PINACOTECA CORPORATION, D/B/A CLUB 21, PETITIONER,
v.
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, RESPONDENT
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Pinacoteca Corporation (Club 21) challenged an emergency suspension of its alcoholic beverage license. The Florida Fourth District Court of Appeal upheld the suspension, finding the emergency order sufficiently identified particularized facts demonstrating immediate danger to public welfare based on multiple drug transactions on the licensed premises.
The emergency order was sufficiently explicit and persuasive to show immediate danger to public health, safety, and welfare. An alcoholic beverage licensee is held to a high degree of accountability for violations of law during operation of its establishment, and persistent illegal activity on licensed premises may give rise to an inference of licensee knowledge.
[1] An emergency order suspending an alcoholic beverage license must identify particularized facts showing an immediate danger to the public welfare.
[2] An alcoholic beverage licensee is held to a high degree of accountability for violations of law occurring during the operation of its establishment.
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Join FLexlaw to unlock all legal intelligence“An alcoholic beverage licensee is not an absolute insurer of the propriety of all conduct and human activities upon its premises, but it is held to high degree of accountability for a violation of law occurring during the operation of its establishment.”
Establishes the legal standard for licensee liability for conduct on premises
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Join FLexlaw to unlock all legal intelligenceA confidential informant and undercover beverage officers conducted eight separate cocaine transactions and one marijuana transaction on Club 21's pre…
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[*882] PER CURIAM.
Petitioner seeks review of an emergency order suspending its alcoholic beverage license. No prior hearing having been held, the record for our review is limited to the four corners of the order itself. See § 120.68(5)(c), Fla.Stat. (1989); Pure Fresh Enter., Inc. v. Dep’t of Business Regulation, 510 So. 2d 1020 (Fla. 4th DCA 1987); Commercial Consultants Corp. v. Dep’t of Business Regulation, 363 So. 2d 1162 (Fla. 1st DCA 1978).
Having rejected petitioner’s contention that it has been deprived of due process, see Pure Fresh, 510 So. 2d at 1020, Lash, Inc. v. State Dep’t of Business Regulation, 411 So. 2d 276, 277 n. 1 (Fla. 3d DCA 1982), Lerro v. Dep’t of Professional Regulation, 388 So. 2d 47 (Fla. 2d DCA 1980), and Saviak v. Gunter, 375 So. 2d 1080 (Fla. 1st DCA 1979), our remaining task is to determine whether the emergency order sufficiently identifies particularized facts showing an immediate danger to the public welfare. See Pure Fresh, 510 So. 2d at 1020; Denney v. Conner, 462 So. 2d 534 (Fla. 1st DCA 1985); Gervais v. Division of Alcoholic Beverages & Tobacco, 438 So. 2d 90 (Fla. 2d DCA 1983).
An alcoholic beverage licensee is not an absolute insurer of the propriety of all conduct and human activities upon its premises, but it is held to high degree of accountability for a violation of law occurring during the operation of its establishment. Taylor v. State Beverage Dep’t, 194 So. 2d 321 (Fla. 2d DCA), cert. denied, 201 So. 2d 464 (Fla.1967). Also, where illegal activity on licensed premises is persistent and recurring, it may be inferred that the licensee had knowledge of the activity. Lash, Inc. v. State Dep’t of Business Regulation, 411 So. 2d 276 (Fla. 3d DCA 1982); Golden Dolphin No. 2, Inc. v. State Division of Alcoholic Beverages & Tobacco, 403 So. 2d 1372 (Fla. 5th DCA 1981); G & B of Jacksonville, Inc. v. State Dep’t of Business Regulation, 371 So. 2d 139 (Fla. 1st DCA 1979).
Sections 561.29(l)(a) and (c), Florida Statutes (1989), provide in pertinent part that an alcoholic beverage license may be suspended when the licensee or its employees permit another on the licensed premises to violate any of the laws of this state, or when the licensee maintains a nuisance on the licensed premises. Section 823.10, Florida Statutes (1989), provides in pertinent part that any building that is visited by persons for the purpose of unlawfully using, selling or delivering controlled substances shall be deemed a public nuisance.
