STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0100

)

LA COPA SUPERMARKET, INC., )

d/b/a LA COPA SUPERMARKET, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designed Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on February 24, 1987, in Miami, Florida.

APPEARANCES

For Petitioner: Louisa E. Hargrett, Esquire

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

For Respondent: Eduardo N. Colon, Esquire

1215 East Broward Boulevard Fort Lauderdale, Florida 33301

PRELIMINARY STATEMENT

At issue in this case is whether the alcoholic beverage license of Respondent should be revoked or otherwise disciplined for the sale of alcoholic beverages to underaged persons.

At final hearing Petitioner called as witnesses: Thomas L. Stout, Scott L. Spayd, Carol Houston, Neil Spayd, James H. Jenkins, Jr., Hector Garcia, Jeraldine E. Cutler, and Ralph L. Campbell. Petitioner's exhibits 1-9 and 11-15 were received into evidence. Respondent called as witnesses: Alicia Hernandez, Yolanda Martinez, Maria Mena, and Medavino Hernandez. Respondent offered no exhibits.

At the conclusion of the hearing the parties were granted leave until March 6, 1987, to file proposed findings of fact. Petitioner and Respondent filed proposed findings of fact in a timely manner, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto Respondent, La Copa Supermarket, Inc., d/b/a La Copa Supermarket, held alcoholic beverage license number 23-1995, series 2APS, for the premises located at 3940 East 4th Avenue, Hialeah, Florida.

   
   

2. On January 9, 1986, Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT), following a complaint of sales to underaged persons, began an investigation at the licensed premises. On that date, underaged volunteer, Scott Laurence Spayd (Spayd), date of birth June 5, 1968, entered the licensed premises under the supervision of DABT Investigator, Carol Houston. Spayd purchased a six-pack of Busch beer from Respondent's sales clerk, Alicia Hernandez, without any request for identification or inquiry concerning his age.

   
   

3. By notice dated January 13, 1986, DABT advised Respondent of the arrest of Ms. Hernandez for the foregoing sale of alcoholic beverages to an underaged person. The notice also advised Respondent that future violations could result in charges being filed against its license. /1

   
   

4. On February 4, 1986, underaged volunteer, James Jenkins (Jenkins), date of birth April 4, 1969, entered the licensed premises under the supervision of DABT Investigator, Hector Garcia. Jenkins purchased a can of Schaeffer beer from Respondent's sales clerk, Yolanda Martinez, without any request for identification or inquiry concerning his age.

   
   

5. By letter dated February 6, 1986, DABT advised Respondent of the arrest of Ms. Martinez for the foregoing sale of alcoholic beverages to an underaged person. The letter further provided:

   
   

   . . . Since this is our final warning to you, we would strongly urge you to personally ad- dress this problem. If you, your agents, ser- vants, or employees violate FSS 562.11 again, we will file a Notice to Show Cause, which will include past violations as well as any future violations, at which time your license will

   be subject to formal revocation or suspension proceedings.

   
   

6. On July 29, 1986, underaged volunteer, Jeraldine Cutler (Cutler), date of birth April 28, 1968, entered the licensed promises under the supervision of DABT Investigator, Ralph Campbell. Cutler purchased a four-pack of Champale Cooler, an alcoholic beverage, from Respondent's sales clerk, Maria Mena, without any request for identification or inquiry concerning her age.

   
   

7. Respondent does not dispute the sale of alcoholic beverages to underaged persons as detailed in the preceding paragraphs. Rather, Respondent contends that it has acted reasonably to curb such sales by posting signs near the cash register which state that it is unlawful to sell alcoholic beverages to under aged persons and by instructing its personnel to demand identification from youthful appearing persons. According to Respondent, its clerks are instructed to check the date of birth appearing on the patron's drivers license to insure they are 21 years of age.

8. In the instant case, each sales clerk averred that the underaged volunteer to whom she sold alcoholic beverages appeared to be of legal age. The clerks' testimony is not, however, credible.

