Judges: D. R. ALEXANDER
Agency: Department of Business and Professional Regulation
Latest Update: Jun. 03, 1988
Summary: Insufficient evidence to prove that licensee sold beer to a minor.
88-1440.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
vs. ) CASE NO. 88-1440
)
JOSE LUIS RODRIGUEZ, d/b/a )
COMODORO GROCERY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 10, 1988, in Miami, Florida.
APPEARANCES
For Petitioner: Belinda G. Noah, Esquire
The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1007
For Respondent: Louis Lesperance, Esquire
1441 Northwest North River Drive Miami, Florida 33125
BACKGROUND
By amended notice to show cause issued on March 15, 1988 petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, charged that on December 30, 1987 respondent, Jose Luis Rodriguez d/b/a Comodoro Grocery, who holds a license to sell alcoholic beverages, sold an alcoholic beverage on his licensed premises to one Julio Vargas, a minor, in violation of Subsection 562.11(1)(a), Florida Statutes (1987). The Division accordingly seeks to take disciplinary action against respondent's license.
Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1987). The matter was referred by petitioner to the Division of Administrative Hearings on March 28, 1988, with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated April 25, 1988, the final hearing was scheduled on May 10, 1988 in Miami, Florida. The case was transferred from Hearing Officer Joyous D. Parrish to the undersigned on May 6, 1988.
At final hearing, petitioner presented the testimony of Oscar Santana and Hector Garcia, both Division investigators, and offered petitioner's exhibits 1 and 2. Only exhibit 1 was received in evidence. Respondent testified on his
own behalf and presented the testimony of Hiran Rodriguez, his grandson, and Teresita Cueto, his daughter, and offered respondent's exhibits 1 and 2.
Exhibit 1 was received in evidence while a ruling on the admissibility of exhibit 2 was reserved. The latter exhibit is the deposition of Julio Vargas taken in a separate proceeding.
This Recommended Order has been prepared without the benefit of a transcript of hearing and is based upon the undersigned's notes and recollection of the testimony given at hearing. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on May 25 and June 1, 1988, respectively. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.
The issue is whether respondent's alcoholic beverage license should be disciplined for the reason stated in the amended notice to show cause.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
At all times relevant hereto, respondent, Jose Luis Rodriguez, operated a small grocery store known as Comodoro Grocery at 1412 Southwest Third Street, Miami, Florida. The establishment has been issued license number 23-01096-2APS by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) . The license authorizes the package sale of beer and wine.
Around 6:00 p.m. on December 30, 1987 Division investigators Santana and Garcia visited respondent's licensed premises to ascertain whether narcotics were being sold. The visit was prompted by a complaint of unknown origin. 1/ After observing no sales on the premises, the two investigators each purchased a beer and left the establishment. They returned a few minutes later. While purchasing a second beer, they observed a young black male whom they believed to be a minor take a twelve ounce can of Budweiser beer out of the store refrigerator and carry it to the check-out counter. Respondent was working the cash register but did not ask the customer for an identification card. The customer handed respondent a one dollar bill, received some small change and left the premises with the beer in a paper bag. Investigator Santana followed the customer outside the store, stopped him, requested some form of identification and then confiscated the beer.
In response to Santana's request, the customer produced a "restricted driver's license." According to Santana, the license carried the name "Julio Vargas" and reflected a birth date showing that Vargas was a minor. However, this testimony is based upon hearsay declarations and does not supplement or explain other competent evidence of record. Thereafter, Santana and Garcia arrested both the customer and respondent. The customer was cited for being a minor in possession of an alcoholic beverage while respondent was charged with unlawfully selling an alcoholic beverage to a minor. The criminal charge against respondent was later dismissed in county court while the outcome of the case against the customer is not of record.
The customer (a/k/a Vargas) was not present at final hearing. Although the arresting officers contended that the customer was the same person whose name appeared on the license, and that he was a minor at the time he was arrested, there is no independent, competent proof of the customer's identity
and actual age, such as the testimony of the customer or a copy of the driver's license, birth certificate or other identification.
Respondent conceded that the customer in question carried a beer out of the store. However, he contended the customer was with his uncle who had already paid for the beer, that no money was taken from the customer and the nephew was simply retrieving already purchased merchandise. To the extent this version of the events conflicts with the eyewitness testimony of the investigators, it is rejected as not being credible. According to respondent's grandson, who was also working behind the counter that day, the customer paid for the beer but with money furnished by his uncle. However, no independent proof of this assertion was submitted.
Respondent has operated his store for some fourteen years. There is no evidence of any prior sales of alcoholic beverages to minors or disciplinary action taken against his license for any violation of state law or agency rules.
Respondent intended to present the customer as a witness at final hearing. However, when respondent arrived at the witness' residence on May 10, 1988 to transport him to the hearing, the customer was not there. The witness was not served with a subpoena by either party.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).
The Amended Notice to Show Cause alleges that on December 30, 1987 respondent "did sell alcoholic beverages on (his) licensed premises to Julio Varga (sic), a person under the age of 21, contrary to Section 562.11(1)(a), F.S." To substantiate this allegation, petitioner must prove by the preponderance of evidence that the illicit sale occurred.
