STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-5244

)

BULK, INC., d/b/a SPANKY'S )

RESTAURANT AND LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on January 26, 1989, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Respondent's alcoholic beverage license should be disciplined because of the misconduct alleged in the Notice to Show Cause.

APPEARANCES

Petitioner: Harry Hooper, Esquire

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

Respondent: Wayne S. Timmerman, Esquire

308 South Fielding Avenue Tampa, Florida 33606

BACKGROUND INFORMATION

On September 23, 1988, the Director, Division of Alcoholic Beverages and Tobacco, (Division), served a Notice to Show Cause, issued on September 19, 1988, on Respondent alleging several instances on the part of Respondent involving the serving of alcoholic beverages to minors. On October 11, 1988, counsel for Respondent delivered a request for formal administrative hearing on behalf of his client, and thereafter the matter was referred to the Division of Administrative Hearings for appointment of a hearing officer. By Notice of Hearing dated November 8, 1988, the undersigned set the case for hearing on January 26, 1989 and the case was held as scheduled.

At the hearing, Petitioner presented the testimony of Laura Steuer, Jennifer Reagan, Sondra L. Arnold, and Stephanie Sanchez, all individuals who were served at the Respondent's facility on the night in question, and Betty Warner and William P. Fisher, both investigators with the Department.

Petitioner also introduced Petitioner's Exhibits 1 through 7. Respondent presented the testimony of David Clyde Bean, Vice President of Bulk, Inc., and Operations Director of Spanky's.

No transcript was provided Petitioner submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. Both counsel submitted written Arguments which have been considered by the undersigned in the preparation of this Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, Respondent, Bulk, Inc. held a 4-COP SRX alcoholic beverage license number 39-3188, issued by the petitioner, for the premises known as Spanky's located at 2556 East Fowler Avenue, Tampa, Florida.

   
   

2. At some time prior to 9:00 PM on July 14, 1988, Laura Steuer, born, July 29, 1969, "in the company of her friend Lynn Arnold, born August 21, 1968, entered the licensed premises without being asked by any employee of the Respondent for proof of age. The two girls had gone in for dinner and after eating, "hung out" there until nickel beer started at 10:00 PM. The girls had come in early to eat and to relax at the end of exams because they knew they would be served, having been served there before.

   
   

3. On this evening, after dinner, they were asked by the waitress if they wanted anything and when they asked for beer, were served a pitcher, which they consumed. Ms. Steuer has drunk enough beer to know that the substance she was served that night was beer. They were starting on their second pitcher at $4.00 per pitcher, when they were arrested. At that point in time, she had nothing in front of her because, when she heard the police were there, she dumped it on the floor. Neither girl was asked for identification or proof of age at any time that evening by any employee of the facility. Ms. Steuer had her legitimate driver's license and her University ID card in her possession at the time, and Ms. Arnold had her legitimate student ID and driver's license with her. Ms. Steuer knew she was not old enough to legally drink but did it anyway.

   
   

4. Ms. Arnold confirms Ms. Steuer's story, adding that it was her idea to come there because she had been there before and knew she would not be "carded." She indicates it was she who got the first pitcher of beer from the bartender. She was not asked for identification either at that time or when they bought the second pitcher from the waitress who came to the table. In her opinion, at the time of the arrest, there were less than 100 patrons in the establishment.

   
   

5. Stephanie Sanchez also was at Spanky's that night, arriving sometime between 7:00 and 8:00 PM. When she arrived, there was a line at the door waiting to be checked by the bouncer but neither she nor the friends she was with, all of whom were under 21, were asked for proof of age. When they got inside, they joined some other people whom she knew to be over 21 and ate with them. Ms. Sanchez had nothing to drink, but when she was later approached by the police during the sweep, she had just been given a cup of beer purchased for her by someone else from a bar in the back. By this time, it was after 10:00 PM.

   
   

6. Jennifer Reagan arrived at Spanky's at about 9:50 PM on the night in question to meet some friends. She had never been there before and knew nothing about it but was going at the suggestion of her friends. When she arrived with her male friend, there was a line of people outside waiting to be checked by the bouncer. Ms. Reagan is not yet 21, so her friend got someone else's ID for her with which she was able to gain entrance even though it was looked at by the bouncer at the door. The picture on the card, in her opinion, looked somewhat

   like her showing the same hair color and eye color and the age displayed was not

   28 or 29 but 21, much closer to her own age.