   
   

9. None of the underaged volunteers appeared to be of legal age, and no ordinary prudent person could have concluded otherwise. Their youthful appearances, which were obvious at the hearing held over one year after the sales, were such that identification should have been checked. This conclusion is buttressed by the reaction of other licensees when faced with a request to purchase alcoholic beverages from the same volunteers. Spayd has been used by DABT in approximately 100 investigations and was refused service approximately

   75 percent of the time. Jenkins has been used 26 times and has been refused service 20 times. Cutler has been used approximately 60 times and has been refused service approximately 50 percent of the time.

   
   

10. In addition to averring that Cutler appeared to be 21 years of age at the time of the sale, Ms. Mena also averred that she was not aware at the time that Champale Cooler was an alcoholic beverage. Such assertion does nothing to bolster Respondent's defense since, if true, it demonstrates a basic failing in Respondent's efforts to prevent the sale of alcoholic beverages to underaged persons.

    
    

11. DABT's policy and procedure manual establishes a penalty guideline for cases of this nature. Where, as here, three sales of alcoholic beverages to underaged persons have occurred, and the licensee has been given written notice after the first and second offense, the prescribed penalty is a $1,000 civil penalty and a 20 day suspension of the license.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

13. Section 561.29(1), Florida Statutes, authorizes DABT to revoke or suspend a beverage license upon a showing of:

    
    

    1. Violation by the licensee or his agents, officers, servants, or employees, on the li- censed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or viola- tion of any municipal or county regulation in regard to the hours of sale, service, or con- sumption of alcoholic beverages. . . .

       
       

       And, Section 561.29(3), Florida Statutes, authorizes DABT to impose a civil penalty, not to exceed $1,000, against a licensee for any violation mentioned in the Beverage Law.

       
       

14. Pertinent to this case, Section 562.11(1)(a), Florida Statutes, provides:

    
    

    It is unlawful for any person to sell . . . alcoholic beverages to a person under 21 years of age. . . .

    This section does not, however, apply to persons born on or before June 30, 1966. Chapter 85-285, Laws of Florida.

    
    

15. The proof established that on three separate occasions Respondent's employees sold alcoholic beverages to underaged persons, who no ordinarily prudent person would have believed to be of legal age, without any request for identification or inquiry concerning age. Under the circumstances, the violations were sufficiently numerous as to compel the conclusion that Respondent fostered, condoned or negligently overlooked them. Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982), and Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be entered imposing a civil penalty of $1,000 against Respondent, and suspending Respondent's alcoholic beverage license for a period of 20 days.

DONE AND ORDERED this 17th day of March, 1987, in Tallahassee, Florida.

WILLIAM J. KENDRICK

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 17th day of March, 1987.

ENDNOTE

1/ On the first sale of alcoholic beverages to an underaged person, DABT issues an official notice which alerts the licensee that a sale has occurred and cautions it that future violations may result in charges against the license.

If a second sale is registered, DABT issues a final warning which apprises the licensee of the violation and urges it to address the problem. If a third sale is registered, charges are filed against the offender's license.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0100

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. First paragraph addressed in paragraph 9, second paragraph addressed in paragraph 3 footnote, and paragraph 3 rejected as not shown to be relevant.

3. Addressed in paragraph 2.

4. Addressed in paragraph 9.

5. Addressed in paragraph 3.

6. Addressed in paragraph 4.

7. Addressed in paragraph 9.

8. Addressed in paragraph 5.

9. Addressed in paragraph 6.

10. Addressed in paragraph 9.

11-15. Addressed in paragraphs 7-10.

16. Addressed in paragraph 11.

Respondent submitted a post-hearing "brief" consisting of 4 unnumbered paragraphs designated as factual matters. These paragraphs are denoted as 1-4, and addressed as follows:

1. Addressed in paragraphs 2, 4, and 6.

2. To the extent relevant, addressed in paragraphs 2, and 7-9.

3. To the extent relevant, addressed in paragraphs 4, and 7-9.

4. To the extent relevant, addressed in paragraphs 6, and 7-10.

COPIES FURNISHED:

Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Eduardo N. Colon, Esquire 1215 East Broward Boulevard

Fort Lauderdale, Florida 33301

Howard Rasmussen, Director

Division of Alcoholic Beverages and Tobacco Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32399-1000

James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Thomas A. Bell, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 87-000100

Orders for Case No: 87-000100