STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-2169

)

RAJENOR BAJRANGI, )

d/b/a QUICK STOP CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on June 28, 1989 in Sanford, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Harry Hooper, Esquire

Deputy General Counsel

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

For Respondent: Rajenor Bajrangi, pro se

1201 Airport Boulevard

Sanford, Florida 32771 STATEMENT OF THE ISSUES

Whether Respondent's beverage license should be disciplined by Petitioner, pursuant to Section 561.29, Florida Statutes, for allegedly selling an alcoholic beverage to a person under the age of 21 years on May 23, 1988 in violation of Section 562.11(11)(a), Florida Statutes.

PRELIMINARY STATEMENT

By Notice to Show Cause issued March 2, 1989, the Petitioner, Director of the Division of Alcoholic Beverages and Tobacco, alleged Respondent violated Section 561.29(1)(a), Florida Statutes. Based on these charges, the Petitioner seeks to discipline the Respondent's beverage license.

The Respondent disputed the charges and requested a Section 120.57(1), Florida Statutes, hearing. Thereafter, a formal hearing was held on June 28, 1989 in Sanford, Florida.

At the hearing the Petitioner presented three witnesses and offered into evidence two exhibits. Respondent testified on his own behalf and offered no other evidence. Petitioner submitted proposed findings of fact which are addressed in the Appendix to this recommended order. Respondent submitted a hand written letter.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant to this case, Rajenor Bajrangi held a valid Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter Division), license for the premises known as the Quick Stop Center (hereinafter licensed premises), license number 6k9-305, series 2-APS, located at 1201 Airport Boulevard, Sanford, Seminole County, Florida.

   
   

2. Underage operative Robert Scott assists the Sanford Police Department in determining whether or not licensed premises will sell alcoholic beverages to persons under the age of 21 years of age. Mr. Scott was born on April 17, 1969, and on Monday, May 23, 1988, he was nineteen years old.

   
   

3. On May 23, 1988, Robert Scott entered the licensed premise, walked to the back of the store, removed a 12 oz. can of Miller beer from the cooler, and proceeded to the check-out counter. He presented the beer to a man that he identified at the hearing as being Rajenor Bajrangi. Mr. Bajrangi, without requesting any identification, rang up the beer on the cash register and received from Mr. Scott the requested price for the beer. Mr. Scott departed the premise with the beer and met Officer Collison outside where Mr. Scott gave Officer Collison the Miller beer. At no time during this transaction did Mr. Bajrangi inquire as to Mr. Scott's age.

   
   

4. Officer Chris A. Collison of the Sanford, Florida, Police Department has been a police officer for over eight years. On May 23, 1988, about 10:00 p.m., he went in an unmarked car with another officer and Robert Scott to the licensed premises. He was able to observe Mr. Scott enter the licensed premises purchase the aforementioned beer and then depart the premises. The funds that Mr. Scott used to purchase the beer were provided by Mr. Collison. Mr. Collison received the Miller beer purchased by Mr. Scott from the hands of Mr. Scott. He identified the beer that was offered as Petitioner's Exhibit 2 as being the beer that was given to him by Robert Scott.

   
   

5. David E. Ramey is a law enforcement investigator for the Division of Alcoholic Beverages and Tobacco and he has been so employed for over eleven years. He inspected the can of Miller beer that was entered into evidence as Petitioner's Exhibit 2 and knows that the evidence was labeled as beer, that it was contained in an unopened can, that it had lithographed on the lid of the can the word "Florida," and that it bore the manufacturer's trademark. Investigator Ramey had the opinion that the substance in Petitioner's Exhibit 2 is beer.

   
   

   The usual penalty for a licensee selling to an underage person is a

   $1,000.00 civil penalty accompanied by a 20-day license suspension.

   
   

6. Mr. Rajenor Bajrangi testified that, on May 23, 1988, when Mr. Scott purchased the beer, there was a large group of rowdy people loitering in the vicinity of the licensed premise and that the police officers should have arrested these rowdy persons instead of trying to make an underage case against

   him. Neither the testimony of Officer Collison or that of Mr. Scott served to bolster Mr. Bajrangi's claim that he was diverted by the so-called rowdy persons and Officer Collison specifically stated that there were no distractions occurring in the vicinity of the licensed premise at the time the beverage was purchased. Considering the evidence as a whole, there was no credible evidence that Respondent was distracted at the time the beverage was purchased.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

   
   

8. Section 562.11, Florida Statutes, provides that 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.

   
   

9. Section 562.47(2), Florida Statutes, states that proof that a questioned beverage is contained in an unopened can labeled as beer, which has printed or lithographed on the lid the word "Florida" and which bears a manufacturer's trademark shall be prima facie evidence that such beverage is beer.

   
   

10. On May 23, 1988, the licensee served an alcoholic beverage to a person who was under 21 years of age. The beverage law does not provide a defense for a licensee in the case where the licensee's attention is distracted. Further, the evidence does not support the conclusion that the licensee was distracted in this case. Therefore, the licensee failed to exercise due diligence and is responsible for the sale of a beer to a minor. Cf. Surf Attractions vs. Department of Business Regulation, 480 So.2d 1354 (Fla. 1st DCA 1985).

    
    

11. In his proposed recommended order, Counsel for Petitioner suggests an administrative fine of $1,000 and a license suspension of 20 days as an appropriate penalty. There is no evidence of prior violations and no rules or guidelines regarding appropriate penalties. A range of penalties is available in Sections 561.29(1) and (3), Florida Statutes, and the recommendation for such a long suspension period for a first offense is not supported by evidence or argument.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding the licensee guilty of a

violation of Section 561.29(1)(a), Florida Statutes, and Section 562.11(1)(a),

Florida Statutes, and imposing a civil penalty of $1,000.00 and a three (3) day license suspension.

DONE AND ENTERED this 12th day of July, 1989, in Tallahassee, Leon County, Florida.

DANIEL M. MANRY

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 12th day of July, 1988.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Recommended Order Paragraph 1-6. Accepted

Respondent's letter dated July 4, 1989.

Did not dispute Petitioner's finding of fact but was in the nature of mitigation.

COPIES FURNISHED:

Harry Hooper, Esquire Deputy General Counsel

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

Rajenor Bajrangi

c/o Quick Stop Center 1201 Airport Boulevard

Sanford, Florida 32771

Leonard Ivey Director

Division of Alcoholic Beverages and Tobacco The Johns Building

725 S. Bronough Street Tallahassee, Florida 32399-1000

Stephen R. McNamara Secretary

Department of Business Regulation The Johns Building

725 S. Bronough Street Tallahassee, Florida 32399-1000

Joseph A. Sole General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 89-002169

Orders for Case No: 89-002169