STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-6962

) OB'S RESTAURANT AND LOUNGE, INC., ) d/b/a OB'S RESTAURANT AND LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Wil1iam R. Cave, held a formal hearing in the above- captioned case on February 13, 1990 in DeLand, Florida.

APPEARANCES

For Petitioner: Harry Hooper, Esquire

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

For Respondent: Joseph A. Scarlett, III, Esquire

208 West Howry Avenue DeLand, Florida 32720

STATEMENT OF THE ISSUE

Whether, under the facts and circumstances of this case, Respondent is guilty of the violation alleged in the Notice To Show Cause issued October 20, 1989 by the Director of the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation and filed herein.

PRELIMINARY STATEMENT

On October 26, 1989, a Notice To Show Cause - Notice of Informal Conference issued on October 20, 1989 by Respondent was personally served on the Ronald O'Brien, charging the licensee with the sale of one 12 ounce bottle of Budweiser beer, an alcoholic beverage, on the licensed premises to a person under the age of 21 in violation of Section 562.11(1)(a), Florida Statutes. Christine Shuter O'Brien, President of OB's Restaurant and Lounge, Inc., d/b/a OB's Restaurant And Lounge, filed a timely request for a formal hearing. The matter was then filed with the Division of Administrative Hearings on December 20, 1989 by the Petitioner and this hearing ensued.

In support of its Notice To Show Cause, the Petitioner presented the testimony of Camiel Long and Ron P. Sullivan. Petitioner's exhibits 1 through 4 were received into evidence. Respondent offered the testimony of Christine Shuter O'Brien, Kevin Cox and Lorraine Ware. Respondent's composite exhibit 1 (3 photographs A, B & C) were received into evidence.

No transcript was 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 Findings 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 oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this case, OB's Restaurant and Lounge, Inc. held a Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) license for the premises known as OB's Restaurant and Lounge (OB's), alcoholic beverage license number 74-2421 SRX, Series 4-COP, located at 913 Highway 17, Pierson, Volusia County, Florida.

   
   

2. Christine Shuter O'Brien, president of OB's Restaurant and Lounge, Inc. owns 100 per cent of the stock in the corporation. Ms. O'Brien has owned and operated OB's since July 1989.

   
   

3. Camiel Long, born July 3, 1969, who was 20 years of age on October, 1989, works with law enforcement investigators of District 12 of the Division, Daytona Beach, Florida, as an Investigation Aide in determining whether licensed establishments are selling alcoholic beverage within their licensed premises to persons under the age of 21 years.

   
   

4. On Saturday, October 7, 1989, Long met with Investigator Ron Sullivan for the purpose of Sullivan explaining the procedure used to effect underage investigation. At this time, Sullivan explained to Long that he would enter a licensed premises first and Long was to follow a few minutes later. Upon entry of the licensed premises Long was to approach the appropriate point of sale and ask to purchase an alcoholic beverage.

   
   

5. Long was instructed to carry his own personal Florida Driver's license and to present the driver's license upon request. Long's Florida driver's license depicted him as having a mustache. The photographs taken on October 7, 1989 depicts Long as being clean shaven, without a mustache.

   
   

6. One of the targeted licensed premises for October 7, 1989 was OB's because of a complaint received from the local police department.

   
   

7. At approximately 9:45 p.m. on October 7, 1989, Sullivan and Long arrived at OB's parking lot and Sullivan then entered OB's, with Long following in approximately five minutes.

   
   

8. Kevin Cox was in charge of checking identification (ID) at the door of OB's to keep out underage persons, and was in fact checking ID's at the door of OB's on Saturday night, October 7, 1989.

9. On Saturday night, October 7, 1989, at the time Long entered OB's and purchased the beer, the bar was quite busy, some customers were playing pool and a band was playing, as was normal on Friday and Saturday night

   
   

10. On Saturday night, October 7, 1989 there were several signs over the entrance to the bar at OB's indicating that proper identification was required and that it would be checked

    
    

11. When Long entered OB's, Cox was checking several other persons' ID cards, and did not stop Long to check his ID as he "skirted" around him because he appeared to be about the same age as those persons Cox was checking who were in the 24-25 year-old bracket according to their ID cards.

    
    

12. After entering OB's, Long found a seat at the bar, sat down, and ordered a Budweiser beer from Christine Shuter O'Brien who was tending bar at that time, along with Lorraine Ware. Ms. O'Brien opened a long-neck 12 ounce bottle of Budweiser beer, an alcoholic beverage, and served the beer to Long who paid Ms. O'Brien for the beer. Ms. O'Brien did not question Long's age or require any type of ID from him before selling and serving him the beer.

