F. WALTHIER III and ANDREW ) ERICKSON, t/a FOAM AND FIZZ, )
Respondent. )
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on April 22, 1980, and was held in the offices of the Division of Alcoholic Beverages and Tobacco, 2665 Cleveland Avenue South, Forth Myers, Florida.
For Petitioner: James N. Watson, Esquire
The issue presented by this case concerns the allegation that on January 25, 1980, the Respondents, through their agent, servant or employee, one Barbara Joyce Walthier, did unlawfully sell alcoholic beverages to Ira J. Frasure, seventeen years of age, and James Craig McDowell, sixteen years of age, juveniles, and that the sale was contrary to Section 562.11, Florida Statutes, thereby subjecting the Respondents to the penalties found in Section 561.29, Florida Statutes.
The Respondents, J. F. Walthier III and Andrew Erickson, are the holders of a current valid beverage license, No. 46-00210, Series 2-APS, held in the name of Walthier, J. F. III and Ericks. This license is for a premises located at 4721 Palm Beach Boulevard, Fort Myers, Lee County, Florida. The
Respondents conduct their business at this licensed premises under the name Foam and Fizz. This beverage license series entitled the Respondents to sell a class of alcoholic beverage for consumption off the licensed premises.
One of the categories of alcoholic beverages allowed for sale under the terms and conditions of the license is beer.
The subject beverage license was issued by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. The Petitioner is charged with the licensure and regulation of the several alcoholic beverage license holders within the State of Florida. In pursuit of its function, the Petitioner has brought an Administrative Complaint/Notice to Show Cause against the named Respondents and the terms and conditions of that complaint may be found in the issue statement of this Recommended Order.
The facts in this case reveal that between 9:00 p.m. and 10:00 p.m. on January 25, 1980, three young men under the age of eighteen drove to the licensed premises for purposes of purchasing beer. Once the car was parked, Ira
J. Frasure and dames Craig McDowell exited the car. On that date, Ira J. Frasure was seventeen years of age and James Craig McDowell was sixteen years of age. They left Frank Edward Gordon in the automobile, where he would remain during the pendency of the other juveniles' activities in the licensed premises.
Once in the store, Frasure retrieved a six-pack of Budweizer beer and McDowell picked up several single cans of Budweizer beer. The beer which had been picked up by the juveniles was presented at the checkout counter to Barbara Joyce Walthier, the wife of one of the licensees and an employee in the licensed premises. At that point, Frasure paid Walthier for the beer from money which he had and money which had been given to him by McDowell. The juveniles then left the store. Neither of the juveniles had been asked for any form of identification prior to the sale of the alcoholic beverages, nor had they been asked about their ages, and they did not make any comment concerning their ages.
Frasure's date of birth is September 30, 1962, and at the time of the purchase he was approximately six feet one inch tall and had a mustache. Frasure gave testimony in the course of the hearing and appeared to be eighteen years of age or older at that time. Investigative officers who saw Frasure on January 25, 1980, said they felt he appeared to be less than eighteen years of age.
McDowell's date of birth is February 9, 1963, and at the time of the hearing he appeared to be less than eighteen years of age, and this comported with the impression of the investigating officers when they saw him on January 25, 1980.
At the time Frasure purchased the beer from the clerk, Barbara Joyce Walthier, she was not busy with other customers to the extent that it would hinder her ability to check the appearance of Frasure and McDowell; however, business on the evening in question had been moderate to heavy at times and she does not remember seeing Frasure and McDowell. Barbara Joyce Walthier was working in accordance with a set of instructions from the licensees, in the person of her husband, to the effect that she should always require written identification prior to purchase from those persons who looked like they should be "carded". Moreover, she had been instructed that those persons who have beards are not normally "carded". Other factors to be considered, per instruction she had been given, were to require written identification from
those persons who acted suspiciously while in the store, or who parked a great distance away from the store after driving slowly by.
In keeping with these instructions, she routinely requires written identification from patrons.
Finally, there was a sign in the licensed premises which stated, "Under age don't ask".
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.
The licensees are charged with a violation of Section 562.11, Florida Statutes, based upon the acts of their employee, Barbara Joyce Walthier, and are held to answer for those acts in keeping with provisions of Section 561.29 Florida Statutes.
An analysis of the facts found herein leads to the conclusion that Barbara Joyce Walthier sold alcoholic beverages, to wit: beer, to Ira J. Frasure at a time when he was a minor, that is, under the age of eighteen years of age. This sale was made in the licensed premises of the Respondents. Consequently, Barbara Joyce Walthier has violated the conditions of Section
562.11 Florida Statutes, pertaining to the sale of alcoholic beverages to persons under the age of eighteen.
The Respondents/Licensees were not directly involved in this transaction; however, they have a potential vicarious liability if the acts of the employee, Barbara Joyce Walthier, may be imputed to them based upon their negligence or lack of diligence in operating the licensed premises. See Trader Jon, Inc. v. State Beverage Department, 119 So.2d 735 (1st DCA 1960) and Taylor
v. State Beverage Department, 194 So.2d 321 (2d DCA 1967).
A specific discussion of the substantive standard of conduct encumbent upon a licensee in the instance of sales of alcoholic beverages to minors by the licensee or his agents, servants or employees to avoid a claim of direct culpability, culpability by negligence or culpability through lack of due diligence is discussed in the cases of Cohen v. Schott, 48 So.2d 154 (Fla. 1950) and Woodbury v. State Beverage Department, 219 So.2d 47 (1st DCA 1969). From the holdings in Cohen and Woodbury, supra, a licensee is exercising a reasonable standard of diligence in avoiding acts of negligence when he makes it generally known that alcoholic beverages may not be purchased or consumed in his licensed premises by minors; frequently checks identification cards and instructs his employees to do so; requires substantial proof of age, i.e., identification from those persons who appear to be juveniles and instructs his employees to make the same checks; makes verbal inquiry and requires his employees to make verbal inquiry of the age of those patrons who appear to have reached their majority; and does not allow a pattern of conduct on the part of his employees which violates the guidelines set out herein.
When the instructions which were given by the Respondent, J. F. Walthier III, to his employee, Barbara Joyce Walthier, concerning the possible sale of alcoholic beverages to minors are measured against the guidelines, they are insufficient. The insufficiency is found in the fact that Barbara Joyce Walthier was never instructed to ask the age of patrons purchasing alcoholic beverages and in fact never asked Frasure's age and Frasure did not volunteer
