STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-3767

)

RICHARD N. AND ANNE JIOSNE ) t/a BEVERAGE CASTLE-BRANDON, )

)

Respondents. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on March 16, 1984, in Tampa, Florida.

APPEARANCES

For Petitioner: Louisa Hargrett, Esquire

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

For Respondents: J. Patrick McElroy, Esquire

Rutland Bank Building

1499 Gulf to Bay Boulevard, Suite 200 Clearwater, Florida 33515

ISSUES AND BACKGROUND

This case concerns the issue of whether Respondents' beverage license should be suspended or revoked or otherwise disciplined for sale of alcoholic beverages to a minor.

At the formal hearing, the Petitioner called as witnesses Ervin A. Hooper, Patricia Perkins, Christine Ellis, Paul C. Davis, and John Sokol. Petitioner offered and had admitted into evidence one exhibit. Respondent Richard N. Jiosne testified on behalf of Respondents and Respondents also called John Hanks as a witness. Respondents offered and had admitted two exhibits.

Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with the findings and conclusions in this order, they were rejected as being not supported by the evidence or as unnecessary to the resolution of this cause.

FINDINGS OF FACT

1. At all times relevant to these proceedings, the Respondents Richard N. and Ann N. Jiosne were the holders of beverage license No. 39-186, Series 2APS. The license is issued to a drive-through beverage establishment located in Brandon, Florida, and known as the Beverage Castle.

   
   

2. The licensed premise is a drive-through facility which sells beer, along with other grocery items and sundries. The Beverage Castle is operated by Mr. and Mrs. Jiosne, along with their son and an employee named John Hanks.

   
   

3. Late in the afternoon or early evening of July 22, 1983, Patricia Perkins and Christine Ellis drove into the Beverage Castle for the purpose of buying beer. They drove in and stopped and a young boy that appeared to be between 12 and 14 years old came to the car and asked what they wanted. The driver, Patricia Perkins, told him that they wanted a six pack of Michelob beer and he immediately went to a cooler and removed a six pack of Michelob beer and handed it to an older gentleman. The older gentleman then handed the beer to Patricia Perkins and collected her money for the beer. At no time was Patricia Perkins asked for identification. She had not purchased beer at this establishment previously. The young boy was Ritchie Jiosne, the son of Mr. and Mrs. Jiosne, the owners. The older gentleman was John Hanks, the evening manager of the Beverage Castle. On July 22, 1983, Patricia Perkins was 16 years old and her date of birth is December 30, 1966. The passenger in the automobile, Christine Ellis, at the time of the purchase was 17 years old and her date of birth is December 28, 1965.

   
   

4. Prior to Patricia Perkins and Christine Ellis entering the Beverage Castle, a deputy of the Hillsborough County Sheriff's Department had had the licensed premises under surveillance. He had observed several cars drive through with individuals who appeared to be young purchasing beer without being required to show identification. The officer also observed the purchase made by Patricia Perkins and Christine Ellis and observed no identification being shown by Patricia Perkins to either of the individuals working at the Beverage Castle that evening.

   
   

5. The owners have a policy against selling alcoholic beverages to minors. There is a sign posted next to the register which states:

   
   

   LOOK

   
   

   WE ABSOLUTELY

   DO NOT, WILL NOT, AND REFUSE TO SERVE

   ANYONE!, WHO IS ASKED AND DOES NOT HAVE PROPER

   I.D. HAVE YOUR CARD READY.

   
   

   The employees have been instructed to not serve alcoholic beverages to minors and to check identification.

   
   

6. The Beverage Castle has a reputation within the high school students of Brandon, Florida, as a place where minors can buy beer.

   
   

7. A prior violation was brought against the Respondents' license within the past year for sale of alcoholic beverages to a minor. That case resulted in

   recommended dismissal by the Hearing Officer and the Director of the Division of alcoholic Beverages and Tobacco adopted that recommendation and dismissed the case.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 561.29(1)(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.

   
   

10. 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 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. The record should contain substantial compe- tent 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).

    
    

11. 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); Rex Allen Jones v. Department of Business Regulation, Case No. AU-132 (Fla. 1st DCA 1984).

    
    

12. In the instant case the evidence established that an employee, John Hanks, did in fact sell a six-pack of beer to a minor. Prior to making this sale, Mr. Hanks was observed to have sold to several other young-looking individuals without checking their identification. The remaining issue is one of culpability. The owners have a policy against selling to minors and have so instructed their employees. There is a sign posted next to the register which states that alcoholic beverages will not be sold to persons who do not produce proper identification when asked.

13. The owners were on notice from a previous charge of at least a problem of minors attempting to buy beer at their establishment. The owners have an affirmative duty to supervise their employees and to take reasonable steps to assure that their policies are being followed. Although there is only one charge which is the subject of this case, the evidence established a persistent pattern of not checking the identification of patrons with a young appearance. Although the Respondents have a policy of checking identification and not selling to minors, there must also be reasonable steps taken to assure that the employers are following those policies. Merely instructing the employees and posting a sign is not reasonable supervision in light of Respondents' prior notice of minors purchasing or attempting to purchase alcoholic beverages at their establishment. Under these facts it is concluded that Respondents were negligent in not taking reasonable steps to assure that their employees were following the established policies. Respondents are therefore guilty of the violation alleged in the notice to show cause.

    
    

14. Penalty: In this case there has been no intentional wrongdoing on the part of Respondents. The evidence merely establishes negligence. The Respondents have taken some steps to establish policies and instruct their employees. These measures fell short of reasonable care. Under the circumstances it is concluded that an appropriate penalty is imposition of a civil penalty of $150.00.

RECOMMENDATION

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

That a final order be entered finding the Respondents guilty of the charge as set forth above and imposing a civil penalty of $150.00.

DONE and ORDERED this 8th day of June 1984, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 8th day of June 1984.

COPIES FURNISHED:

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

J. Patrick McElroy, Esquire

Suite 200 - Rutland Bank Building 1499 Gulf to Bay Boulevard Clearwater, Florida 33515

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Gary Rutledge, Secretary The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-003767

Orders for Case No: 83-003767