STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NOS. 89-6621

) 89-6622

NEGRIL COVE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled cases was held on March 23, 1990, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas A. Klein

Assistant General Counsel Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

For Respondent: Attorney Jerry S. Luxenburg

1214 East Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues in these cases are whether Respondent is guilty of serving alcoholic beverages to minors and, if so, what penalty is appropriate.

PRELIMINARY STATEMENT

By Notice to Show Cause filed July 14, 1989, Petitioner alleged that Respondent sold alcoholic beverages to four underage persons on June 10, 1989, in violation of Section 562.11(1)(a), Florida Statutes. By Notice to Show Cause filed August 16, 1989, Petitioner alleged that Respondent sold, gave, served, or permitted to be served alcoholic beverages to two underage persons on August 5, 1989, in violation of Section 562.11 Florida Statutes.

By separate letters dated October 12, 1989, Respondent requested a formal hearing on the charges.

At the hearing, Respondent requested a continuance. The request was denied. Petitioner called two witnesses and offered into evidence six exhibits. Respondent called no witnesses and offered into evidence one exhibit.

Petitioner's Exhibits One through Four consisted of a copy of the drivers' licenses and a photograph for each of four of the underage patrons. Respondent objected to these exhibits on the grounds of hearsay and best evidence. These objections are sustained as to the drivers' licenses, but not the photographs. However, Petitioner withdrew these exhibits.

Pursuant to leave, Petitioner filed on April 9, 1990, the deposition of Mary Ann Carmody. Respondent's objection to the use of the deposition of Staci Bailey was sustained.

No transcript was filed. Petitioner filed a proposed recommended order.

All proposed findings are adopted.

FINDINGS OF FACT

1. Respondent holds license number 58-01997, series 2-COP, for the retail sale of alcoholic beverages. The licensed premises were located at 536 West Church Street, Orlando, Florida.

   
   

2. Respondent abandoned the premises at the end of August, 1989. The bar owned and operated by Respondent is no longer in operation, and the license is no longer active.

   
   

3. On at least three occasions prior to the incident in question, one or more representatives of Petitioner had warned Lester Thomas, the sole shareholder and officer of Respondent, that he or his company's employees were serving alcoholic beverages to underage persons. On one of these occasions, Mr. Thomas complained, "Every time you come around here, there are problems. You catch me."

   
   

4. At about 11:15 p.m. on August 5, 1989, two representatives of Petitioner entered the Negril Cove bar and observed Mary Ann Carmody, age 16 years, consuming an alcoholic beverage that a companion had purchased from Respondent. At all material times on that evening, Mr. Thomas himself was tending the bar at Negril Cove. At no time was Ms. Carmody asked for any identification. Under the circumstances, Mr. Thomas permitted Ms. Carmody to consume the alcoholic beverage on the premises.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Petitioner is responsible for disciplining the licenses of persons authorized to sell alcoholic beverages. Section 561.29, Florida Statutes.

   
   

7. Petitioner may revoke or suspend the license of anyone authorized to sell alcoholic beverages for any violation, by the licensee or its employees, on the licensed premises, of any state law. Section 561.29(1)(a), Florida Statutes.

8. 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.

   
   

   Section 562.11(1)(a), Florida Statutes.

   
   

9. The prior warnings, young age of the underage patron, and attitude of Respondent's owner, who failed to appear at the hearing, warrant the revocation of the license.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking the license of Respondent.

RECOMMENDED this 23rd day of April, 1990, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1990.

COPIES FURNISHED:

Leonard Ivey, Director

Division of Alcoholic Beverages and Tobacco Department of Business Regulation

The Johns Building

725 South Bronough Street Tallahassee, FL 32399-1000

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

725 South Bronough Street Tallahassee, FL 32399-1000

Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, FL 32399-1000

Thomas A. Klein

Assistant General Counsel Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, FL 32399-1000

Jerry S. Luxenburg

1214 East Robinson Street Orlando, FL 32801

Docket for Case No: 89-006621

Orders for Case No: 89-006621