Here, the emergency order indicates that a confidential informant and undercover beverage officers conducted eight separate cocaine transactions and one marijuana transaction on the club’s premises during a seventy-eight-day period. According to the order, two of the cocaine transactions directly involved two different club employees, and four indirectly involved club employees. The marijuana transaction directly involved a club security guard.
We conclude that the factually explicit emergency order is persuasive and is sufficient to show an immediate danger to the public health, safety or welfare. Accordingly, the petition for review is denied. This decision does not, however, affect any subsequent administrative proceedings under section 120.57(1), Florida Statutes (1989), at which proceedings petitioner may introduce evidence to contradict the findings in the emergency order. GLICKSTEIN, STONE and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Witmer v. Dep't of Bus. & Prof'l Reg., 631 So. 2d 338 (Fla. 4th DCA 1994)…lawful under section 120.54(9)(a)3. The factual allegations contained in the emergency order must sufficiently identify particularized facts which demonstrate an immediate danger to the public. Pinacoteca Corp. v. Department of Business Regulation, 580 So. 2d 881, 882 (Fla. 4th DCA 1991). Where, as here, no hearing was held prior to the entry of the emergency order, every element necessary to its validity must appear on the face of the order. Commercial Consultants Corp. v. Department of Business Regulation,…
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Fla. Ass'n of Homes & Servs. for the Aging, Inc. v. Agency for Health Care Admin., 252 So. 3d 313 (Fla. 1st DCA 2018)…prior to any hearings or rulings below. Thus, the record on appeal is limited to the four corners of the emergency rules themselves. See § 120.68(4), Fla. Stat.; Pinacoteca Corp. v. Dep’t of Bus. Regulation, Div. of Alcoholic Beverages and Tobacco, 580 So. 2d 881, 882 (Fla. 4th DCA 1991); Commercial Consultants Corp. v. Dep’t of Bus. Regulation, Div. of Fla. Land Sales and Condos., 363 So. 2d 1162, 1164 (Fla. 1st DCA 1978). Therefore, this Court must determine whether the four corners of the emergency rules…
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White Constr. Co., Inc. v. State, 651 So. 2d 1302 (Fla. 1st DCA 1995)…tion 120.54(9)(a), Witmer has held: The factual allegations contained in the emergency order must sufficiently identify particularized facts which demonstrate an immediate danger to the public. Pinacoteca Corp. v. Department of Business Regulation, 580 So. 2d 881, 882 (Fla. 4th DCA 1991). Where, as here, no hearing was held prior to the entry of the emergency order, every element necessary to its validity must appear on the face of the order. Commercial Consultants Corp. v. Department of Business Regulation,…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Commercial Consultants Corp. & Linene Woods, Inc. v. Dep't of Bus. Reg., 363 So. 2d 1162 (Fla. 1st DCA 1978)
- Lash, Inc. v. State, 411 So. 2d 276 (Fla. 3d DCA 1982)
- Saviak v. Gunter, 375 So. 2d 1080 (Fla. 1st DCA 1979)
- Gen. Ins. Co. v. Lumbermens Mut. Cas. Co., 462 So. 2d 534 (Fla. 3d DCA 1985)
- Golden Dolphin NO. 2, Inc. v. State, 403 So. 2d 1372 (Fla. 5th DCA 1981)
- Taylor v. State Bev. Dep't of Fla. & Dir. of State Bev. Dep't of Fla., 194 So. 2d 321 (Fla. 2d DCA 1967)
- Lerro v. Dep't OF Prof'l Reg., 388 So. 2d 47 (Fla. 2d DCA 1980)
- Seaside Props., Inc. v. State Rd. Dept., 201 So. 2d 464 (Fla. 1967)
- Thornton v. State, 201 So. 2d 464 (Fla. 1967)
- G & B OF Jacksonville, Inc. v. State, 371 So. 2d 139 (Fla. 1st DCA 1979)