STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-4475

) OLGA P. DE CARDENAS and ) COSSETE N. BATES, d/b/a ) SAVE-A-STEP, )

)

Respondents. )

)

RECOMMENDED ORDER

Consistent with the Order entered by Hearing Officer W. Matthew Stevenson on March 6, 1987, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Miami, Florida on May 26, 1987. The issue for consideration was whether Respondents' 2APS alcoholic beverage license should be disciplined because of the alleged violations outlined in the Notice to Show Cause filed herein.

APPEARANCES

Petitioner: W. Douglas Moody Jr., Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Respondent: Rene M. Valdez, personal representative 1830 Northwest 7th Street

Miami, Florida 33125

BACKGROUND

At some time prior to November 14, 1986, a Notice to Show Cause, outlining three separate incidents of the unlawful sale of alcoholic beverages to a minor was served on the Respondents, Olga P. DeCardenas and Cossete N. Bates, as licensees herein indicating the Division's intent to take disciplinary action against their license. Thereafter, On October 25, 1986, both Respondents submitted a request for a formal hearing in this matter to the Director of the Division of Alcoholic Beverages and Tobacco and on November 13, 1986, the file was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer. On January 2, 1987, W. Matthew Stevenson, Hearing Officer, advised the parties by Notice of Hearing, that a hearing would be held herein on March 10, 1987, but pursuant to a Motion to Continue filed by Respondents on March 2, 1987, an order was entered by Mr. Stevenson continuing the hearing to the present date when it was held by the undersigned as noticed.

At the hearing, the parties stipulated that the allegations contained in the Notice to Show Cause alleging the violations cited above were, in fact, true. Petitioner nonetheless presented the testimony of Beverly Jenkins, a Law Enforcement Sergeant with DABT and introduced Petitioner's Exhibits 1 and 2.

Respondents presented no evidence by way of testimony or documentation but Respondents' personal representative made an argument on their behalf.

Neither party submitted proposed Findings of Fact.

FINDINGS OF FACT

1. On November 7, 1985, Marcos E. Cardenas, store manager of the Save-A- Step store, the licensed premises operated by the Respondents, DeCardenas and Bates, at 11005 N.E. 6th Avenue in Miami, Florida, under 2APS alcoholic beverage license 23-01862, sold, gave, served or permitted to be served a six- pack of 12 ounce cans of Budweiser beer to E.O., an individual 18 years of age. As a result of this sale, which was observed by Officer Beverly Jenkins, the Respondents were issued an official notice indicating that the offense had taken place and what it was. The purpose of this violation notice is to give the Respondent/licensee a warning of the OABT's policy regarding sale of alcoholic beverages to minors and the laws of the State of Florida prohibiting such activity. Ordinarily a disciplinary charge does not result from a first offense.

   
   

2. Somewhat later, on February 5, 1986, however, the Respondents, this time through employee Enrique Mario Ribas, a clerk at the same store, also sold, gave, served or permitted to be served a 12 ounce container of Michelob beer to a 17 year old individual, K.A.W. On this second occasion, the Respondents were served with a final letter of warning indicating that this was the second offense and urging the licensees to strongly and personally address the problem. The licensee was also advised that if he or an employee violated the law for a third time, a Notice to Show Cause would be filed including past violations and as a result, the license would be subject to discipline.

   
   

3. Notwithstanding this, on May 28, 1986, Eric William Guzman, a store clerk in Licensees' facility, sold, gave, served or permitted to be served a 12 ounce can of Old Milwaukee Light beer to a 19 year old underage individual, H.M. All three violations took place on the licensed premises and all three constituted a violation of the statutes.

   
   

4. As a result of this third violation, and consistent with the terms of the final letter of warning, a Notice to Show Cause was filed alleging all three violations.

   
   

5. It is the policy of DABT to impose, for a third offense of this nature, a $1,000.00 fine and a 20 day suspension of the license. There is, however, an opportunity for this penalty to be mitigated and counsel for Petitioner stipulated that a suspension is not always included as an action for violations of this nature.