   
   

7. When inside, Ms. Reagan, who does not like beer or liquor, on advice of someone else ordered a "Long Island Iced Tea" at the bar where the bartender did not check her identification. Since she had tasted alcohol before, she could tell that the drink she got definitely had that substance in it.

   
   

8. Because the Department had received complaints of sales of alcoholic beverages to underage patrons, Ms. Warner and several other Department investigators, in conjunction with Sheriff's Deputies from Hillsborough County, were undercover in Spanky's on the night of July 14, 1988. She went in about 9:30 PM and described the place as a large facility with loud music, a large bar with people drinking out front and a smaller bar in the back. When she went in, there were two men checking identification at the door who seemed to be doing a thorough job. However, for one fifteen minute period, when one of them left the door, it did not seem to her that anyone was checking.

   
   

9. At 10:15 PM, when by prearrangement, the uniformed police arrived, she and her partner went to two booths where they felt underage patrons were drinking and asked for ID. The group, which included Steuer, Arnold, and Reagan, was all underage. When she checked the patrons' identifications, she found only one false ID card. There were less than 100 people in the facility at the time of the raid.

   
   

10. While she was in the bar, before the raid, she was approached by Greg Hawkins, an officer of Bulk, Inc., who said he knew her to be a policewoman and was sure they wouldn't find anyone underage on the premises because they were checking. He was wrong.

    
    

11. Mr. Bean, Vice President of Bulk, Inc., and manager of Spanky's was on duty there the night in question. He indicated the place has a standing policy which stated that no one under 21 could consume alcoholic beverages on the premises. In fact, he has a written slogan posted in the bar which reads, "When in doubt, keep them out."

    
    

12. Mr. Bean states he has tried on at least 7 occasions to set up classes with the Department agents for his employees to train them in what is required to operate properly. He got a book of sample driver's licenses and gave copies to all the doormen and waitresses so that they could effectively check proof of age. There was a special light placed at the entrance to show up altered identification cards. On Thursday nights, an active time, there are 5 people assigned to the door to check ID's and barkeeps and waitresses are also instructed to check. On the night of July 14, 1988, there were 4 people on the door checking who recognized and checked the beverage agents.

    
    

13. In Bean's opinion, people who appear to be under age should be checked before 9:00 PM by a waitress or bartender if they ask for an alcoholic beverage. In addition to all the above, management has devised a procedure to avoid the problem of underage people coming in before 9:00 and staying until after 9:00. At 9:00 PM the glassware changes from glass to plastic and in order to be served alcohol, one must have the plastic cup. To get the plastic cup, one must prove he is over 21. Unfortunately, this scheme has not always worked, but he believed that on July 14, 1988, everyone who was drinking in Spanky's was legal. In his opinion, his employees did everything they could to keep underage people out, and he, as manager has done everything he could do to train and convince his people of the need to enforce the law.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

15. Under the provisions of Section 562.11(1)(a), Florida Statutes It is unlawful for any person to sell,

    give, serve, or permit to be served

    alcoholic beverages to a person under 21 years of age or to permit a person under

    21 years of age to consume such beverages on the licensed premises. ...

    
    

    A licensee who violates that above-cited paragraph shall, under the terms of Section 562.11(1)(b):

    
    

    ... have a complete defense to any civil action therefor, except for any administrative action by the division under the Beverage Law, (emphasis supplied), if, at the time the alcoholic beverage was sold, given, served, or permitted to be served, the person falsely evidenced that he was of legal age to purchase or consume the alcoholic beverage and the appearance of the person was such that an ordinarily prudent person would believe him to be of legal age ...

    
    

16. Under the provisions of Section 561.29(1)(a), Florida Statutes, the Division is empowered to revoke or suspend the license of any license holder when it determines there is a:

    
    

    Violation by the licensee or his or its agents, ... servants, or employees, on the licensed premises, ... of any of the laws of this state ....

    
    

    Section 561.29(3), permits the division to impose a civil fine not to exceed $1,000.00 for each violation, and to suspend the license of a violator if the fine is not paid.

