958.68. The

income statement did not reflect monthly schedules of sales or

any source of documents to verify the figures in the statement

o f income.

24. No document in the package received on August 16,

2004, reflected its source or its creator, and none were signed.

However, at hearing, Ms. Fernand admitted that she had prepared

the income statement.

25. Moreover, in the package received on August 16, 2004,

no food sales and purchase records and no alcohol sales and

purchase records were included.

26. Again, based on the records presented by Ms. Fernand

on August 16, 2004, as well as August 6, 2004, Auditor Flores

was unable to perform an audit required by Café's SRX license

and unable to make a determination as to whether Café met the 51

percent requirement of its license.

27. On August 18, 2004, Auditor Flores forwarded to

Special Agent Davis a memorandum advising her, among other

thing s, that the records submitted by Café were incomplete to

make a determination as to whether Café complied with the "SRX"

requirements, that Café needed to provide the register tapes in

order to verify sales, and that Café needed to provide monthly

sales sc hedules with a breakdown of food and alcoholic beverage

sales.

28. Further, on August 18, 2004, Special Agent Davis

issued a notice to Café that DABT intended to file an

administrative complaint against it for failure to maintain

records, citing the statu tory provision, and SRX violations,

citing the statutory provisions. The notice was mailed,

certified to Café.

29. Ms. Fernand admits that, between December 2003 and

March 2004, Café sold food, as it was a "full restaurant," and

alcoholic and non - alcohol ic beverages; however, no alcoholic

beverages were sold in December 2003. Further, she admits that,

in December 2003, she had a "get together for a few friends" and

a few patrons at Café; and that, in January 2004, a party was

held at Café at which alcoho lic beverages were sold of which she

kept records.

30. Additionally, Ms. Fernand acknowledges that she was

aware that she was required to keep records and admits that she

kept records of the food sales and alcoholic and non - alcoholic

beverage sales.

31. Although she obtained the license from DABT for Café

in December 2003, Ms. Fernand did not open Café for business

until April 17, 2004, as a grand opening.

32. On June 26, 2004, Ms. Fernand lost access to Café as a

result of being closed by the City of F ort Lauderdale. Also, in

August 2004, she was evicted by the landlord of the building in

which Café was located. Subsequently, she paid the landlord the

back rent and was allowed to use the building again. She did

not re - open Café until around November 20, 2004 , even though the

City of Fort Lauderdale notified her around September 7, 2004 ,

that Café could be re - opened.

33. Because of the eviction in August 2004, when Special

Agent Davis requested the documents, Ms. Fernand had to request

the landlord to go into Café and get the documents for her

(Ms. Fernand). Ms. Fernand provided to Special Agent Davis the

documents given to her by her landlord.

34. Prior to losing access to the building in which Café

was located, during the loss of access, and after re - gaining

access, a box containing Café's records was located at Café. At

no time, when she did not have access, did Ms. Fernand request

the landlord to bring the box to her in order to provide food

and beverage records to DABT. At no time, after gainin g access

to the building or prior to hearing, did Ms. Fernand review the

records in the box and provide the requested food and beverage

records to DABT.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the subject matt er of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2005).

36. DABT has the burden of proof to show by clear and

convincing evidence that Café committed the offenses in the

Administrative Action. De partment of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

37. Matters not charged in the Administrative Action

cannot be cons idered as a violation. Chrysler v. Department of

Professional Regulation , 627 So. 2d 31 (Fla. 1st DCA 1993);

Klein v. Department of Business and Professional Regulation , 625

So. 2d 1237 (Fla. 2nd DCA 1993).

38 . Section 561.29, Florida Statutes (2003), pr ovides in

pertinent part:

(1) The division [DABT] 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 her

or its agents, officers, 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, or violation of any municipal

or county regulation in regard to the hours

of sale, service, or consumption of

alcoholic beverages or license requirements

of special licenses issued under s. 561.20

. . .

* * *

(g) A determination that an person required

to be qualified by the d ivision as a

condition for the issuance of the license is

not qualified.

39 . Section 561.20, Florida Statutes (2003), provides in

pertinent part:

(2)(a) No such limitation of the number of

licenses as herein provided shall henceforth

prohibit the issuan ce of a special license

to:

* * *

4. Any restaurant having 2,500 square feet

of service area and equipped to serve 150

persons full course meals at tables at one

time, and deriving at least 51 percent of

its gross revenue from the sale of food and

n onalcoholic beverages; however, no

restaurant granted a special license on or

after January 1, 1958, pursuant to general

or special law shall operate as a package

store, nor shall intoxicating beverages be

sold under such license after the hours of

serving food have elapsed . . .

