STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF BUSINESS REGULATION, DIVISION ) OF ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1282

) ABC OIL COMPANY, t/a PORE JACK'S )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before Marvin

E. Chavis, duly designated Hearing Officer for the Division of Administrative Hearings, on May 26, 1983, in Orlando, Florida.

APPEARANCES

For Petitioner: James N. Watson, Jr., Esquire

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

For Respondent: Aldo Icardi, Esquire

Icardi Law Offices, P.A. Post Office Box 879

Winter Park, Florida 32790 INTRODUCTION AND BACKGROUND

This case involves the issue of whether the Respondent violated Florida Statute 562.11 (.1) by selling alcoholic beverages to a person under the age of

19 years of age. The Notice to Show Cause and accompanying documents were filed with the Division of Administrative Hearings on April 27, 1983, pursuant to a request for formal hearing by the Respondent on or about April 14, 1983.

At the formal hearing, the Petitioner called as witnesses David Aaron Morgan, Dennis Lee Morgan, Homer Kenneth Rigsby, and Claude E. Cruz. Respondent called as witnesses Shirley Ann Joiner, Donna Sue Steffenson, Gwendolyn Brown, Rosalie Lock, Claude Preston Gillenwater, and Daniel Edward Saboff. Petitioner offered and had received into evidence three exhibits, including a twelve-pack of Budweiser beer which was retained by counsel for the Division of Alcoholic Beverages and Tobacco. The Respondent offered and had admitted into evidence one exhibit which included a small plastic display reflecting the birthday prior to which a person must be born in order to purchase alcoholic beverages.

Pursuant to stipulation of counsel, the small plastic display was retained in the possession of the Respondent.

Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are - not adopted in this order, they were considered and determined to be irrelevant to the issues in this cause or not supported by the evidence.

FINDINGS OF FACT

1. At all times material hereto, the Respondent was the holder of a valid alcoholic beverage License No. 58-1090, Series 2APS.

   
   

2. Respondent is a corporation which owns and operates several convenience stores in the Orlando, Florida area.

   
   

3. On February 19, 1983, David Aaron Morgan purchased twelve cans of Budweiser beer at the Respondent's "Pore Jack's store located at 2233 Goldenrod Road, in Orlando, Florida. The purchase was made from a Mr. Claude P. Gillenwater, a clerk and employee at the store. Mr. Morgan had purchased beer from Mr. Gillenwater on at least three (3) prior occasions. At the time of his first purchase of beer from Gillenwater, David Morgan was required to show identification. He showed Mr. Gillenwater a restricted driver's license on which the year of birth appeared to be 1963. Mr. Morgan's date of birth is July 1, 1965. On February 19, 1983, Mr. Gillenwater did not check Mr. Morgan's identification. Mr. Morgan had never informed Mr. Gillenwater that he was underage. He knew Mr. Gillenwater would not serve him beer if he knew he was underage. The information on the restricted license was unclear because the license had been partially mutilated in the washing machine in the Morgan home.

   
   

4. David Morgan is in the eleventh grade at Colonial High School. He is 5'8" tall and weighs approximately 160-170 pounds. He wears a mustache and has for over a year.

   
   

5. After purchasing the beer, David Morgan left the store and walked to a car in the parking lot where two friends were waiting in a car. Mr. Morgan was observed leaving the store with the beer by Beverage Officers Homer Kenneth Rigsby and Claude E. Cruz. The beverage officers followed Mr. Morgan and his friends as they drove away from the store and stopped them a short distance away. Mr. Morgan was placed under arrest and taken to his home, where his parents were informed of the purchase of beer. It was then verified by a driver's license produced by Mr. Morgan's mother that he was, in fact, not of legal age to purchase alcoholic beverages.

   
   

6. Prior to the February 19, 1983, incident, Mr. Gillenwater had been an employee with Respondent for six (6) years. He worked different shifts on an as need basis and the Respondent had never received any complaints regarding the performance of his duties. At the time of his initial employment, Mr. Gillenwater received training and instruction regarding his duties and specifically his responsibilities in assuring compliance with the beverage laws. After his initial training , Mr. Gillenwater was required to work under the supervision of the manager of the store or an experienced cashier until he became familiar enough with the policies and procedures of the company. All employees, and specifically Mr. Gillenwater, were instructed in checking identifications and in the Respondent's strict policy against sales of alcoholic beverages to minors. Mr. Gillenwater was fired by Respondent as a result of this incident.

7. The store in question had a sign posted informing customers that they must be 19 years of age to purchase alcoholic beverages and that a Florida driver's license would be required as identification. (See Respondent's Exhibit 1.) There was also a sign reflecting the date prior to which a customer had to have been born in order to be able to purchase alcoholic beverages.

   
   

8. Respondent's employees were instructed to require a driver's license as identification each time a purchase of alcoholic beverages was made by anyone who appeared under 30 years of age. They were required to do this until they became familiar with the particular individual and recognized him on sight as a person who had previously provided proper identification. There was no evidence that Respondent had had any previous violations at the store involved or at any of its other stores. During most of the hours the store is open, a manager or assistant manager is on duty supervising the cashiers. Respondent had no notice or information that any of its employees were failing to follow its procedures regarding the requirement for proper identification.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

   
   

10. Section 561.29()(a), Florida Statutes (1981), empowers the Division of Alcoholic Beverages and Tobacco 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 the laws of Florida on the licensed premises. Florida Statute 562.11(1)(1981) makes it unlawful in Florida to sell, serve, or permit to be served alcoholic beverages to a person under 19 years of age.

    
    

11. The licensee is not, however, an insurer against violations of law committed on its licensed premises. Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). specifically, with regard to selling to minors, the First District Court of Appeal has held:

    
    

    The licensee is responsible to deter- mine 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 vio-

    lation as a result of his own negligence, intentional wrongdoing or lack of dili- gence. The record should contain sub- stantial competent evidence to support that finding. Id. at 48.

    
    

    License revocation proceedings, such as this, are penal in nature. The prosecuting agency must prove its charges by clear and convincing evidence and by evidence as substantial as the consequences of the particular action or violations charged. 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).

12. To establish negligence, it must be found that the licensee failed to exercise ordinary care in the maintenance of the premises or the supervision of its employees. See, Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979); Lash, Inc. v. Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982).

    
    

13. In the instant case, the evidence established that Mr. Gillenwater had, in fact, sold alcoholic beverages to a minor. The evidence also established that Mr. Gillenwater had been negligent in relying upon an unclear identification. However, the evidence did not establish any negligence or failure on the part of Respondent to properly supervise its employees. The evidence established proper instruction, training, and supervision on the part of Respondent. This was a single isolated incident which was considered by Respondent to be sufficiently serious to justify firing its long time employee, Mr. Gillenwater. By failing to prove that Respondent did not meet the reasonable standard of diligence to which it is held, the Petitioner has failed to prove the violation as alleged in the Notice to Show Cause. See Trader

Jon, Inc. v. State Beverage Department, 119 So.2d 735 (Fla. 1st DCA 1960)

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed.

DONE and ENTERED this 28th day of June, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS, 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 28th day of June, 1983.

COPIES FURNISHED:

Aldo Icardi, Esquire Post Office Box 879

Winter Park, Florida 32790

James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Mr. Howard M. Rasmussen Executive Director Division of Alcoholic

Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301

Mr. Gary Rutledge Secretary

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

Docket for Case No: 83-001282

Orders for Case No: 83-001282