STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-0804

)

HAROLD HAFFNER, JR. and )

CATHERINE B. HAFFNER, d/b/a )

BAY'S PRODUCE MARKET, )

)

Respondents. )

)

RECOMMENDED ORDER

The final hearing in this case was held on August 10, 1989, in Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: John B. Fretwell, Esquire

The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondents: Robert H. Carlton, Esquire

1101 East Jackson Street Tampa, Florida 33602

and

Steven Royal, Esquire

209 North Brush Street Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in this case is whether the alcoholic beverage license of Harold Haffner, Jr., and Catherine B. Haffner, d/b/a Bay's Produce Market (Respondents) should be disciplined by the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner), based on actions they are alleged to have taken on October 18, 1988, in the sale of a can of beer to a person under 21 years of age.

PRELIMINARY STATEMENT

At the hearing, the Petitioner called James L. Leschner, and William P. Fisher. The Respondent Catherine B. Haffner testified on behalf of the Respondents. Two exhibits were introduced on behalf of the Petitioner.

No transcript of the final hearing was filed. A ruling on each timely filed proposed finding of fact filed by the parties is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondents have held an alcoholic beverage license issued by the Petitioner, number 39-02010-1-APS, and have done business at 6609 South Westshore Boulevard, Tampa, Florida, as Bay's Produce Market.

   
   

2. On October 18, 1988, Respondent Catherine B. Haffner sold a can of beer to James L. Leschner, whose birthdate is November 21, 1970. At the time of this sale, Leschner was 17 years of age.

   
   

3. At the time of this sale, Respondent Catherine B. Haffner testified that Bay's Produce Market was very busy since it was around noon. She did not check Leschner's identification, or even ask him his age. She testified that he looked 25 years old, and she simply assumed he was at least 21 years of age because he was approximately 6 feet 3 inches tall.

   
   

4. The Petitioner's investigator, William P. Fisher, disputed Respondent's testimony. The store was not very busy, and only three customers were in the store, including Leschner, Fisher, and one other investigator. Based upon the demeanor of the witnesses, the testimony of Fisher is found to be more credible than that of Respondent. It is, therefore, found that Bay's Produce Market was not filled with many lunchtime customers, but rather, only Leschner and two other people were in the store at the time Respondent sold him a can of beer.

   
   

5. Leschner did not show Respondent any false identification, or misrepresent his age. He was simply not asked for any identification, or about his age.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. Since this is a case in which the Petitioner is seeking to discipline the Respondents' license, and could thereby adversely affect their ability to continue to sell alcoholic beverages at Bay's Produce Market, Petitioner has the burden of establishing the basis for license disciplinary action by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

7. Petitioner has charged Respondents with violating Sections 562.11 and 561.29, Florida Statutes, in that they are alleged to have sold an alcoholic beverage, a can of beer, to a person under 21 years of age. It has been clearly and convincingly shown that Respondents have violated these statutory provisions by selling a can of beer to James L. Leschner on October 18, 1988, when he was

17 years of age. Respondent Catherine B. Haffner made no effort to ascertain if Leschner was at least 21 years of age, but simply assumed he was based upon his appearance. In any event, a person's appearance is not a defense which can be raised by a licensee when charged with selling alcoholic beverages to persons under 21 years of age.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Petitioner enter a Final Order suspending Respondents' license to sell alcoholic beverages for a period of thirty days, and imposing an administrative fine of $500.

DONE AND ENTERED this 28th day of August, 1989 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1989.

APPENDIX

(DOAH CASE NO. 89-0804)

Rulings on the Petitioner's Proposed Findings of Fact:

1. Adopted in Finding 1. 2-3. Adopted in Finding 2.

4. Adopted in Finding 3.

The Respondents did not file Proposed Findings of Fact.

COPIES FURNISHED:

John B. Fretwell, Esquire The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Robert H. Carlton, Esquire 1101 East Jackson Street Tampa, Florida 33602

Steven Royal, Esquire

209 North Brush Street Tampa, Florida 33602

Joseph A. Sole, Esquire The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Stephen R. MacNamara, Secretary Dept. of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Leonard Ivey, Director

Division of Alcoholic Beverages and Tobacco

The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Docket for Case No: 89-000804

Orders for Case No: 89-000804