STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1067

)

ABC LIQUORS, INC., d/b/a )

ABC LIQUORS #65, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on June 23, 1982, in Palatka, Florida.

APPEARANCES

For Petitioner: Daniel J. Bosanko, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: William L. Whitacre, Esquire

170 East Washington Street Orlando, Florida 32801

ISSUE

Whether respondent's alcoholic beverage license should be disciplined for allegedly serving alcoholic beverages to a person under the age of 19 contrary to Section 562.11(1), Florida Statutes.

BACKGROUND

By notice to show cause dated January 28, l982, petitioner Division of Alcoholic Beverages and Tobacco ("DABT") charged respondent ABC Liquors, Inc., doing business as ABC Liquors #65 ("respondent"), with the unlawful service and sale of an alcoholic beverage to a person under the age of 19. As a penalty, DABT seeks to suspend respondent's beverage license for its Palatka (#65) liquor store.

Respondent disputed the charge and requested a formal hearing. On April 15, 1982, DABT forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer.

At hearing, DABT called the following witnesses: Clay Lamar Strickland, Nary E. Tyler, Brenda Adams, B. W. Rowe, and Tommy Lee Ewing; Petitioner's

Exhibit 1/ Nos. 1-6 were received into evidence. Respondent called John Ottens, Gary R. Lindholtz, Drue Gately, and John D. Holloway as its witnesses; Respondent's Exhibit 1/ Nos. 1-4 were received into evidence.

The transcript 1/ of hearing was filed on August 4, 1982. Proposed findings of fact were filed by the parties by September 7, 1982.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. Respondent holds alcoholic beverage license No. 64-00061, Series 6-COP. Under this license, it operates a liquor store and lounge, where it serves alcoholic beverages, at ABC Liquors #65 ("lounge #65" or "licensed premises"), 2527 Reid Street, Palatka, Florida. (Testimony of Ewing, Holloway, Ottens.)

   I.

   
   

2. At approximately 7:00 p.m. on October 23, 1981, Clay Lamar Strickland,

   16 years old, entered respondent's lounge in the company of several friends--one was 20, the others were 19 years old. During the two hours which followed, he ordered and was served by two barmaids, a beer and eight or nine mixed alcoholic drinks. Neither barmaid requested identification. (Testimony of Strickland.)

   
   

3. At approximately 9:30 p.m., he left the lounge for twenty minutes, then returned and ordered additional mixed drinks. Again, the barmaids did not check his identification. (Testimony of Strickland.)

   
   

4. When he left the lounge at the end of the evening, he was involved in a car accident and charged with driving while intoxicated and wanton reckless driving. After a test was administered, he was informed that the alcohol content of his blood was 0.12 percent. (Testimony of Strickland.)

   
   

5. The two barmaids who served Mr. Strickland, Mary Tyler and Brenda Adams, did not intentionally serve alcohol to a minor. They believed he was 19 or older. At that time, he played football for Palatka High School; he was approximately 5'll" tall and weighed 170 pounds. Because of his size and mature-looking face, he could easily have been mistaken for an adult. (Testimony of Adams, Tyler, Strickland.)

   
   

6. October 23, 1981, was not r. Strickland's first visit to the lounge. Once before, he had succeeded in purchasing one beer; on other occasions, his identification had been checked and service was refused. He was well aware that he was underage and could not legally purchase alcohol. (Testimony of Strickland.)

   
   

   II.

   
   

7. Respondent operates 148 similar liquor stores and lounges throughout Florida. It has announced and repeatedly emphasized to its employees a policy prohibiting sales of alcohol to minors. Its regulations inform new employees of the law against sales of alcohol to persons under 19, and require that bartenders check I.D.s of anyone who "doesn't look 23" or older. Periodic bulletins which must be signed and returned by employees, and posted notes of supervisors' meetings have reiterated respondent's company-wide policy against the sale of alcohol to minors. Further, the manager and night manager of store

   #65 frequently reminded their employees of the policy against sales to minors and the requirement to check I.D.s when in doubt about a customer's age. Ms. Tyler and Ms. Adams, the barmaids who served Mr. Strickland, were aware of this policy. (Testimony of Holloway, Tyler, Adams; R-1, R-2, R.-3.)

   
   

8. On the whole, respondent has been successful in preventing sales of alcohol to minors in its stores and lounges. In the last ten years, it has been cited only ten times for violations relating to the unlawful sale of alcohol to minors. But a disproportionate number of those violations occurred at the Palatka #65 lounge. On two previous occasions, in 1979 and 1981, respondent admitted to unlawful sales of alcohol to minors at the #65 lounge and paid civil penalties. (Testimony of Holloway; P-1, P-6.)

