STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3077

) JAMILIR, INC., d/b/a POMPANO ) DISCOUNT BEVERAGES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., conducted a formal hearing in this case on March 17, 1983, in Lauderhill, Florida.

APPEARANCES

For Petitioner: John A. Boggs, Staff Attorney

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

For Respondent: No appearance

ISSUE

Whether, on four separate occasions, agents, servants, or employees of respondent sold alcoholic beverages to persons under 19 years of age, in violation of Section 562.11, Florida Statutes, as alleged in petitioner's Notice to Show Cause.

BACKGROUND

By Notice to Show Cause, petitioner Division of Alcoholic Beverages and Tobacco ("DABT") charged respondent Jamilir, Inc., d/b/a Pompano Discount Beverage ("respondent") with violating Section 562.11, Florida Statutes, by selling alcoholic beverages to persons under the age of 19. By letter dated October 5, 1982, respondent requested a hearing on the charges and on November 8, 1982, DABT forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer.

Hearing was set for December 29-30, 1982, then, on respondent's unopposed motion, continued and reset for March 17-18, 1983.

At hearing, DABT called Donald Kasten, Thomas Sunding, Thomas Sardinio, Donna Weiss, Douglas Cable, Sgt. Robert Adelman, William O'Brien, William Elfo

and Richard Boyd. Petitioner's Exhibit No. 1 was received into evidence. Respondent did not appear or present any evidence.

DABT filed proposed findings of fact and conclusions of law by March 28, 1983. No transcript of the hearing has been filed.

Based on the evidence presented, the following facts are determined: FINDINGS OF FACT

1. Respondent does business as Pompano Discount Beverage in Pompano Beach, Broward County, Florida and holds alcoholic beverage license no. 16-2587, Series 2-APS.

   
   

2. On February 7, 1979, Thomas Christopher Smaling, age 17, entered the premises of Pompano Discount Beverage and bought two bottles of Heineken's beer from Irving I. Lobel, Secretary of the respondent corporation. Neither Mr. Lobel nor any other employee of respondent asked Thomas Smaling to produce identification prior to selling him the alcoholic beverage.

   
   

3. On August 15, 1979, Donna Ann Weiss, age 17, and several friends entered respondent's licensed premises, selected a bottle of Cella Lambrusco wine from the cooler and paid the purchase price to Mildred R. Lobel, the President/Treasurer of respondent corporation. Neither Ms. Lobel nor any other employee of respondent asked Donna Weiss to show identification.

   
   

4. On May 26, 1981, Thomas Sardinio, a white male, age 17, entered respondent's licensed premises and purchased two cans of Budweiser beer from Irving L. Lobel. Neither Mr. Lobel nor any other employee of respondent asked Thomas Sardinio to show identification before selling him the alcoholic beverage.

   
   

5. On June 12, 1982, after receiving complaints concerning alleged sale of alcoholic beverages to minors by respondent's employees, Beverage Officer Don Kasten conducted a routine inspection of the licensed premises. He delivered an official warning to the Lobels, advising that complaints had been received concerning their alleged sale of alcoholic beverages to minors in violation of Section 562.11, Florida Statutes.

   
   

6. Yet, on February 26, 1982, William Whitcomb, age 18, purchased six bottles of Lowenbrau beer from an employee on respondent's licensed premises. No identification was requested or checked.

   
   

7. Irving Lobel has previously been arrested for selling alcoholic beverages to persons not of age.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1), Fla.Stat. (1981)

   
   

9. DABT is authorized by Sections 561.29 and 562.11, Florida Statutes, to suspend or revoke an alcoholic beverage license for sale of alcoholic beverages to anyone under the age of 19.

10. License revocation proceedings, such as this, are penal in nature.

    The prosecuting agency must prove its charges by clear and convincing evidence-- by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2d DCA 1975); Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

    
    

11. Measured by these standards, it is concluded that respondent, through its officers and employees, violated Section 562.11 on February 7, 1979, August 15, 1979, May 26, 1981, and February 26, 1982, as alleged in Counts 1-4 of the Notice to Show Cause. Respondent was placed an notice of alleged sale of alcohol to under-aged persons, yet it continued to sell alcohol to young people without asking for identification or proof of age. Repeated violations, in the absence of other evidence, are sufficient to support an inference that the violations were either fostered, condoned, or negligently overlooked by the licensee. See, Pauline v. Lee, 147 So.2d 359, 364 (Fla. 2d DCA 1962), cert. denied 156 So.2d 389 (Fla. 1963); Lash, Inc. v. Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982). Such an inference provides a basis for license revocation. See, Bach v. Florida State Board of Dentistry,

    378 So.2d 34, 36 (Fla. 1st DCA 1979). The frequency and manner of respondent's violations of Section 562.11 support such an inference here, and the revocation of its license under Section 561.29(1)(a), Florida Statutes is warranted.

    
    

12. On Nay 2, 1983, respondent, through counsel, filed a motion for rehearing, asserting that it "[was] not informed of the hearing of March 17th." The motion also states that, after receiving the Notice of Hearing, dated January 12, 1983, setting hearing for March 17, 1983, counsel for respondent notified the owners of respondent corporation, and received no response. By written response, DABT opposes the motion. Insufficient basis for rehearing has been pled, since it affirmatively appears respondent was notified of the March 17, 1983 hearing yet decided, for reasons unknown, not to communicate with its counsel or appear at hearing. The motion for rehearing is, therefore, denied.

    
    

13. To the extent DABT's proposed findings of fact are incorporated herein, they are adopted; otherwise they are rejected as unsupported by the evidence or unnecessary to resolution of the issue presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent's alcoholic beverage license no. 16-2587, Series 2-APS, be revoked for multiple violations of the Beverage Law.

DONE and ENTERED this 6th day of May, 1983, in Tallahassee, 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 6th day of May, 1983.

COPIES FURNISHED:

John A. Boggs, Esquire

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

Mr. Don Allen, Esquire 600 S.W. 4th Avenue

Ft. Lauderdale, Florida 33315

Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

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

Docket for Case No: 82-003077

Orders for Case No: 82-003077