STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO )

)

Petitioner, )

)

vs. ) CASE NO. 89-6166

)

EUGENE AND JOAN FERRETTI, ) d/b/a GINO'S BEER AND WINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on April 4, 1990 in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Emily Moore, Esquire

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

For Respondent: French Davis, Esquire

2762 South Peninsular Daytona Beach, Florida 32118

STATEMENT OF THE ISSUE

Whether, under the facts and circumstances of this case, Respondent is guilty of the violations alleged in the Notice To Show Cause issued September 22, 1989 by the Director, Division of Alcoholic Beverages and Tobacco, Department of Business Regulation.

PRELIMINARY STATEMENT

On September 28, 1989, a Notice To Show Cause - Notice of Informal Conference issued by the Petitioner on September 22, 1989 was personally served on Joan Ferretti charging the Respondents with the sale of alcoholic beverages to a person under the age of 21 years on three different occasions, July 13, 1988, October 21, 1988 and March 11, 1989, in violation of Section 562.11(1)(a), Florida Statutes. On October 28, 1989 Respondents filed a Request For Hearing Petitioner referred the matter to the Division of Administrative Hearings and this proceeding ensued.

In support of its Notice To Show Cause, the Petitioner presented the testimony of Ronald P. Sullivan, Tina Decker May, John Szabo and Fred J. Dunbar.

Petitioner's exhibits 1, through 8 were received into evidence. Respondents offered the testimony of Eugene Ferretti but did not present any other witnesses or any documentary evidence.

No transcript has been filed with the Division of Administrative Hearings in this case. The parties timely filed their Proposed Findings of Fact and Conclusions of Law. A ruling on each Proposed Finding of Fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, the Respondents, Eugene and Joan Ferretti, d/b/a Gino's Beer and Wine (Gino's) held a Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) alcoholic beverage license for the premises known as Gino's located at 2012 South Atlantic Avenue, Daytona Beach Shores, Volusia County, Florida, license number 74-01399, series 2-APS

   
   

2. Eugene and Joan Ferretti are co-licensees for Gino'.

   
   

3. The Respondents stipulated that Gina Ferretti, employee and daughter of Eugene and Joan Ferretti, did on July 13, 1988 sell one 12 ounce can of Budweiser Light Beer, an alcoholic beverage, to a person under the age of 21 years and on October 21, 1988 did sell one 8 ounce can of Budweiser Beer, an alcoholic beverage, to a person under the age of 21 years, both sales being in violation of Section 562.11(1)(a), Florida Statutes.

   
   

4. On July 18, 1988 the Division gave the licensees Official Notice of the July 13, 1988 violation and advised the licensees that if a similar violation occurred in the future the licensees could be charged with the current violation along with any future violations.

   
   

5. On October 24, 1988 the Division advised the licensees of the October 21, 1988 violation and that this was a final warning before issuance of a Notice To Show Cause in the event of another violation which could subject the license to revocation or suspension.

   
   

6. Since the two incidents in which she was involved occurred, Gina Ferretti has had training concerning the sale of an alcoholic beverage to persons believed to be under the age of 21 years, and has not been involved in any other violations since October 21, 1988. Because Eugene Ferretti works in construction it is necessary for Gina Ferretti to help in running Gino's and, therefore, Gina Ferretti stills works in Gino's.

   
   

7. At all times material to this proceeding, Ms. Tina D. May worked with the law enforcement investigators of the Division in the Daytona Beach, Florida area as an underage operative to assist in determining whether licensed establishments were selling alcoholic beverages within their licensed premises to persons under the age of 21 years. Ms. May was instructed by the Division, as all underage operatives are, not to dress or act in such a fashion that is designed to entice the licensee to sell her alcoholic beverages without checking her identification to confirm her age or in any way lie about her age or use a false identification. Ms. May considered her work with the Division as a public service because her husband was killed in a alcohol related vehicular accident.

8. On March 11, 1989 Ms. May, then 20 years and 7 months of age, entered the licensed premises of the Respondent under the supervision of Ronald P. Sullivan, Investigator for the Division. Ms. May was casually dressed, wearing a white T-shirt with logo and blue jeans; her hair was brushed straight downward, and she wore no makeup. On March 11, 1989 Ms. May's appearance resembled that of a working person rather than that of a student on spring break.

   
   

9. After entering Gino's, Ms. May proceeded to purchase a 12 ounce can of Budweiser Light Beer, an alcoholic beverage. Eugene Ferretti was on duty at the time, and asked Ms. May if she was "21". Instead of responding that she was not "21", Ms. May handed Ferretti her Florida's driver's license with a yellow background indicating that the person identified in the license was under the age of 21 years when the license was issued. Ms. May's lack of a verbal response to Ferretti's question concerning her age was contrary to instructions given by Ronald Sullivan, to be "up front" about her age. The implication of Ms. May producing her driver's license in response to a question concerning her age, coupled with her appearance, led Ferretti to believe that she was "21", and resulted in Ferretti being less diligent than he should have been in reviewing Ms. May's driver's license. Due to Ferretti's lack of diligence he misread the 08 in May's birth date of 08/04/68 as an 03 and determined her birth date to be 03/04/68 rather than 08/04/68. Thinking she had just turned "21" on March 4, 1988, Ferretti sold Ms. May, a person under the age of 21 years, a 12 ounce can of Budweiser Light Beer, an alcoholic beverage.