40 . Section 561.55, Florida Statutes (2003), provides in

pertinent part:

(3)(a) Each manufacturer, distributor,

broker, agent, and importer licensed under

the Beverage Law shall . . .

(b) Each vendor shall keep records of all

p urchases and other acquisitions of

alcoholic beverages for a period of 3 years.

41 . Florida Administrative Code Rule 61A - 3.0141 provides

in pertinent part:

(1) Special restaurant licenses in excess

of the quota limitation set forth in

subsection 561.20( 1), Florida Statutes,

shall be issued to otherwise qualified

applicants for establishments that are bona

fide restaurants engaged primarily in the

service of food and non - alcoholic beverages,

if they qualify as special restaurant

licenses as set forth in s ubsection (2) of

this rule. Special restaurant licensees

must continually comply with each and every

requirement of both subsections (2) and (3)

of this rule as a condition of holding a

license. Qualifying restaurants must meet

the requirements of this r ule in addition to

any other requirements of the beverage law.

The suffix "SRX" shall be made a part of the

license numbers of all such licenses issued

after January 1, 1958.

* * *

(3) Qualifying restaurants receiving a

special restaurant license a fter April 18,

1972 must, in addition to continuing to

comply with the requirements set forth for

initial licensure, also maintain the

required percentage, as set forth in

paragraph (a) or (b) below, on a bi - monthly

basis. Additionally, qualifying restaur ants

must meet at all times the following

operating requirements:

(a) At least 51 percent of total gross

revenues must come from retail sale on the

licensed premises of food and non - alcoholic

beverages. Proceeds of catering sales shall

not be included i n the calculation of total

gross revenues. Catering sales include food

or non - alcoholic beverage sales prepared by

the licensee on the licensed premises for

service by the licensee outside the licensed

premises.

1. Qualifying restaurants must maintain

se parate records of all purchases and gross

retail sales of food and non - alcoholic

beverages and all purchases and gross retail

sales of alcoholic beverages.

2. The records required in subparagraph

(3)(a)1. of this rule must be maintained on

the premises, or other designated place

approved in writing by the division [DABT]

for a period of 3 years and shall be made

available within 14 days upon demand by an

officer of the division. The division shall

approve written requests to maintain the

aforementioned r ecords off the premises when

the place to be designated is the business

office, open 8 hours per work day, of a

corporate officer, attorney, or accountant;

the place to be designated is located in the

State of Florida; and the place to be

designated is pre cisely identified by

complete mailing address.

3. Since the burden is on the holder of the

special restaurant license to demonstrate

compliance with the requirements for the

license, the records required to be kept

shall be legible, clear, and in the Engl ish

language.

4. The required percentage shall be

computed by adding all gross sales of food,

non - alcoholic beverages, and alcoholic

beverages and thereafter dividing that sum

into the total of the gross sales of food

plus non - alcoholic beverages.

* * *

(d) Full course meals must be available at

all times when the restaurant is serving

alcoholic beverages except alcoholic

beverage service may continue until food

service is completed to the final seating of

restaurant patrons for full course meals. A

full course meal as required by this rule

must include the following:

1. Salad or vegetable;

2. Entrée;

3. Beverage; and

4. Bread.

(e) For purposes of determining required

percentages, an alcoholic beverage means the

retail price of a serving of beer, wine,

straight distilled spirits, or a mixed

drink.

42 . The evidence is clear and convincing that, at the time

Ms. Fernand made application for the SRX license she was

notified by DABT, and was aware and understood, that Café was

required to deriv e 51 percent of its gross revenue from sales of

food and non - alcoholic beverages. Also, the evidence is clear

and convincing that, after the issuance of the temporary and

permanent SRX license, Café was required to maintain that 51

percent.

43 . Further, the evidence is clear and convincing, through

the admission of Ms. Fernand, that Café purchased and sold

alcoholic and non - alcoholic beverages and food for the period

from December 18, 2003 through March 31, 2004.

44 . The burden is upon Café to show that it met the 51

percent requirement through its records. The evidence is clear

and convincing that DABT requested from Café, and Café failed to

provide to DABT, records of purchases and sales of alcoholic and

non - alcoholic beverages and food for the period from

December 18, 2003 through March 31, 2004. The records produced

by Café were inadequate and were insufficient for DABT to make a

determination as to the purchases and sales of alcoholic and

non - alcoholic beverages and food for the time period involved .

45 . Additionally, the evidence is clear and convincing

that Café failed, for the period from December 18, 2003 through

March 31, 2004, to have records of purchases and sales of

alcoholic and non - alcoholic beverages and food. Again, the

records produced by Café were inadequate and were insufficient

for DABT to make a determination as to the purchases and sales

of alcoholic and non - alcoholic beverages and food for the time

period involved.

