08-003891 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. Latin American Cafe And Market, Inc., D/B/A Latin American Cafe Status: Closed Recommended Order on Tuesday, March 31, 2009.

Summary: Respondent possessed alcoholic beverages on its licensed premises that were not authorized to be sold under Respondent`s license. Recommend an administrative fine of $1,000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 08-3891

)

LATIN AMERICAN CAFE AND MARKET, INC., d/b/a LATIN AMERICAN )

CAFE, )

)

)

Respondent. )

)

RECOMMENDED ORDER

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

on December 4, 2008, in Clearwater, Florida, before Carolyn S.

Holifield, Administrative Law Judge of the Division of

Administrative Hearing.

APPEARANCES

For Petitioner: Joshua B. Moye, Esquire

Sarah C. Naf, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Eduardo R. Latour, Esquire

Latour and Associates, P.A.

135 East Lemon Street

Tarpon Springs, Florida 34689

STATEMENT OF THE ISSUES

The issues are: (1) whether Respondent violated Section

562.02, Florida Statutes (2007), 1 by unlawfully possessing

certain alcoholic beverages on its licensed premises which were

not authorized to be sold under its license; (2) whether

Respondent violated Subsection 561.14(3), Florida Statutes, by

purchasing or acquiring alcoholic beverages for the purpose of

resale from persons not licensed as distributors; and (3) if so,

what penalty or administrative fine should be imposed.

PRELIMINARY STATEMENT

On December 19, 2007, Petitioner, Department of Business

and Professional Regulation, Division of Alcoholic Beverages and

Tobacco ("Division" or "Petitioner"), filed an Administrative

Action against Respondent, Latin American Café and Market, Inc.,

d/b/a Latin American Café ("Latin American Café" or

"Respondent"). Petitioner alleged that on or about November 21,

2007, Respondent: (1) allowed or permitted on its premises the

possession of alcoholic beverages that it was not authorized to

sell; and (2) purchased or acquired alcoholic beverages for the

purpose of resale from persons not licensed as a distributor.

Respondent denied the allegations and requested a formal

hearing.

Petitioner referred the matter to the Division of

Administrative Hearings on August 11, 2008, and requested that

an Administrative Law Judge be assigned to conduct a formal

hearing. By notice dated August 26, 2008, the case was

scheduled for hearing and held as noted above.

At hearing, Petitioner presented the testimony of Special

Agent Casey Simon and Lieutenant David Merrill of the Division.

Petitioner's Exhibits 1 through 8 were admitted into evidence.

Respondent presented the testimony of one witness, Alberto

Pagini, Respondent's president and owner. Respondent's Exhibits

1 and 2 were admitted into evidence.

A hearing Transcript was filed on January 8, 2009. Both

parties timely filed Proposed Recommended Orders, which have

been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is, and was at all times relevant hereto,

the holder of alcoholic beverage License No. 62-10299,

Series 2-COP, which permits the sale of beer and wine, but no

other alcoholic beverages, for consumption on the premises.

2. Petitioner seeks to impose sanctions on the license of

Respondent.

3. Mr. Pagini owned and operated Latin American Café, a

restaurant located at 3780 Tampa Road, Oldsmar, Florida. The

restaurant serves Latin American and South American foods and

desserts, some of which contain alcoholic beverages in

preparation of said food.

4. At all times relevant to this proceeding, the menu for

Latin American Café stated that only one type of liquor was used

for cooking.

5. Respondent was placed on the Division's "No Sale" list

on August 21, 2007, for failure to renew its license. As a

result of being on the "No Sale" list, distributors were

prohibited from selling alcoholic beverages to Respondent.

Nevertheless, as discussed below, a receipt dated August 23,

2007, shows that a distributor sold alcoholic beverages to

Respondent.

6. Due to Respondent's being placed on the "No Sale" list,

Casey Simon, a special agent with the Division, conducted an

inspection of Latin American Café on November 21, 2007. During

the inspection, Agent Casey discovered beer and liquor on the

premises. The beer was located in a cooler behind the bar at

the front of the premises, and the liquor was located in the

manager's office and in the kitchen cupboards.