Initially, the admissibility of respondent's exhibit 2 must be resolved. That exhibit is an eight-page deposition of Julio Vargas taken by respondent on February 19, 1988 in Case No. 88-50792, a criminal action in the County Court for Dade County filed against respondent by the State of Florida. The deposition reflects that the State was noticed for the deposition but did not appear. Respondent has offered the deposition in evidence essentially on the theory that the Division and State are one and the same party, and the State had an opportunity to appear and cross-examine the witness. Petitioner objects to the exhibit on the ground it was not a party to that case and had no opportunity to cross-examine Vargas. Clearly, the deposition is hearsay but is admissible under Subsection 120.58(1)(a), Florida Statutes (1987), to the extent it supplements or explains other competent evidence of record. For that limited purpose, it is received, although respondent has not pointed out which, if any, portion of the deposition supplements other competent evidence. 2/ While Subsection 90.804(2)(a), Florida Statutes (1987) , might appear to authorize the exhibit's admission, a close examination reveals the requirements of the statute have not been met In two respects. 3/ First, although the parties against whom the testimony is offered need not be identical, the Division must be "a predecessor in interest" to the State's right to prosecute. In other words, there must be a "mutual or successive relationship to the same right." Osburn v. Stickel, 187 So.2d 89, 91-92 (Fla. 3rd DCA 1966). If the Division's right to prosecute is not dependent upon the State's right to prosecute in the prior trial, then privity of parties does not exist. Osburn at 92. Since the
Division may prosecute the administrative charge irrespective of the outcome of the criminal trial, State ex rel DeGuetani v. Driskoll, 139 Fla. 49, 190 So.
461 (1939), the Division is not a "predecessor in interest." Secondly, the requirement that the witness (Vargas) be unavailable has not been met since respondent made no effort to subpoena the witness to compel his attendance. This being so, the provisions of Subsection 90.804(2)(a) do not apply.
At hearing, the undersigned sustained respondent's objection to the admission of petitioner's exhibit 2, a copy of the affidavit executed by the investigators when they filed criminal charges against respondent and Vargas. Since the exhibit's primary purpose was to establish that Vargas was a minor when he purchased the beer, and the information upon which that statement is based was derived from hearsay matters not supplementing or explaining other competent evidence, the objection was properly sustained. The remainder of the affidavit is cumulative to testimony given by the investigators at hearing and serves no useful purpose.
Respondent is charged with violating Subsection 562.11(1)(a) , Florida Statutes (1987) That subsection provides in part:
(1)(a) It is unlawful for any person to sell alcoholic beverages to a person under
21 years of age ...
The only competent evidence of record reveals that the arresting officer stopped a customer who had purchased a beer. All other pertinent information regarding the identity and age of the customer is hearsay in nature and is insufficient by itself to make findings that respondent sold a beer to a minor. Because the agency has failed to establish by a preponderance of evidence that a sale of beer to a minor occurred, the charge should be dismissed. 4/
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the charge against
respondent.
DONE AND ORDERED this 3rd day of June, 1988, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
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 3rd day of June, 1987
ENDNOTES
1/ Respondent and his family had previously made a number of complaints to the Miami Police Department concerning narcotic sales outside his store.
However, no complaints were lodged with the Division, and the investigators could not recall the source of the complaint which prompted their investigation.
2/ In his proposed order, respondent has submitted a proposed finding based upon a statement made by Vargas that he did not purchase the beer. Since this finding could only supplement respondent's similar testimony, which has been rejected in finding of fact 5, there is no competent evidence to justify its use.
3/ This subsection authorizes the admission of testimony given under oath during a deposition or trial and offered during a subsequent trial to prove the truth of the testimony if the issues in the prior proceeding are substantially the same, the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony through direct, cross or redirect testimony, and the witness is unavailable for the subsequent proceeding within the meaning of Subsection 90.804, Florida Statutes (1987).
4/ At hearing, petitioner suggested that respondent violated a Division "rule" or "requirement" by failing to ask for an ID card from the customer.
This belated allegation must also fail since it is not a part of the Amended Notice to Show Cause, and the Division did not request official notice of or cite any statute or published rule that imposes such a requirement. Further, there is insufficient record evidence to establish a nonrule policy on the subject.
APPENDIX TO RECOMMENDED ORDER
Petitioner:
Covered in finding of fact 1.
Covered in background.
Covered in finding of fact 2.
Covered in finding of fact 2.
Rejected as irrelevant or unnecessary.
Rejected as irrelevant or unnecessary.
Covered in finding of fact 2.
Covered in finding of fact 2.
Covered in finding of fact 2.
Covered in finding of fact 3.
Covered in finding of fact 3.
Covered in finding of fact 3.
Rejected as being a conclusion of law.
Covered in finding of fact 5.
Rejected as unnecessary.
Covered in finding of fact 5.
Respondent:
Covered in finding of fact 2 and footnote 1.
Covered in finding of fact 2.
Covered in finding of fact 2 except where rejected by footnote 2.
Covered in finding of fact 6.
COPIES FURNISHED:
Belinda G. Noah, Esquire The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1007
Louis Lesperance, Esquire
1441 Northwest North River Drive Miami, Florida 33125
Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco
The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1007
Joseph A. Sole, Esquire General Counsel
Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1007
Docket for Case No: 88-001440
Orders for Case No: 88-001440