46 . Further, the evidence is clear and convincing that

Café faile d to maintain records of purchases and sales of

alcoholic and non - alcoholic beverages and food for the period

from December 18, 2003 through March 31, 2004. The non -

production of the records by Cafe shows that Café failed to

maintain the records.

47 . Wit hout the aforementioned records, DABT was unable to

perform its audit and determine whether Café complied with its

special licensure requirement to derive 51 percent of its gross

revenue from sales of food and non - alcoholic beverages. Café

failed to maint ain records of all purchases and other

requisitions of alcoholic beverages. As a result, Café failed,

for the period from December 18, 2003 through March 31, 2004, to

meet its licensure requirement of deriving 51 percent of its

gross revenue from sales of food and non - alcoholic beverages and

its licensure requirement to maintain records of all purchases

and other acquisitions of alcoholic beverages.

48 . Moreover, Ms. Fernand admitted that a box in Café

contained records of purchases and sales of food and non -

alcoholic and alcoholic beverages during the pertinent time

period. The evidence demonstrates that she did not have access

to the box when DABT requested Café's records; however, the

evidence further demonstrates that, when Ms. Fernand did gain

acces s to the box, at no time did she open the box to provide

the records to DABT, including prior to the hearing or at the

hearing.

49 . Consequently, DABT demonstrated by clear and

convincing evidence that Café violated Section 561.20(2)(a)4.,

Florida Statute s (2003), by failing to derive 51 percent its

gross revenue from sales of food and non - alcoholic beverages for

the period from December 18, 2003 through March 31, 2004; and

violated Section 561.55(3)(b), Florida Statutes (2003), by

failing to maintain reco rds of all purchases and other

acquisitions of alcoholic beverages for the period from

December 18, 2003 through March 31, 2004.

50 . As to penalty, penalty guidelines are found at Florida

Administrative Code Rule 61A - 2.022. The penalty guidelines are

"i mposed upon alcoholic beverage licensees and permittees who

are supervised by the division [DABT]." Fla. Admin. Code R.

61A - 2.022(1). "The penalties . . . are based upon a single

violation which the licensee committed or knew about; . . . or

violations which were occurring in an open and notorious manner

on the licensed premises." Ibid. "The penalty guidelines set

forth . . . penalties that will be routinely imposed by the

division for violations." Fla. Admin. Code R. 61A - 2.022(11).

51 . Pertinent to the instant matter, for a violation of

Section 561.20, Florida Statutes (2003), the penalty is "$1000

and revocation without prejudice to obtain any other type

license, but with prejudice to obtain the same type of special

license for 5 years"; and for a v iolation of Section

561.55(3)(b), Florida Statutes (2003), the penalty is

revocation. Fla. Admin. Code R. 61A - 2.022(11).

52 . DABT suggests the revocation of Café's SRX license,

with prejudice for Ms. Fernand not to obtain another SRX license

for a five - y ear period, but without prejudice for her to apply

for and obtain any other license for which she may be otherwise

qualified to hold. DABT's suggested penalty is consistent with

the penalty guidelines and is reasonable.

RECOMMENDATION

Based on the forego ing 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:

1. Finding that Ran D Vou Café, d/b/a Ran D Vou Café

violated Sect ion 561.20(2)(a), Florida Statutes (2003).

2. Finding that Ran D Vou Café, d/b/a Ran D Vou Café

violated Section 561.55(3)(b), Florida Statutes (2003).

3. Revoking the SRX license of Ran D Vou Café, d/b/a Ran D

Vou Café, with prejudice for Ms. Mary Ferna nd not to obtain

another SRX license for a five - year period, but without

prejudice for her to apply for and obtain any other license for

which she may be otherwise qualified to hold.

DONE AND ENTERED this 24th day of April 2006, in

Tallahassee, Leon County , Florida.

S

__________________________________

ERROL H. POWELL

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 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of April, 2006.

ENDNOTES

1/ The Administrative Action does not reflect when it was filed.

2/ The final hearing was held by video teleconference. T he

originals of Petitioner's Exhibits 4 and 5 were at the connecting

site in Tallahassee, but no copies of the exhibits were available

at the connecting site in Lauderdale Lakes for review by the

witnesses.

COPIES FURNISHED:

Sorin Ardelean, Esquire

Depa rtment of Business and

Professional Regulation

Northwood Centre, Suite 6

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Mary Fernand

1200 Northwest 47th Avenue

Lauderhill, Florida 33313

P at Palmer , Director

Division of Alcoholic Beverages

And Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Josefina Tamayo , 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 should be fil ed with the agency that

will issue the final order in this case.