   
   

9. Yet, after each of these violations, including the incident involving Mr. Strickland in October, 1981, respondent's remedial action was simply to reinstruct employees at #65 of its policy not to serve alcoholic beverages to minors and to prevent such incidents from occurring. This action was not substantially different from the routine reminders it periodically issued to its employees in the past. (Testimony of Holloway, Ottens, Lindholtz.)

   
   

10. At lounge #65, signs were not posted calling attention to its policy that sales to minors were prohibited. Neither did it post an employee at the main entrance to check I.D.s and keep minors out of the premises. (Testimony of Holloway, Ottens, Lindholtz.)

    
    

    III.

    
    

11. The foregoing findings support a factual inference that respondent was not reasonably diligent in taking steps to prevent further repetition of sales to minors at its #65 lounge. Having been placed on notice that such incidents were occurring in disproportionate number at #65 lounge, it had a duty to investigate, to determine why such a phenomenon had occurred, and to take further precautionary measures. Instead, it was satisfied to simply remind the employees of store #65 of longstanding company policy.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

13. Section 561.29(1)(a) , Florida Statutes (1981), empowers DABT to revoke or suspend an alcoholic beverage license when it finds that the licensee, or its employees, while in the scope of employment, have violated a state law on the licensed premises. Section 562.11(1), Florida Statutes (1981), makes it unlawful in Florida to sell, serve, or permit to be served alcoholic beverages to a person under 19 years of age.

    
    

14. The licensee is not, however, an insurer against violations of law committed on its premises.

    
    

    . . . . The licensee is responsible to determine who is underage, but since the inquisition into a charge of violation is equitable in nature and not criminal, he is held only to a reasonable standard of diligence. Before a license can be

    suspended or revoked, the licensee should be found by the Director to have been culpably responsible for such violation as a result of his own negligence,

    intentional wrongdoing or lack of diligence.

    
    

    Woodbury v. State Beverage Department, 219 So.2d 47, 48 (Fla. 1st DCA 1969)

    
    

15. In the instant case, respondent was not reasonably diligent in taking steps to prevent further sales of alcohol to minors at its Palatka lounge. It follows that respondent was culpably responsible for the violation of Section 562.11(1) occurring on its premises, and DABT has cause to discipline its beverage license pursuant to Section 561.29(1). The penalty which it proposes, a 30-day license suspension, is both reasonable and appropriate under the circumstances of this case.

    
    

16. Respondent cites Woodbury, supra, and Taylor v. State Beverage Department, 194 So.2d 321 (Fla. 2d DCA 1967) in support of its contention that this case deals only with an isolated incident and that it was reasonably diligent in taking steps to prevent the sale of alcohol to minors. But the facts in those cases were more favorable to the licensees.

    
    

17. In Woodbury, the charge was based on a single sale to a minor, not, as here, repeated sales over a period exceeding two hours. Neither had the Woodbury licensee been previously cited, twice, for unlawful sale of alcohol to minors on the premises. Moreover, there, the minor lied to and misled the bartender by telling him that his I.D. card had been checked earlier.

    
    

18. In Taylor, the minors, who were served only one alcoholic beverage on the premises, gained entry by surreptitiously slipping by the door-checkers when their backs were turned. The court stated that the licensee had taken "every reasonable precaution to keep male minors off the premises during operating hours", Id. at 329, and cited Trader Jon, Inc. v. State Beverage Department, 119 So.2d 735 (Fla. 1st DCA 1960) as authority for the reasonable precautions" which might be required of a licensee. Taylor, supra, at 329. In Trader Jon, the precautions, found reasonable by the court, included regular guarding of the entrance to keep minors out and maintaining of signs inviting attention to the fact that sales to minors were prohibited, Id. at 737--two precautions not taken by respondent. Finally, in Trader Jon the offense consisted of serving one beer each to three minors, and there was no evidence that the licensee had ever before been cited for serving alcohol to minors.

    
    

19. The parties' proposed findings which are incorporated herein are adopted; otherwise, they are rejected as unnecessary to resolution of the issues or unsupported by the evidence.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent's alcoholic beverage license for lounge #65 be suspended for thirty days from entry of the final order in this proceeding.

DONE and RECOMMENDED this 1st day of October, 1982, in Tallahassee, Leon County, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1982.

ENDNOTE

1/ DABT exhibits will be referred to as "P- " respondent's exhibits as "R-

", and transcript pages as "Tr."

COPIES FURNISHED:

Daniel J. Bosanko, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

William L. Whitacre, Esquire

170 East Washington Street Orlando, Florida 32801

Charles A. Nuzum, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 82-001067

Orders for Case No: 82-001067