STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3080

)

OKI and JOHN T. GROTHE, ) d/b/a CHEESE AND SPECIALTY ) CORNER, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 15, 1988, in Deland, Florida.

APPEARANCES

For Petitioner: Elizabeth C. Masters

Assistant General Counsel Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Sylvan A. Wells, Esquire

Post Office Box 5307

Daytona Beach, Florida 32018-1307 INTRODUCTION

On September 29, 1987, the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter referred to as the "Department"), issued a Notice to Show Cause - Notice of Informal Conference to the Respondents, Oki and John T. Grothe d/b/a Cheese and Specialty Corner. This Notice informed the Respondents that the Department had received information, which if true, constituted good cause to take disciplinary action against the Respondents' alcoholic beverage license. Following informal proceedings, the Respondents filed a Response to Order on Informal Proceeding dated February 29, 1988, requesting a formal administrative hearing. The request for formal hearing was referred to the Division of Administrative Hearings by letter dated June 22, 1988.

At the formal hearing the Department presented the testimony of Heather Waskiewicz, Patrick Girvan and J. E. Powell. The Department also offered three

exhibits which were marked as "Petitioner's" exhibits. Petitioner's exhibits 1 and 2 were accepted into evidence. A ruling on Petitioner's exhibit 3 was reserved. That exhibit is hereby accepted into evidence. The Respondents' argument that the Petitioner failed to demonstrate an adequate chain of custody for the exhibit is rejected. The exhibit and its contents were identified by Detective Girvan independently.

John T. Grothe testified on behalf of the Respondents. The Respondents offered no exhibits.

The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

ISSUE

Whether the Respondents' alcoholic beverage and tobacco license/permit number 74-00388 is subject to the assessment of a civil penalty, or should be suspended or revoked because of the sale of an alcoholic beverage to a person under the age of twenty-one years?

FINDINGS OF FACT

1. At all times relevant to this proceeding, the Respondents have been the holders of alcoholic beverage license/permit number 74-00388, series 2-COP, for the premises located at 4020 B Nova Road, Port Orange, Florida.

   
   

2. At all times relevant to this proceeding, the Respondents were doing business as the Cheese and Specialty Corner (hereinafter referred to as the "Corner").

   
   

3. John T. Grothe is a full-time electrical engineer employed by General Electric. Mr. Grothe helped Oki Grothe, his wife, operate the business after working hours at General Electric and on his days off. Mrs. Grothe was primarily responsible for running the Corner.

   
   

4. The Respondents had a policy of not selling alcoholic beverages to anyone under the legal drinking age.

   
   

5. On September 4, 1987, Mr. Grothe was working at the Corner. Mr. Grothe was behind the counter near the front of the Corner.

   
   

6. Detective Patrick Girvan entered the Corner on September 4, 1987. Detective Girvan was a Port Orange, Florida, police detective at the time but was not wearing his uniform.

   
   

7. Shortly after Detective Girvan entered the Corner, Officer Heather Waskiewicz entered the Corner. Officer Waskiewicz was also a Port Orange police officer on September 4, 1987. Officer Waskiewicz was not wearing a uniform.

   
   

8. Officer Waskiewicz, upon entering the Corner, went to the left of the Corner to a large wall cooler and began looking at the contents of the cooler.

   
   

9. The area of the Corner where Mr. Grothe was located was not busy. Only Officer Waskiewicz, Detective Girvan and another Port Orange police officer who had entered the Corner were in the area where Mr. Grothe was working. There

   were other customers in another area of the Corner where Mrs. Grothe was working.

   
   

10. Mr. Grothe asked Officer Waskiewicz if she needed any help. Officer Waskiewicz indicated that she did not.

    
    

11. Officer Waskiewicz selected a sealed bottle labeled Florida Wine Cooler from the cooler and took it to the counter where Mr. Grothe was standing. Officer Waskiewicz paid Mr. Grothe for the Florida Wine Cooler and Mr. Grothe put it into a paper bag. On the label of the Florida Wine Cooler it was indicated that the bottle contained 6 percent alcohol. The first ingredient listed on the label of the bottle was orange wine. At no time did Mr. Grothe ask Officer Waskiewicz her age or ask her for proof of her age. Nor did Officer Waskiewicz make any representation to Mr. Grothe concerning her age.

    
    

12. Officer Waskiewicz handed the paper bag with the sealed Florida Wine Cooler in it to Detective Girvan, who had witnessed the sale. Detective Girvan then notified Mr. Grothe that he had sold an alcoholic beverage to a person under the legal drinking age. Criminal charges relating to the sale were brought against Mr. Grothe.

