STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-4323

)

JEFFREY NELSON ADKINS, )

d/b/a BREW THRU, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in this case was conducted in New Smyrna Beach, Florida on September 12, 1985, before Mary Clark, Hearing Officer of the Division of Administrative Hearings. Appearances for the parties were as follows:

For Petitioner: Thomas A. Klein, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927

For Respondent: William Clay Henderson, Esquire

Henderson and Henderson, P.A. 630 Third Avenue, Spanish Plaza New Smyrna Beach, Florida 32069

ISSUES AND PROCEDURAL MATTERS

Respondent is charged with a single incident of selling beer to a minor. The issue is, therefore, if that incident occurred, what disciplinary action should be taken? The Division of Alcoholic Beverages and Tobacco Notice to Show Cause dated September 18, 1984, alleges:

On or about the 19th day of August, 1984, you, JEFFREY NELSON ADKINS, a licensed vendor, and/or your agent, servant or employee, did sell, give, and/or serve alcoholic beverages,

to wit: three (3) Michelob beers to a person, JOHN JOSEPH KELLAT, under the age of 19, contrary to F.S. 562.11(1).

At the hearing, by stipulation, six exhibits were admitted: the Notice to Show Cause, the Request for Hearing, Petitioner's Request for Admissions, Respondent's Answer to the Request, Petitioner's First Set of Interrogatories and Respondent's Response to Interrogatories, and Affidavit of the minor, John Joseph Kellat.

Petitioner called three witnesses: John Joseph Kellat; Rufus Blanton, beverage officer for the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco; and William Moore, a New Smyrna Beach police officer. Respondent also called three witnesses: Michael Block, an employee of Brew- thru during the summer of 1984; Troy Long, Market Manager at the Publix supermarket in New Smyrna Beach; and the Respondent, Jeffrey Nelson Adkins.

FINDINGS OF FACT

1. Respondent Jeffrey Nelson Adkins ("Jeff") has operated Brew-thru since March 1981. He is licensed by the State of Florida, Department of Business Regulation, DABT, under license number 74-1278, Series 2-COP.

   
   

2. Brew-thru is located at 600 Third Avenue, New Smyrna Beach, Florida. At the establishment patrons remain in their vehicles, drive through and make their purchase. It is one of a few places near the beach where people can buy beer.

   
   

3. During the relevant period, Brew-thru had three employees: Jeff, who worked everyday; Mike, who worked on weekends; and Linda, who worked week-days. Because of its proximity to the beach and the frequency with which minors attempt to make purchases, Brew-thru's policy is to check the I.D.'s of anyone who appears to be younger than twenty-five, unless the individual is known through a previous check. Often minors will be in the vehicle with someone who is old enough to legally purchase beer. In those cases, the sale is made to the individual who has the necessary identification.

   
   

4. The Respondent was once before charged with sale to a minor and resolved the charge with a stipulated fine of $250.00. The youth in that case was arrested with a case of Old Milwaukee, grain alcohol and two bottles of Michelob. Since Brew-thru did not carry Old Milwaukee or grain alcohol, it was charged only with the two bottles of Michelob. In another incident, when a mother complained that her son was purchasing beer from Brew-thru, an investigation revealed that the youth was using a fake I.D. card. Later, at the high school, several fake I.D.'s were confiscated. The Brew-thru was not charged with a violation.

   
   

5. John Joseph Kellat ("John") was seventeen years old on August 19, 1984, the date that he claimed to have purchased beer at Brew-thru. At the hearing he testified unequivocably that he purchased a six pack of Michelob from Brew-thru between the hours of 12:00 and 1:00 on Sunday, August 19th. He testified also that his girlfriend was with him and that he was not asked for an I.D. He said that about a week after the purchase he called the beverage department to report Brew-thru. He identified Jeff as the man he had pointed out to the beverage agents when he accompanied them to Brew-thru. John's affidavit dated August 21, 1984, identified the salesman who sold him the beer as ". . . about six foot two, one hundred ninety pounds."

   
   

6. Rufus Blanton, Beverage Officer for DABT testified that he was called on August 20, 1984, by John's mother, who was concerned that her son was buying liquor. Arrangements were made to interview John the following evening at the

   Kellat house. A girlfriend was mentioned by the mother and Blanton asked that she be included in the interview. Later, at the interview, when he talked with the girl she was confused at first, but then both she and John said she wasn't with him so the investigation was not pursued with her. Blanton and his co- worker instructed John to show them where he got the beer. With John giving directions, they drove directly to Brew-thru and John positively identified Jeffrey Adkins as the man who sold him the beer.

   
   

7. Frank Moore, New Smyrna Beach police officer, testified that numerous juveniles have told him that Brew-thru is the place to buy beer. He could remember the name of only one such youth, and conceded that in no instance has he had enough information to confront Jeff or make a case.

   
   

8. Michael Block ("Mike") was working at Brew-thru on August 19, 1984. As was his habit on Sundays, Jeff opened up then left to run errands. Mike worked alone until around 2:00 or 3:00 when Jeff returned with groceries for their cook-out. Except for a brief time around 4:00 p.m. when he went home to feed his dog, Mike was at Brew-thru all day. He testified that the instructions, which he followed, were to "card" anyone who didn't look 25. Mike is 5'10" and weighs 140-150 lbs.

