STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-4934

) JAMES P. CARPENTER, d/b/a PONY KEG, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Naples, Florida, on February 19, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Respondent's alcoholic beverage license should be disciplined because of the alleged misconduct outlined in the Notice To Show Cause.

APPEARANCES

For Petitioner: Harry Hooper, Esquire

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

For Respondent: Christine Hissam, Esquire

Faerber and Miller

2335 Tamiami Trail North, Suite 505

Naples, Florida 33940-4482 BACKGROUND INFORMATION

On or about September 25, 1987, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, served a Notice To Show Cause upon the Respondent alleging that he had sold alcoholic beverages to an underaged person. Respondent submitted a request for formal hearing and the matter was set for hearing on February 19, 1988.

At the hearing, Petitioner presented the testimony of Alphonso Fontdevila, a Community Services Deputy for the Collier County's Sheriff's Office; Todd Philip Taylor, a Collier County Deputy Sheriff; and Stephen Tompkins, an employee of the Division of Alcoholic Beverages and Tobacco. Petitioner also introduced Petitioner's exhibits 1 through 3. Respondent testified in his own behalf and introduced Respondent's exhibit A. Petitioner's exhibit 2 and Respondent's exhibit A were relinquished to the custody of counsel for the Petitioner.

Subsequent to the hearing, Petitioner submitted a proposed recommended order containing proposed findings of fact, which have been accepted and incorporated herein.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained herein, Respondent, James P. Carpenter, held alcoholic beverage license number 21-429, Series 2-COP, issued by the State of Florida.

   
   

2. On August 6, 1987, Alphonso Fontdevila, a Community Service Deputy with the Collier County Sheriff's Office, and an individual under the age of nineteen, was on special detail with sheriff's deputy, Todd Taylor, checking out various liquor stores in the area to see if the operators were checking the age of purchasers. At approximately 9:00 p.m., Fontdevila and Taylor drove in an unmarked car to the Respondent's place of business, the Pony Keg, a drive through bar and restaurant located on U.S. 41 South in Naples, Florida.

   
   

3. Before Fontdevila entered the facility, Taylor got out of the car and went over to stand by some bushes to the side of the facility. Though concealed from sight, he could see what was going on inside the facility. He observed Fontdevila drive into the facility and up to the counter, where he was waited on by the Respondent, personally. Mr. Carpenter approached Fontdevila from behind the counter and asked what he wanted. When Fontdevila indicated he wanted a six pack of beer, Respondent gave it to him. Mr. Fontdevila paid Respondent $3.24, receiving change from a $5 bill. At no time did Mr. Carpenter ask for any identification or proof of age from Mr. Fontdevila. Having made the purchase, Mr. Fontdevila left the facility, picked up Mr. Taylor and returned to the sheriff's office.

   
   

4. Respondent claims no recollection of the purchase in question. However, he claims that on the date of the purchase, a Thursday, he was in his office working on the payroll. Though he usually has two people on duty in the facility, when necessary he comes out and serves patrons to speed service.

   
   

5. On the evening in question, trade was sporadic. When Fontdevila entered the facility, Carpenter had just come out of his office to help his sales' lady serve a line of cars and they were not working fast.

   
   

6. It is often difficult to get a good look at patrons when one is off to the side looking into a dark car, especially at night. It is difficult to tell if the person or patron is over age or not.

   
   

7. Respondent has a standard procedure at the Pony Keg which requires his employees to check identification. Because he understands kids will try to buy beer improperly, he emphasizes to all his employees the need to check identification and age. If he suspects a minor is trying to buy beer, the patron is normally refused service if he will not produce identification to establish age. In some cases in the past, his employees have called the sheriff's office to come to the facility when they suspect an underaged individual is making a purchase. However, since he has no authority to hold the patron, ordinarily the patron is gone by the time the sheriff's car gets there.

   
   

8. Mr. Carpenter was issued a citation in this case and tried in county court. The judge withheld adjudication and imposed court costs. The records of the Division of Alcoholic Beverages and Tobacco reflect that on November 16, 1983, Respondent was issued an official notice that an employee had been

   observed selling alcoholic beverages to an underaged individual and on April 23, 1986, the Respondent was issued a second official notice alleging similar misconduct.

   
   

9. Respondent has, since this latest incident, been instrumental in the establishment of a seminar for facility owners on methods of identifying patrons for age. He has also put his business up for sale.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

    
    

11. Under the provisions of Section 562.11, Florida Statutes, it is a violation for a licensee to sell alcoholic beverages to an individual under the age of twenty-one. Subparagraph (1)(b) of the same Section indicates that a drivers license, an identification card, or a passport is appropriate identification for determining legal age of an individual.

    
    

12. Section 561.29(1)(a), Florida Statutes, permits the Division to discipline an alcoholic beverage license for violation of the law committed by the licensee or his employees.

    
    

13. The evidence in this case clearly indicates that the Respondent sold a prohibited alcoholic beverage to an individual under the age of nineteen. By his own admission, Respondent failed to make any inquiry as to the Respondent's age and his failure to do so subjects him to discipline under the Statute.

    
    

14. In light of Respondent's two previous offenses for the same misconduct, disciplinary action of a more stringent nature is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is, therefore

RECOMMENDED that the Respondent's 2-COP alcoholic beverage license number 21-429 be suspended for thirty days and that he pay a fine of $500.

RECOMMENDED in Tallahassee this 29th day of March, 1988.

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 24th day of March, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-4934

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the Petitioner herein.

1-6. Accepted and incorporated herein.

COPIES FURNISHED:

Harry Hooper, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

Christine Hissam, Esguire Faerber and Miller

2335 Tamiami Trail North Suite 505

Naples, Florida 33940-4482 s

Daniel Bosanko, Director Division of Alcoholic

Beverages and Tobacco 725 South Bronough Street

Tallahassee, Florida 32399-1007

Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Joseph Sole General Counsel

725 South Bronough Street Tallahassee, Florida 32399-1007

Docket for Case No: 87-004934

Orders for Case No: 87-004934