    
    

13. Officer Waskiewicz was born on January 11, 1968. On September 4, 1987, Officer Waskiewicz was nineteen years of age.

    
    

14. Officer Waskiewicz was wearing black, high-heeled pumps and a black belt, a long-sleeve blouse and a skirt at the time of the sale of the wine cooler by Mr. Grothe. She described her dress as "casual" and as "appropriate for a work environment." Her hair was worn down on one side and in a ponytail on the other side. She wore some makeup.

    
    

15. Mr. Grothe believed that Officer Waskiewicz at the time of the sale had the bearing, visage and general appearance of a woman over the age of 21 years. Officer Waskiewicz is sufficiently young enough in appearance, however, even at the age of 20 years, that it could not be concluded conclusively that she was 21 years of age or older.

    
    

16. Officer Waskiewicz had never bean in the Corner prior to September 4, 1987, and had never purchased or attempted to purchase alcohol at the Corner prior to the purchase of the Florida Wine Cooler on September 4, 1987.

    
    

17. The Corner was closed subsequent to September 4, 1987, and is no longer in operation.

    
    

18. The Respondents have not been charged with any other violations relating to their beverage license.

    
    

19. The Department has a policy of imposing a $1,000.00 administrative fine and a 20-day suspension of license on licensees for the first offense of selling alcoholic beverages to a minor.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

21. This proceeding is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). Therefore, the applicable statutes in this case should be strictly construed and followed. Farzad v. Department of Professional Regulation, 443 So.2d 373 (Fla. 1st DCA 1983). Because the Respondents' license is at stake, the evidence presented by the Department to support the charges against them must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

22. Section 561.29(1), Florida Statutes, authorizes the Department to revoke or suspend the license of any person holding a license under the Beverage Law, as those terms are defined in Section 561.01(6), Florida Statutes, upon proof of:

    
    

    1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages . . . .

       
       

23. Section 561.29(3), Florida Statutes, authorizes the Department to impose a civil penalty against a licensee for any violation of the Beverage Law or any rule issued pursuant thereto. Civil penalties are "not to exceed $1,000 for violations arising out of a single transaction." Section 561.29(3), Florida Statutes.

    
    

24. Chapter 562, Florida Statutes, is part of the Beverage Law, as those terms are defined by Section 561.01(6), Florida Statutes. In this proceeding, the Respondents have been charged with violating Section 562.11(1)(a), Florida Statutes, which provides, in pertinent part:

    
    

    It is unlawful for any person to sell

    . . . alcoholic beverages to a person under 21 years of age . . . .

    
    

25. Finally, Section 561.01(4)(a), Florida Statutes, defines "alcoholic beverages" as "distilled spirits and all beverages containing one-half of 1 percent or more alcohol by volume."

    
    

26. The Respondents have not disputed the fact that a sale of a "Florida Wine Cooler" was made by Mr. Grothe to a person under the age of 21 years on September 4, 1987. The Respondents have argued, however, that the Department has failed to meet its burden of proving that a sale of an alcoholic beverage took place and its burden of proving that Mr. Grothe failed to use reasonable diligence to determine whether Officer Waskiewicz was under the age of 21 years.

    
    

27. The evidence in this case proved that Mr. Grothe sold a sealed bottle with a label identifying the product as a "Florida Wine Cooler". The label also indicated that the bottle contained 6 percent alcohol by volume. The first ingredient listed on the bottle is "orange wine". Although there was no evidence offered to specifically identify the chemical makeup of the ingredients of the bottle, the only reasonable conclusion which can be reached in this case is that the bottle contained a beverage (wine), containing more than one-half of

    1 percent alcohol by volume. The evidence concerning the name of the product, its alcoholic content and the ingredients in the bottle printed on the bottle constitutes competent substantial evidence of the contents of the bottle sold by Mr. Grothe to Officer Waskiewicz.

    
    

28. At the formal hearing the Petitioner argued that it had met its burden of proof concerning the contents of the Florida Wine Cooler pursuant to Section 562.47, Florida Statutes. As pointed out by the Respondents in their proposed recommended order, the Petitioner's reliance on this Section is misplaced. Section 562.47, Florida Statutes, specifically provides presumptions concerning proof of specifically enumerated beverages. It does not provide a presumption which applies to wine. The conclusion that Section 562.47, Florida Statutes, does not deal with wine, however, does not mean that the Petitioner has not otherwise met its burden of proof. The Respondent's argument overlooks the fact that Section 562.47, Florida Statutes, does not establish a limitation on the type of proof which will establish whether a container contains an alcoholic beverage; it does not establish a standard of proof which must be met in an administrative proceeding.

    
    

29. In an administrative proceeding such as this all that is necessary to prove a particular fact is the presentation of competent substantial evidence supporting the proposed fact. In determining what constitutes competent substantial evidence in a proceeding of this type, Section 120.58(1)(a), Florida Statutes, provides that "all evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts . . .

    ." The evidence presented in this case concerning whether Mr. Grothe sold an alcoholic beverage to Officer Waskiewicz is of a type that reasonably prudent persons would rely upon in the conduct of their affairs. Competent substantial evidence to support a finding that Mr. Grothe sold an alcoholic beverage has been presented in this case.

    
    

30. In support of the Respondents' argument that the Petitioner has failed to prove that Mr. Grothe did not exercise reasonable diligence in determining whether Officer Waskiewicz was 21 years of age or older, the Respondents have cited Cohen v. Scott, 48 So.2d 154 (Fla. 1950), and Surf Attractions, Inc. v. Department of Business Regulation, 480 So.2d 1354 (Fla. 1st DCA 1986). Based upon the court's decision in Surf Attractions the Respondents' argument that the Department must "prove lack of due diligence" on the part of Mr. Grothe in selling alcohol to a person under the age of 21 years is correct. The Respondents' argument that the Department has not met its burden in this case, however, is not correct.

    
    

31. The evidence proved that Officer Waskiewicz was 19 years of age at the time of the incident and 20 years of age at the time of the formal hearing. The evidence also proved that Mr. Grothe made no inquiry as to whether Officer Waskiewicz was 21 years of age or older. Finally, the evidence proved that Officer Waskiewicz, even at the age of 20 years, looks young enough that inquiry should have been made by Mr. Grothe as to Officer Waskiewicz's age. This evidence consisted of the appearance and bearing of Officer Waskiewicz at the formal hearing and her driver's license photograph. It is true that the Respondents presented evidence that tends to prove that Mr. Grothe believed that Officer Waskiewicz was 21 years of age or older. This evidence was insufficient, however, to refute the appearance of Officer Waskiewicz at the formal hearing.

32. Based upon the foregoing, it is concluded that the Respondents have violated Section 562.11(1)(a), Florida Statutes, by selling an alcoholic beverage, as defined in Section 561.01(4)(a), Florida Statutes, on the licensed premises to a person under 21 years of age. The Respondents, as licensees, have therefore violated the laws of Florida concerning the sale of alcoholic beverages. Their license is therefore subject to revocation or suspension under Section 561.29(1), Florida Statutes, and/or a civil penalty "not to exceed

    $1,000" for a violation arising out of a single transaction pursuant to Section 561.29(3), Florida Statutes.

    
    

33. The Department has sought the imposition of a $1,000.00 civil penalty and a suspension of the Respondents' license for twenty days. In support of this proposed penalty the Department offered evidence that the Department has a "policy" of imposing such a penalty on licensees who violate the beverage laws for the first time. Although the Department proved that it had such a policy the Department offered no proof that its policy is appropriate under the circumstances of this case. The Department has failed to establish the appropriateness of its policy. See Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So.2d 380 (Fla. 1st DCA 1985).

    
    

34. Based upon the evidence presented in this case, it is concluded that the Respondents should be subjected to a suspension of their license for twenty days and a civil penalty of $500.00. This penalty takes into account the fact that the Respondents have been charged with only one violation of the beverage laws, the fact that the Corner is no longer in operation and the fact that the sale of the wine cooler was an error in judgment on the part of Mr. Grothe.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondents be found guilty of violating Section

562.11(1)(a), Florida Statutes. It is further

RECOMMENDED that the Department suspend the Respondents' alcoholic beverage license for a period of twenty (20) days and impose a civil penalty of $500.00 on the Respondents.

DONE and ENTERED this 15th day of November, 1988, in Tallahassee, Florida.

LARRY J. SARTIN

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 November, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3080

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1-2.

2 7 and 11-14. The evidence failed to prove that Officer Waskiewicz purchased a "Seagram's Wine Cooler" (it was a Florida Wine Cooler) or that the label on the bottle indicated that the alcohol level was 4 percent (it was 6 percent).

3 11 and 16.

4 6 and 12.

1. Summary of the Respondents' position. See finding of fact 15.

2. See finding of fact 19.

The Respondents' Proposed Findings of Fact

The Respondents' proposed findings of fact have been accepted in paragraphs 1-5, 9, 11-12, 17 and 19.

COPIES FURNISHED:

Elizabeth Masters Deputy General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Sylvan A. Wells, Esquire Post Office Box 5307

Daytona Beach, Florida 32018-1307

Leonard Ivey, Director

Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street

Tallahassee, Florida 32301-1927

Van B. Poole, Secretary Department of Business Regulation

Division of Alcoholic Beverages & Tobacco 725 South Bronough Street

Tallahassee, Florida 32301-1927

Joseph A. Sole

Department of Business Regulation Division of Alcoholic Beverages & Tobacco 725 South Bronough Street

Tallahassee, Florida 32301-1927

Docket for Case No: 88-003080

Orders for Case No: 88-003080