7. The liquor discovered on Respondent's premises on

November 21, 2007, consisted of the following: (a) one,

one-quart bottle of Mr. Boston Crème De Cassis; (b) one,

750-millimeter bottle of Cinzano Rosso Vermouth; (c) one,

750-millimeter bottle of Chevas Regal Whiskey; (d) one,

750-millimeter bottle of Sambuca Di Amare; (e) one, 1.75-liter

bottle of Heritage Triple Sec; (f) one, 250-millimeter bottle of

Chasqui Licor De Café; (g) one, 750-millimeter bottle of

Truffles Liquor; (h) one, one-liter bottle of Sambroso Licor De

Café; and (i) one, .75-liter bottle of Heritage Rum.

8. Respondent contends that seven of the nine kinds of

suspect liquor found on the premises were used for cooking,

mostly desserts, at the business. The remaining two liquors

found on the premises, Chevas Regal Whiskey and Sambuca, were

for Mr. Pagani's personal use. The Chevas Regal Whiskey was a

present that had been given to Mr. Pagini, and at the time of

the inspection, the whiskey was in a box in his office. The

Sambuca Di Amare is a "digestive" liquor made in Italy and was

for Mr. Pagini's personal use.

9. Although most of the liquor was found on Respondent's

premises during the inspection, Respondent's menu does not list

any of the suspect liquors as an ingredient in any of the menu

items.

10. The beer discovered on Respondent's premises on

November 21, 2007, consisted of the following: (a) 41, 12-ounce

bottles of Bud Light, with a born date of September 2007;

(b) six, 12-ounce bottles of Budweiser; (c) 27, 12-ounce bottles

of Miller Lite; (d) 12, 12-ounce bottles of Heineken; and

(e) 19, 12-ounce bottles of Corona.

11. The Bud Light's "born date" of September 2007, is the

date in which the beer was manufactured. Thus, it can be

reasonably concluded that beer with a "born date" of September

2007, cannot be purchased prior to that month.

12. During the November 21, 2007, investigation, the

Division's agent requested invoices for the beer found on the

premises. Respondent produced a receipt from Sam's Club dated

November 16, 2007, which reflected the sale of various items to

a "member," identified, presumably, by a membership number.

Among the items purchased were other documents provided to Agent

Simon which showed that Latin American Café was the member on

the November receipt. Next to the name of each kind of beer was

the number "24" which, presumably, indicated the number of

bottles of beer that were purchased.

13. Mr. Pagini testified that many of the items purchased

from Sam's Club on November 16, 2007, including the Bud Light

and the Heineken, were for personal use.

14. At this proceeding, Respondent introduced into

evidence copies of two receipts which reflect that it purchased

alcoholic beverages from two authorized distributors,

J.J. Taylor Distributors Florida, Inc. ("J.J. Taylor

Distributors") and Great Bay Distributors, Inc. ("Great Bay

Distributors"). The receipts were dated August 9, 2007, and

August 23, 2007, respectively.

15. The receipt from J.J. Taylor Distributors dated

August 9, 2007, reflects that Respondent purchased the following

alcoholic beverages: (a) 24, 12-ounce bottles of Becks beer;

(b) 24, 12-ounce bottles of Braham beer; (c) 24, 12-ounce

bottles of Heineken beer; (d) 24, 12-ounce bottles of "Lite"

beer; and (e) 24, 12-ounce bottles of Presidente.

16. The receipt from Great Bay Distributors dated

August 23, 2007, reflected the purchase of the following

alcoholic beverages: (a) 24, 12-ounce bottles of Budweiser

beer; (b) 24, 12-ounce bottles of Corona beer; (c) 24, 12-ounce

bottles of Modesto Especial; and (d) 24, 12-ounce bottles of

Negro Modesto.

17. Despite Respondent's providing receipts from

distributors, no plausible explanation was provided to establish

when and from whom the Bud Light, discovered on Respondent's

premises on November 21, 2007, was purchased. The receipts from

the distributor were dated about one month prior to the Bud

Light's born date of September 2007.

18. The suspect Bud Light has a born date of September

2007, which is after the dates of the distributor receipts and

after Respondent was placed on the "No Sale" list.

19. No evidence was offered to establish where the suspect

beer, Bud Light, was purchased or acquired.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2008).