    
    

13. Upon receiving the beer and his change, Long turned and handed the beer to Sullivan, and Long left the premises.

    
    

14. Sullivan identified himself to Ms. O'Brien and advised her that he had observed her sell an alcoholic beverage to a person under the age of 21 years. Sullivan then requested that they move to area where they could speak. After moving to another area, Sullivan presented O'Brien with a Notice to Appear, in lieu of arrest.

    
    

15. Ms. O'Brien has had no previous Beverage Law violation in any establishment that she has owned, including one in DeLand and one in Illinois.

    
    

16. Ms. O'Brien's policy concerning the serving of alcoholic beverages is that if someone appears to be of age (21 years or older), then it is not necessary to request an ID to confirm their age. Both Kevin Cox and Lorraine Ware was aware of this policy, as well as other employees.

    
    

17. Lorraine Ware, through experience and having taken a course taught by the Division concerning serving underage persons, is aware that it is her responsibility to avoid serving an underage person alcoholic beverage. Ware has also received instruction from Ms. O'Brien not to sell alcoholic beverages to an underage person.

    
    

18. Long's appearance on Saturday night, October 7, 1989 and on the day of the hearing (February 13, 1990), four months later, was very similar, except for his clothing, and would cause an ordinary prudent person to question whether he was 21 years of age or older. Long's appearance should have caused both Cox and Ms. O'Brien to require him to confirm his age by some type of identification. O'Brien's failure to require confirmation of Long's age before selling him the beer on Saturday night, October 7, 1989 showed a lack of due diligence on her part, notwithstanding her presumption that Cox had checked Long's ID at the door, or the fact that she had several signs posted concerning the checking of ID's.

    CONCLUSIONS OF LAW

    
    

19. 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 (1989)

    
    

20. 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".

    
    

21. 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 mentioned in the Beverage Law, not to exceed $1,000 for violations 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 the licensee to pay the civil penalty.

    
    

22. Section 562.11(1)(b), Florida Statutes provides a defense to a violation of Section 562.11(1)(a), Florida Statutes, as follows:

    
    

    ... if, at the time the alcoholic beverage was sold, given, served, or permitted to be served, the person falsely evidenced that he was of legal age to purchase or consume the alcoholic beverage and the appearance of the person was such that an ordinary prudent persons would believe him to be of legal age to purchase or consume the alcoholic beverage and if the licensee carefully checked one of the following forms of identification: the person's driver's license, an identification card issued under the provisions of S. 322.051, or the person's passport, and acted in good faith and in reliance upon the representation and appearance of the person in the belief that he was of legal age to purchase or consume the alcoholic beverage. (Emphasis

    Supplied).

    
    

    None of the conditions for a defense to a violation of Section 562.11(1)(a), Florida Statutes, in the above-cited statutory language are present in this case.

    
    

23. Since this was a single violation committed by a corporate officer, the division may impose sanctions only where it is proven that there was a lack of due diligence by the corporate officer. Surf Attraction, Inc. v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 480 So.2d 1354, 1356 (1st DCA Fla. 1986).

    
    

24. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegation of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (2nd DCA Fla.

1977). The division has sustained its burden. Not only has the division shown a violation under Section 562.011(1)(a), Florida Statutes (selling alcoholic beverages to a person under the age of 21 years) but has shown that the corporate officer failed to exercise due diligence when making the sale of alcoholic beverages to the underage person.

RECOMMENDATION

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

RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of a violation of Section 562.011(1)(a), Florida Statutes, and for such violation assess a civil penalty of $500.00.

DONE AND ENTERED this 21st day of March, 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 21st day of March, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6962

Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-2. Adopted in Findings of Fact 1 and 3, respectively.

1. Adopted in Findings of Fact 4 and 5.

2. Adopted in Findings of Fact 6 and 7.

5.-9 Adopted in Findings of Fact 8, 12, 13, 14 and 12, respectively.

10. Adopted in Findings of Fact 2, 15.

11.-15. Adopted in Findings of Fact 16, 8, 18, 9 and 18, respectively.

16 Rejected as not being supported by substantial competent evidence in the record.

Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-3. Covered in Preliminary Statement.

1. Covered in beginning paragraphs.

2. Covered in Preliminary Statement and in Findings of Fact 5.

3. Adopted in Findings of Fact 5, as modified.

4. Adopted in Findings of Fact 4 and 5, as modified.

5. Adopted in Findings of Fact 7, 12 and 14, as modified, except for the last sentence which was rejected because O'Brien was not arrested but given Notice To Appear in lieu of an arrest.

9.-14. Rejected as being more of a restatement of testimony than proposed findings of fact, but if stated as proposed findings of fact then adopted in Findings of Fact 8, 9, 10, 12 and 17.

COPIES FURNISHED:

Stephen R. MacNamara, Secretary 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 32399-1000

Harry Hooper, Esquire

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-

Joseph A. Scarlett, Esquire

208 West Howry Avenue Deland, Florida 32720

Docket for Case No: 89-006962

Orders for Case No: 89-006962