    
    

17. There is no doubt from the evidence presented that on July 14, 1988 Ms. Steuer, Ms. Arnold, and Ms. Sanchez were served alcoholic beverages, (beer), at their request, and Ms. Reagan some other alcoholic beverage on the licensed premises illegally because all were under the age of 21. This constitutes a violation of Section 562.11(1)(a). There is no doubt that the first three were not asked for identification at any time, either upon entry into the facility or thereafter. As to Ms. Reagan, her use of false identification, close as it appeared to be to her actual appearance, might well protect the license holder against liability in a civil suit, but by specific exclusion stipulated in the statute, it does not immunize it from action by the division for a violation of the Beverage Law, as here.

18. Therefore, it then becomes necessary to determine, given that the minors were illegally served, and there is scant evidence of efforts at enforcement by employees of the license holder, whether, under the circumstances, disciplinary action is appropriate.

    
    

19. Though Mr. Bean, the manager, was on the premises on the night in question, there is no evidence that he personally violated the laws, only the employees. However, a licensee has the obligation to maintain a sufficient intelligence with regard to his own establishment so as to know, at least generally, what his employees are doing, and his failure to do so constitutes a lack of reasonable diligence and a failure of proper management. G & B of Jacksonville, Inc., v. State, Department of Business Regulation, 371 So.2d 138 (Fla. 1st DCA 1979). Nonetheless, this case and others (See Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962); Golden Dolphin No. 2, Inc., v. State, Division of Alcoholic Beverages & Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981); also stand for the proposition that the licensee is not an absolute insurer against violations of the law on his premises even when committed by his employees and that an isolated violation or incident is not a basis for revoking a beverage license. However, where laws are repeatedly and flagrantly violated by employees, an inference arises that such violations were either fostered, condoned, or negligently overlooked by the licensee. Lash v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982).

    
    

20. Albeit Mr. Bean has repeatedly reminded his employees of the need to check for proof of age, and it would appear that at last a partial compliance is accomplished at the door, there is, nonetheless, a clear showing that once a patron is in the establishment, he or she is not checked again. In light of that fact that this is in a college area and the patronage of the establishment is made up heavily of college students; and in light of the fact that until 9:00 PM it is a restaurant open to all, there is a heavier burden on the license holder to insure that once the alcohol flows for some, the dike is firm to prevent underage patrons from imbibing. The evidence from all Petitioner's witnesses established that at no time did any waitress or bartender, those actually dispensing the beverage, ever ask for identification even at the beginning of the nickel beer period. Furthermore, there is no evidence any waitress or bartender was ever disciplined in any fashion for failing to comply with the carding requirements. This is clearly negligence on the part of the license holder.

    
    

21. Consequently, the evidence establishes that Ms. Steuer, Ms. Reagan, and Ms. Arnold, consumed alcohol on the premises, but that Ms. Sanchez did not. There is no evidence to support a finding that the allegations in the remaining Counts of the Notice to Show Cause have been proven. Ms. Warner indicated this operation was based on prior complaints of sales to minors and there is evidence that the place is known as a place where one can get served. However, there is no evidence that Respondent has been warned or cited previously. Since this is apparently a first action, revocation is not appropriate.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a Final Order in this case finding Respondent guilty of Counts (3), (4), and (9) of the Notice to Show Cause herein

and not guilty of the others, that Respondent's alcoholic beverage license be suspended for 90 days, and that it be assessed a civil penalty of $3,000.00.

RECOMMENDED this 22nd day of February, 1989 at Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-5244

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

By the Petitioner:

1. Accepted and Incorporated herein 2.-5. Accepted and Incorporated herein 6.-10. Accepted and Incorporated herein

1. Irrelevant

2. Accepted and incorporated herein

3. Not proven except for the last sentence which is accepted.

COPIES FURNISHED:

Harry Hooper, Esquire Van B. Poole, Secretary

Deputy General Counsel Department of Business

Department of Business Regulation Regulation 725 South Bronough Street 725 S. Bronough St.

Tallahassee, Florida 32399-1007 Tallahassee, Florida 32399-1000

Wayne S. Timmerman, Esquire

308 South Fielding Avenue Tampa, Florida 33606

Leonard Ivey, Director

Division of Alcoholic Beverages and Tobacco

725 S. Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 88-005244

Orders for Case No: 88-005244