Judges: ROBERT E. MEALE
Agency: Department of Business and Professional Regulation
Latest Update: Aug. 04, 1988
Summary: $250 fine for sale of beer to underage person
88-1759.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS )
REGULATION, DIVISION OF )
ALCOHOLIC BEVERAGES AND )
TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 88-1759
) KEITH A. and SANDRA LEE CREECH ) PETTINGILL, d/b/a EASTSIDE )
GROCERY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held on June 21, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
The representatives of the parties were as follows: For Petitioner: Harry Hooper, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
For Respondent: George C. Kelley, Esquire
368 East Main Street Post Office Box 1132 Apopka, Florida 32703
BACKGROUND
On March 14, 1988, Petitioner filed a Notice to Show Cause--Notice of Informal Conference alleging that, on February 26, 1988, Respondents unlawfully sold an alcoholic beverage to a person under the age of 21 years.
On April 4, 1988, Respondent filed a Request for Hearing.
Petitioner presented four witnesses. Respondent presented one witness.
Petitioner offered into evidence four exhibits. Respondent offered into evidence no exhibits. All exhibits were admitted into evidence.
Each party filed a proposed recommended order. Treatment accorded the proposed findings of fact is detailed in the Appendix.
FINDINGS OF FACT
Respondents currently hold a Series 2APS license, number 45-00254, for Eastside Grocery, which is located at 132 South Highway 33, Groveland, Florida. The current term of the license expires on September 30, 1988.
On February 26, 1988, Victoria Solozabal entered Eastside Grocery at about 4:25 p.m. Claude Cruce, a law enforcement investigator employed by Petitioner, entered the store directly behind her. Ms. Solozabal was acting under the direction of Mr. Cruce and another of Petitioner's investigators, Carl Lloyd, in assisting them in the detection of sales of alcoholic beverages to underaged persons.
Ms. Solozabal was born on August 23, 1969. Upon entering the store, she carried with her only her driver's license and a small amount of cash for the purchase of a single can of beer.
Ms. Solozabal went directly to an electric cooler in the back of the store, selected a chilled can of Budweiser beer, and took it to the checkout counter.
With Mr. Cruce directly behind her and Mr. Lloyd only a few feet away watching, Ms. Solozabal placed the beer on the checkout counter and took out a
$10 bill while Respondent Sandra Pettingill was ringing up the purchase. Ms. Pettingill demanded 75 cents, and Ms. Solozabal gave her the $10 bill. Ms.
Pettingill placed the bill in the cash register and returned the change to Ms. Solozabal.
At no time did Ms. Solozabal or any other employee of Eastside Grocery ask Ms. Solozabal her age or for proof of age. As Ms. Solozabal approached the door to leave the store, Mr. Cruce stopped her, demanded her identification, and seized the beer. He and Mr. Lloyd then informed Ms. Pettingill that she had sold an alcoholic beverage to an underaged person.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes.
Section 562.11(1), Florida Statutes, provides that it is unlawful for any person to sell alcoholic beverages to a person under 21 years of age.
Section 561.29(1), Florida Statutes, authorizes the revocation or suspension of the license of any person due to the violation by the licensee or its agents, on the licensed premises, of any state law regarding the service or consumption of alcoholic beverages.
Section 561.29(3), Florida Statutes, authorizes imposition of a civil penalty of not more than $1000 for violations arising out of a single violation set forth in the Beverage Law.
Petitioner must prove its allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)
RECOMMENDATION
Based on the foregoing, it is hereby
RECOMMENDED that a Final Order be entered finding Respondents guilty of selling an alcoholic beverage to a person under the age of 21 years and imposing a civil penalty in the amount of $250.
DONE and RECOMMENDED this 4th day of August, 1988, in Tallahassee, Florida.
ROBERT E. MEALE
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 4th day of August, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1759
Treatment Accorded Petitioner's Proposed Finding of Facts
Adopted.
Adopted in substance.
Adopted.
Rejected as subordinate.
5-6. Adopted.
Second 6. Rejected as irrelevant.
Adopted.
First sentence adopted. Remainder rejected as subordinate.
Adopted.
Rejected as subordinate.
Treatment Accorded Respondents' Proposed Findings of Fact
1-3. Adopted, except any resemblance between Ms. Solozabal and a regular customer of legal age is rejected as irrelevant.
4-5. Rejected as irrelevant. Ms. Pettingill testified that her normal procedure was to check proof of age before ringing up a sale. She also testified that Mr. Cruce asked about the couch drops only after she had taken the $10 bill from Ms. Solozabal. Mr. Cruce's request for cough drops thus had nothing to do with the sale, which had already been made.