   
   

9. Troy E. Long, Publix market manager, remembered seeing and talking to Jeff in Publix on Sunday, August 19th because he was in the process of selling Jeff a house. They talked for about 30 minutes sometime between 12:00 and 1:00, Long's lunch hour.

   
   

10. Jeff Adkins is a big man. At 6'6", 270 lbs., he is somewhat larger than the description on John Kellat's affidavit. He denied being at Brew-thru between 12:00 and 1:00 on August 19, 1984. Jeff said that his recollection of the events of that date are particularly vivid because two days later he was confronted by the Beverage Officers and a youth claiming to have bought beer from him. He testified that because of Brew-thru's novelty, minors try to buy beer there and often claim they have bought there. Because of this, he is "gun shy" and impresses on his employees the need to check I.D.'s.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in the proceeding. Section 120.57, Florida Statutes.

    
    

12. Subsection 562.11(1)(a), Florida Statutes (1983) makes it unlawful for any person to sell, give, serve or permit to be served alcoholic beverages to a person under 19 years of age. For violations of law on the licensed premises by the licensee, its agents, officers, servants or employees, Section 561.29, Florida Statutes, authorizes the Division of Alcoholic Beverages and Tobacco to suspend or revoke a beverage license or to impose a civil penalty of up to

    $1,000.00 per violation.

    
    

13. Before a license can be suspended or revoked, the record should contain competent substantial evidence to support a finding that the licensee was culpably responsible for violations as a result of his own negligence, intentional wrongdoing, or lack of diligence. G & B of Jacksonville, Inc., v. State Dept. of Bus. Reg. etc., 366 So2d 877 (1st DCA 1979); Woodbury v. State of Florida Beverage Dept., 219 So2d 47 (1st DCA 1969). The latter case involved a bar near a university which was particularly vulnerable to thirsty minors. The licensee left for a two-hour rest after telling his college student bartender to

    be careful to check all I.D.'s. A beverage agent caught a minor with beer in the establishment and the license was suspended; the charges were based on a single sale. The court reversed the suspension for lack of competent substantial evidence of the licensee's culpability.

    
    

14. The case here is similar to Woodbury supra. Here, however, the beverage officers did not observe the violation; they had to proceed on an account by the minor who allegedly made the purchase. As it developed at the hearing, that account included some disturbing inconsistencies: In front of the beverage agent, John Kellat positively identified Jeff Adkins as the man who sold him the beer. His affidavit described that person as substantially smaller than Jeff, yet also substantially larger than Mike, the only other employee on the premises the day of the alleged violation. John testified that his girlfriend was with him but during the investigation denied that she was with him. John said he called the beverage officer to report the violations.

    Officer Blanton said the report was from the youth's mother. Two days after the alleged event, John could not remember whether he purchased three beers or a six-pack; at the hearing he was sure it was a six-pack.

    
    

15. Assuming from that muddle one could distill a prima facie case that the sale was made, the Respondent effectively rebutted culpable responsibility. A credible disinterested alibi witness established that Jeff Adkins was likely not at the premises when the alleged sale was made. Brew-thru's reputation in the community was squarely addressed. Both the licensee and his employee described consistent and reasonable precautions to overcome that reputation. The stipulated resolution of a prior violation did not establish guilt and is not therefore competent substantial evidence of the truth of the prior charge. What is left is the agency's inherently inconsistent evidence of a single violation and insubstantial evidence of Respondent's culpable responsibility. The Petitioner has failed to meet its burden of establishing that any disciplinary action should be taken against the Respondent licensee.

CONSIDERATION OF PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Both parties submitted Proposed Findings of Fact and Conclusions of Law. Those have been carefully reviewed and considered. Findings of fact which are supported by the evidence have been incorporated herein, unless those findings are subordinate, cumulative, immaterial or unnecessary. More specifically, Petitioner's Proposed Finding of Fact #2, regarding the employee's failure to deny that he sold the beer, is wholly immaterial in light of Petitioner's chief witness' description of the salesperson and his identification of the licensee as the individual who made the sale. As to Proposed Finding of Fact #3, the only evidence that John Kellat purchased beer on prior occasions was his bare, non-substantiated statement to that effect. Such evidence is neither competent nor substantial when viewed in the context of his testimony as a whole.

RECOMMENDATION

On the basis of the foregoing, I recommend that the Director of the Division of Alcoholic Beverages and Tobacco enter a final order in this case dismissing the charge against the licensee.

DONE and ORDERED this 10th day of October, 1985, in Tallahassee, Florida.

MARY CLARK, 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 10th day of October, 1985.

COPIES FURNISHED:

Thomas A. Klein, Esquire Staff Attorney

Dept. of Business Regulation The Johns Bldg.

725 South Bronough Street Tallahassee, Florida 32301

William Clay Henderson, Esquire HENDERSON & HENDERSON, P.A.

Post Office Box 1840

New Smyrna Beach, Florida 32070-1840

Richard B. Burroughs, Jr. Secretary

Department of Business Regulation The Johns Building

725 S. Bronough Street Tallahassee, Florida 32301

Harold F. X. Purnell, General Counsel

Department of Business Regulation The Johns Bldg.

725 S. Bronough Street Tallahassee, Florida 32301

Howard M. Rasmussen, Director Division of Alcoholic Beverages

& Tobacco

725 S. Bronough Street Tallahassee, Florida 32301

Docket for Case No: 84-004323

Orders for Case No: 84-004323