   
   

6. Mitigation activity, however, is that activity shown by the licensee to indicate what efforts he or she has made to prevent repeated actions of the nature involved here. It is not sufficient that the offending employee be discharged upon commission of the offense, though there was no evidence that was done here. Mitigation would be those actions take in advance of the offense, of a prophylactic nature, to insure as best as is possible that future offenses do

   not occur. Here, according to Sergeant Jenkins, who was present at the first violation, the licensees had displayed no signs or other indications on the licensed premises that individuals under the lawful drinking age would not be allowed to purchase alcoholic beverages. In short, Respondents offered no mitigation evidence to reduce the gravity of the offense. The personal representative's argument will be considered.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Section 562.11 Florida Statutes makes it unlawful for any person to sell, give, serve, or permit to be served alcoholic beverages to a person under

   21 years of age.

   
   

9. Sections 561.29(1)(a) and (3), permit the discipline of a licensee for a violation by the licensee or its agents, servants or employees, on the licensed premises or elsewhere in the scope of employment, of any laws of the state or the United States. Such discipline may include revocation or suspension of the license and a fine of $1,000.00 per violation.

   
   

10. In each of the three violations alleged in the Notice to Show Cause, Respondents are alleged to have violated laws of the state of Florida and these violations are not disputed. Consequently, disciplinary action against the licensees is appropriate. It should be noted that the actual Notice to Show Cause refers to Section 561.11 Florida Statutes rather than Section 562.11. This is obviously a scrivener's error and is immaterial.

    
    

11. Respondents urge that their license should not be revoked or suspended because there is provision made for mitigating circumstances to reduce the severity of any proposed disciplinary action and the fact that each offending employee was fired after each offense are mitigating factors. There was no evidence presented to demonstrate any mitigating factors. The discharges relied upon by Respondents were brought out in argument made by their personal representative. Argument is not evidence.

    
    

12. To the contrary, the evidence presented by Petitioner shows that no preventive action was taken by Respondents prior to or after the first offense. Claims that they will not offend again are not persuasive. No mitigating factors having been shown and three violations established, it is, therefore,

RECOMMENDATION

RECOMMENDED that Respondents' 2 APS alcoholic Beverage license number 23- 01862 be revoked.

RECOMMENDED this 15th day of June, 1987, at Tallahassee, Florida.

ARNOLD H. POLLOCK

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 15th day of June, 1987.

COPIES FURNISHED:

Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1000

W. Douglas Moody Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Rene M. Valdez, pers. rep. 1830 N.W. 7th Street Miami, Florida 33125

James Kearney, Secretary Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-4475

) OLGA P. DE CARDENAS AND COSSETTE )

1. BATES, d/b/a SAVE-A-STEP, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER

   
   

   COMES NOW the Director of the Division of Alcoholic Beverages and Tobacco, after clue consideration of the above styled cause enters this Final Order as follows:

   
   

   FINDINGS OF FACT

   
   

   1. The Division hereby adopts the findings of fact as entered by Hearing Officer Arnold H. Pollock as set forth in his Recommended Order of June 15, 1987 which is attached hereto as Exhibit A.

CONCLUSIONS OF LAW

1. The Division hereby adopts the conclusions of law as determined by Hearing Officer Arnold H. Pollock as set forth in his Recommended Order of June 15, 1987 attached hereto as Exhibit A.

CONCLUSION

After review of the record in this cause and reference to the penalty guidelines of the Division and noting the existence of no mitigating or aggravating circumstances, the Division hereby amends the penalty of revocation of alcoholic license number 23-01882 as recommended by Hearing Officer Arnold H. Pollock in his Recommended Order of June 15, 1987 attached hereto as Exhibit A and accordingly would state as follows:

1. Respondent shall remit to the Division a civil penalty in the amount of One Thousand dollars ($1,000.00) within 15 days of the date of this FINAL ORDER.

   
   

2. Respondent shall submit to a twenty (20) day suspension effective from the date of service of this FINAL ORDER upon licensee.

DONE AND ORDERED this 17th day of September 1987.

DANIEL J. BOSANKO, DIRECTOR

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1020

(904)488-7891

This Final Order may be appealed pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure, by filing a Notice of Appeal conforming to the requirements of Rule 9.110(d), Florida Rules

of Appellate Procedure, both with the appropriate District Court of Appeal and with this agency within 30 days of rendition of this Order, accompanied by the appropriate filing fees.

COPIES FURNISHED:

Rene N. Valdes

Qualified Representative 1830 N.W. 7th Street Mami, Florida 33125

W. Douglas Moody, Jr, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Docket for Case No: 86-004475

Orders for Case No: 86-004475