   
   

10. Ms. May had never purchased or attempted to purchase an alcoholic beverage in Gino's before the time of this offense.

    
    

11. Ronald P. Sullivan was at the door of Gino's when Ms. May purchased the beer, but was unable to hear the conversation between Ferretti and Ms. May. Upon completing the purchase of the 12 ounce can of Budweiser Light Beer from Ferretti, Ms. May handed the beer to Sullivan who impounded it. Ferretti does not dispute the sale of the beer on March 11, 1989 to Ms. May, and allowed it to be introduced into evidence without objection.

    
    

12. The conversations between the Division's operative and Gina Ferretti during the sales on July 13, 1988 and October 21, 1988 were taped, which is the usual procedure so as to rebut any conflicting testimony concerning a conversations between the Division's operative and the person making the sale. However, the conversation at the time of the sale between Ferretti and Ms. May on March 11, 1989 was not taped.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Section 562.11(1)(a), Florida Statutes, makes it "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".

    
    

15. Section 561.29(1) and (3), Florida Statutes, empowers the Division to revoke or suspend the license of any person holding a license under Beverage Law for, among other things, violation of the laws of this state or to impose a

    civil penalty against a licensee for any violation arising out of a single transaction and to suspend the license of the licensee for a period of time specified by the Division upon failure of licensee to pay the civil penalty.

    
    

16. Section 562.11(1)(b), Florida Statutes., provides a defense to a violation of Section 562.11(1)(a), Florida Statutes, where certain conditions are met. Some of the conditions required for the defense to a violation of Section 562.11(1)(b), Florida Statutes, have been met in this case; however, unless all conditions are met the statutory defense to such a violation is not available.

    
    

17. It is the licensee's responsibility to determine the age of a customer before selling the customer an alcoholic beverage, and in making that determination the licensee must exercise due diligence. See Surf Attractions, Inc. v. Department of Business Regulations, Division of Alcoholic Beverages and Tobacco, 480 So.2d 1354(1 DCA Fla. 1986). While there are mitigating circumstances here, the licensee failed to exercise the necessary due diligence in determining the age of the Division's underage operative on March 11, 1989 before selling her an alcoholic beverage.

    
    

18. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegation of misconduct is based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (2 DCA Fla. 1977). The Petitioner has sustained its burden.

RECOMMENDATION

In making the following recommendation I am mindful of the Division's "guidelines" of imposing an administrative fine of $1,000.00 and a 20-day suspension of the license for the first offense of violating Section 562.11(1)(a), Florida Statutes, (selling an alcoholic beverage to a person under the age of 21 years) regardless of the circumstances surrounding the violation, which appear to conclusively presume that the penalty should be the same regardless of the facts and circumstances surrounding the violation without any consideration being given to mitigating circumstances, if any.

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding the violations, it is, therefore,

RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of violating Section 562.11(1)(a), Florida Statutes, and for such violations, considering the circumstances surrounding the violations, assess a civil penalty of $250.00 for each of the violations for a total civil penalty of

$750.00.

DONE AND ENTERED this 20th day of April, 1990, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 20th day of April, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6166

Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

2. Adopted in Findings of Fact 8, 9 and 11, except the last sentence which is rejected since the label on the can of beer does not indicate the alcohol content. However, the can of beer does have the word Florida? on its lid and bares the trademark "Anheuser-Busch" which is prima facie evidence of it being an alcoholic beverage as defined in Section 561.01(4)(a), Florida Statutes which was not rebutted. See Section 562.47(2), Florida Statutes.

3. Adopted in Finding of Fact 10.

4. Adopted in Finding of Fact 9, as modified.

5. Adopted in Findings of Fact 8 and 11.

6. Adopted in Findings of Fact 8 through 11.

7. Adopted in Findings of Fact 3 through 6, as modified.

8. Not necessary to the conclusion reached in this Recommended Order.

Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Adopted in Finding of Facts 1 and 2, respectively.

3. Adopted in Finding of Fact 7, but modified.

4.-8. Adopted in Findings of Fact 4, 5, 8, 9 and 11.

9.-10. These are restatements of testimony and not findings of fact, but see Finding of Fact 9.

11. Adopted in Finding of Fact 9.

12.-16. These are restatements of testimony and not findings of fact, but see Findings of Fact 8 and 9.

17.-18. Not material to the conclusion reached in this Recommended Order.

19. Adopted in Finding of Fact 12.

COPIES FURNISHED:

Leonard Ivey, Director

Division of Alcoholic Beverages and Tobacco

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Joseph A. Sole, Esquire General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Emily Moore, Esquire

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

French Davis, Esquire 2762 South Peninsular

Daytona Beach, Florida 32118

Docket for Case No: 89-006166

Orders for Case No: 89-006166