COPIES FURNISHED:
Harry Hooper, Esquire
Department of Business Regulation 725 South Bronough Street
The Johns Building
Tallahassee, Florida 32399-1007
George Kelley, Esquire
368 East Main Street Post Office Box 1132 Apopka, Florida 32703
Van B. Poole Secretary
Department of Business Regulation 725 South Bronough Street
The Johns Building
Tallahassee, Florida 32399-1007
Joseph Sole General Counsel
Department of Business Regulation 725 South Bronough Street
The Johns Building
Tallahassee, Florida 32399-1007
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION
DIVISION OF ALCOHOLIC BEVERAGE AND TOBACCO
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,
Petitioner,
vs. CASE NO. DOAH 88-1759
KEITH A. and SANDRA LEE CREECH PETTINGILL, d/b/a EASTSIDE GROCERY,
Respondent.
/
FINAL ORDER
COMES NOW the Director, Division of Alcoholic Beverages and Tobacco and enters his Final Order in the above styled case pursuant to authority vested by Chapter 120, Florida Statutes.
Petitioner, Division of Alcoholic Beverages and Tobacco adopts in toto the Findings of Fact and Conclusions of Law in the Recommended Order of Robert E. Meale, Hearing Officer, Division of Administrative Hearings, issued August 4, 1988. However, exceptions to the Recommendation portion of the said Order are made and incorporated in the Division's Final Order as follows:
RECOMMENDATION
The Hearing Officer recommended that the Petitioner enter a Final Order finding the Respondents, Keith A. and Sandra Lee Creech Pettingill, guilty as charged under the single count of the Notice to Show Cause and imposing a civil penalty of $250.00. Petitioner adopts the Hearing Officer's recommendation only insofar as the Hearing Officer found the Respondent guilty as charged under the single count of the Notice to Show Cause. However, with regard to the penalty, it is ordered that for the offense of selling alcoholic beverages to persons under the age of 21 that a 20 day license suspension and a $1000.00 civil penalty shall be imposed. This deviation, pursuant to Section 120.57(1)(b)10, Florida Statutes, is made after a thorough and detailed review of the entire record including a verbatim transcript of the hearing and upon consideration of the recommended civil penalty for this offense set forth in the Division of Alcoholic Beverages and Tobacco Policy and Procedures Manual. This Policy and Procedures Manual establishes for the Division certain recommended penalties for various violations of the beverage law. These recommended penalties were developed after study over the years of penalties awarded by hearing officers at both formal and informal hearings and are designed to make consistent penalties awarded throughout the state much as Rule 3.701 of the Florida Rules of Criminal Procedure establishes sentencing guidelines. No reason was given by the Hearing Officer for his deviation from these guidelines although the recommended penalty in accordance with the guidelines was presented to him along with testimony as to how the guidelines were developed and how they are currently implemented.
Additionally, in deviating from the penalty recommended by the Hearing Officer, it is noted that the sale of alcoholic beverages to a minor, as reflected in the transcript of the hearing, is a serious and continuing problem within this state and therefore is a problem that must be dealt with firmly. This is particularly true when a licensee, granted the privilege by the state of selling alcoholic beverages, is the person who served the alcoholic beverage to the minor. The transcript of the proceedings reveals that this minor was served in a situation where no real attempt was made to ascertain the minor's age, and in which no concern whatsoever was exhibited toward enforcing the laws of the State of Florida with regard to serving minors. Furthermore, it is clear from the transcript of the proceedings that the Respondent exhibited no remorse and gave no indication of her realization of the seriousness of this act. This callous disregard for a law designed to protect the youth of our society is one that merits the punishment established by the Policy and Procedures Manual. For all of the above reasons, it is found that the Hearing Officers recommended penalty is inappropriate for the offense listed in the Notice to Show Cause and that the substituted penalty more nearly reflects the needs of the State of Florida, the citizens and the Respondent.
ORDER
Based on the foregoing, it is hereby ordered that alcoholic beverage license no. 45-00254, series 2-APS, shall be revoked. This revocation shall be lifted and the consequent impairment of Respondents qualifications shall cease upon receipt by the Division of a civil penalty in the amount of $1000.00 and service of a 20 day license suspension.
As an alternative to the 20 day suspension imposed above, Respondent may elect to pay an additional $1000.00, bringing the total amount of civil penalty to $2000.00 in resolution of this matter.
DONE AND ORDERED this 27th day September, 1988.
C. L. IVEY, DIRECTOR Division of Alcoholic
Beverages and Tobacco 725 South Bronough Street
Tallahassee, Florida 32399-1020
(904) 488-7891
COPIES FURNISHED:
Robert E. Meale, Hearing Officer Division of Administrative Hearings
Harry Hooper, Deputy General Counsel Department of Business Regulation
George Kelley, Esquire
368 East Main Street Post Office Box 1132 Apopka, Florida 32703
E.A. Raby, Asst. Chief Bureau of Law Enforcement Orlando District Office
Right to Appeal: Please see page (4)
RIGHT TO APPEAL
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.
Docket for Case No: 88-001759
Orders for Case No: 88-001759