21. The Division has jurisdiction over the regulation of

alcoholic beverage licenses pursuant to Section 561.02, Florida

Statutes.

22. Subsection 561.29(1)(a), Florida Statutes, sets forth

the acts for which the Division may impose discipline and

provides, in pertinent part:

(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

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,

or engaging in or permitting disorderly

conduct on the licensed premises, or

permitting another on the licensed premises

to violate any of the laws of this state or

of the United States. A conviction of the

licensee or his or her or its agents,

officers, servants, or employees in any

criminal court of any violation as set forth

in this paragraph shall not be considered in

proceedings before the division for

suspension or revocation of a license except

as permitted by chapter 92 or the rules of

evidence.

23. In this case, Respondent is charged with violating

Section 562.02 and Subsection 561.14(3), Florida Statutes.

24. Section 562.02, Florida Statutes, provides that:

It is unlawful for a licensee under the

Beverage Law or his or her agent to have in

his or her possession, or permit anyone else

to have in his or her possession, at or in

the place of business of such licensee,

alcoholic beverages not authorized by law to

be sold by such licensee.

25. Subsection 561.14(3), Florida Statutes, provides as

follows:

(3) No vendor shall purchase or acquire in

any manner for the purpose of resale any

alcoholic beverages from any person not

licensed as a vendor, manufacturer, bottler,

or distributor under the Beverage Law.

Purchases of alcoholic beverages by vendors

from vendors shall be strictly limited to

purchases between members of a pool buying

group for which the initial purchase of the

alcoholic beverages was ordered by a pool

buying agent as a single transaction. No

vendor shall be a member of more than one

cooperative or pool buying group at any

time. No vendor shall import, or engage in

the importation of, any alcoholic beverages

from places beyond the limits of the state.

26. Proceedings such as this one which seek to suspend,

revoke, or impose other discipline on a professional license are

penal in nature. State ex rel. Vining v. Florida Real Estate

Commission , 281 So. 2d 487, 491 (Fla. 1973). Thus, to impose

discipline, the Division must prove the charges against the

licensee by clear and convincing evidence. Department of

Banking and Finance, Div. of Securities and Investor Protection

v. Osborne Stern & Co. , 670 So. 2d 932, 933-34 (Fla. 1996),

citing Ferris v. Turlington , 510 So. 2d 292, 294-95 (Fla. 1987);

Nair v. Department of Business & Professional Regulation , 654

So. 2d 205, 207 (Fla. 1st DCA 1995).

27. Clear and convincing evidence is described in

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983),

which was adopted by the Florida Supreme Court in Inquiry

Concerning a Judge No. 93-62 , 645 So. 2d 398, 404 (Fla. 1994),

as follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

28. The Division established by clear and convincing

evidence that on November 21, 2007, Respondent possessed

alcoholic beverages on the licensed premises which were not

authorized to be sold under Respondent's license. Thus,

Respondent violated Section 562.02, Florida Statutes.

29. The evidence was insufficient to prove, clearly and

convincingly, that Respondent acquired alcoholic beverages for

resale from a person not licensed as a distributor under the

Beverage Law. Therefore, the Division did not meet its burden

of proof as to the charge that Respondent violated Subsection

561.14(3), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco, enter a final order: (1) finding that Respondent,

Latin American Café and Market, Inc., d/b/a Latin American Café,

violated Section 562.02, Florida Statutes; (2) finding that

Respondent did not violate Subsection 562.14(3), Florida

Statutes; (3) imposing an administrative fine of $1,000.00 for

the violation of Section 562.02, Florida Statutes; and

(4) requiring the fine to be paid within 30 days of the final

order.

DONE AND ENTERED this 31st day of March, 2009, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of March, 2009.

ENDNOTE

1/ All statutory references are to Florida Statutes (2007),

unless otherwise noted.

COPIES FURNISHED :

Jerry Geier, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Lucynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Eduardo R. Latour, Esquire

Latour and Associates, P.A.

135 East Lemon Street

Tarpon Springs, Florida 34689

Joshua B. Moye, Esquire

Sarah C. Naf, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

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 filed with the agency that

will issue the Final Order in this case.