STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3006

)

COAST LINE PETROLEUM CORP., )

d/b/a TOMS TEXACO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on August 9, 1989, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Thomas A. Klein, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida

32399-1007

For Respondent: Mr. Thomas Przybylski, Jr., pro se

Coast Line Petroleum, Inc., d/b/a Toms Texaco

10670 Cypress Bend Drive Boca Raton, Florida 33498

STATEMENT OF THE ISSUES

By notice to show cause, petitioner charged that respondent, individually or through the acts of its agent/employee, violated the provisions of Section 562.11(1)(a), Florida Statutes, by selling an alcoholic beverage on its licensed premises to a person under the age of 21. Respondent requested a formal hearing on the charges, and the matter was referred to the Division of Administrative Hearings.

At the hearing, petitioner called three witnesses and offered three exhibits which were admitted into evidence. Respondent testified on his own behalf and offered no exhibits.

A transcript of the hearing was not ordered, and the parties were granted leave until August 21, 1989 to file proposed findings of fact. Petitioner timely filed proposed findings of fact and conclusions of law. A ruling on each of petitioner's proposed findings of fact has been made and is reflected in the

Appendix to this recommended order. On August 24, 1989, respondent filed a letter which is here deemed to be his proposed findings of fact; however, his filing was untimely.

FINDINGS OF FACT

1. At all times material hereto, respondent, Coast Line Petroleum, Inc. d/b/a Toms Texaco, held an alcoholic beverage license number 60-04813, series 2- APS for the premises known as Toms Texaco in Lantana, Florida at 401 N. Dixie Highway. Mr. Thomas Przybylski is the President of respondent and appeared on behalf of the licensee.

   
   

2. On or around April 4, 1989, petitioner's investigator conducted an investigation of respondent's licensed premises to determine if respondent was selling alcoholic beverages to underaged persons. The investigation was prompted by complaints received by petitioner from the Lantana Police Department.

   
   

3. Petitioner's practice in making such investigations was to employ an underaged person and send the underaged person onto the licensed premises to purchase an alcoholic beverage. The underaged person was instructed not to carry any form of identification and to respond truthfully if asked his age or for identification.

   
   

4. Julio A. More was employed by petitioner as an Investigative Aide. On April 4, 1989, following petitioner's instructions, Mr. More, who was eighteen at the time and appeared to be no older than his age, entered the licensed premises at issue. It was a busy afternoon at Toms Texaco. Mr. More picked a beer out of the inventory and attempted to purchase it from Mr. Przybylski, who was working that afternoon. Mr. Przybylski asked Mr. More if he had any identification to which Mr. More replied that he had none. Mr. Przybylski then sold Mr. More the beer. Petitioner's investigator witnessed the sale and confiscated the tendered beer.

   
   

5. Mr. Przybylski as an employee and officer of respondent sold an alcoholic beverage to an individual who was eighteen at the time of the sale. Accordingly, respondent is guilty of selling an alcoholic beverage to a person under 21 years of age. The proof demonstrated that petitioner has promulgated disciplinary guidelines for offenses similar to the one at issue; and that the appropriate penalty in this case would be the imposition of a fine of $1,000 and twenty-day suspension of the license.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. Section 561.29(1)(a), Florida Statutes authorizes petitioner to revoke or suspend a beverage license upon a showing 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....

8. Section 562.11(1)(a), Florida Statutes provides that:

   
   

   (1)(a) 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. The proof demonstrated that respondent violated Section 562.11(1)(a), Florida Statutes by selling an alcoholic beverage to an individual who was eighteen years old at the time of the sale.

   
   

10. In arriving at an appropriate penalty in the instant case, consideration has been given to the testimony of petitioner concerning its disciplinary guidelines. Based on the proof, the appropriate penalty in the instant case is found to be the imposition of an administrative fine of $1,000 and a twenty- day suspension of respondent's license.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on respondent an

administrative fine of $1,000 and suspending respondent's license for a period of twenty days.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of September 1989.

JANE C. HAYMAN

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 7th day of September 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO.89-3006

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3. Addressed in paragraph 4.

4. Addressed in paragraphs 3 and 4.

5. Addressed in paragraph 4.

6. Irrelevant.

7. Adopted in paragraph 5.

COPIES FURNISHED:

Harry Hooper, Esquire

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Thomas John Przybylski, Jr. Coast Line Petroleum, Inc. 10670 Cypress Bend Drive Boca Raton, Florida 33498

Lt. Debbie Pfitzenmaier Elisha Newton Dimick Building

111 Georgia Avenue, Room 207 West Palm Beach, Florida 33401

Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Leonard Ivey Director

The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Joseph A. Sole General Counsel

725 South Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 89-003006

Orders for Case No: 89-003006