STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-2313

) PIC-N-SAVE CENTRAL FLORIDA, INC., ) d/b/a PIC-N-SAVE DRUGS #44, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was held before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on August 2, 1990, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Emily Moore, Esquire

Assistant General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, FL 32399-1007

For Respondent: Simon W. Selber, Esquire

Suite 500

Edward Ball Building Jacksonville, FL 32202-4388

STATEMENT OF THE ISSUES

Whether Respondent failed to use due diligence to prevent the sale of alcoholic beverages to persons under the age of 21 years on September 20, 1989, October 18, 1989 and February 2, 1990, which warrants discipline of its beverage license.

PRELIMINARY STATEMENT

On February 13, 1990, Petitioner entered a Notice to Show Cause against Respondent in which alleged illegal activity was outlined, and in which Respondent was directed to show cause why its alcoholic beverage license should not be suspended, revoked, or otherwise disciplined. Respondent requested a hearing, and the file was forwarded to the Director of the Division of Administrative Hearings for the appointment of a Hearing Officer.

At the final hearing in this cause, Petitioner called as witnesses the following seven (7) persons: Ms. Milda Grabnickas, former cashier for Respondent; Officers Claude Cruce, Elizabeth Ann Doyle, Mark John Douglas, and Sgt. Rufus Blanton, all of the Orlando office of the Bureau of Law Enforcement, Division of Alcoholic Beverages and Tobacco; and Ms. Melissa Schuckman and Ms. Nicole Asbury, underaged operatives with the Orlando office of the Division of Alcoholic Beverages and Tobacco. Petitioner introduced into evidence 19 exhibits, and Petitioner's Exhibits 1, 12, and 15-19 were admitted over objection. Without objection, the Hearing Officer took official recognition of Section 561.29 and Section 562.11, Florida Statutes, and of Section 503 of the Division of Alcoholic Beverages and Tobacco Policy and Procedure Manual (T. 7- 8). Respondent introduced into evidence 5 exhibits. Petitioner objected only to Respondent's Exhibit 2; which was admitted over the objection.

The Respondent called Ms. Minerva M. Trillo, an employee of Respondent, Ms.

Roseann Gasparro, manager of Respondent's licensed premises at all times relevant to these proceedings, and Mr. Jim Pfeiffer, Director of Security for the Georgia and Florida Stores of Pic-N-Save Central Florida, Inc.

At the conclusion of the hearing, the parties were given 20 days to file Proposed Recommended Orders; however, Respondent ordered a transcript of the proceedings. The transcript was filed on August 22, 1990. The parties, then, had 10 days, or until September 4, 1990, to file Proposed Recommended Orders. After mutual agreement of the parties, the Hearing Officer, on August 30, 1990, extended the time for filing the Proposed Recommended Orders to September 5, 1990.

The following errors in the transcript of the proceedings are noted: Petitioner's Exhibit 9 is referenced on page 98 of the transcript; Petitioner's Exhibit 16 is a photograph of Ms. Asbury, taken on October 18, 1989, see (T.

204), rather than a "Brown Paper Bag", as noted in the transcript (T. 4); and introduction and acceptance of 2 of the 3 six packs of beer, Petitioner's Exhibits 18 and 19, are found on pages 223 and 224, in lieu of the pages referenced at (T. 4).

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

FINDINGS OF FACT

1. At all times material hereto, Respondent Pic-N-Save Central Florida, Inc., doing business as Pic-N-Save Drugs #44, held alcoholic beverage license number 69-00622, Series 2-APS, for the premises located at 940 S.R. 434, Longwood, Seminole County, Florida.

   
   

2. Notice of training programs, sponsored by the Division of Alcoholic Beverages and Tobacco, to assist licensees in the training of their employees to maintain compliance with the laws regarding sales of alcoholic beverages to underaged persons is provided to all licensees as a part of their renewal notices. Respondent renewed its license on September 1, 1989, after having received such a notice.

   
   

3. On August 10, 1989, Officer Cruce received a complaint about Respondent's licensed establishment from the Altamonte Springs Police Department. The nature of the alleged unlawful activity was the sale of alcoholic beverages to underaged persons.

4. On September 20, 1989, Ms. Nicole Asbury, born March 3, 1971, an 18 year old underaged operative with the Division of Alcoholic Beverages and Tobacco, entered Respondent's licensed premises under the supervision of Officers Elizabeth Doyle and Mark Douglas, Law Enforcement Investigators with the Division of Alcoholic Beverages and Tobacco. Asbury was casually dressed, and did not appear to be a person over 21 years of age. Asbury purchased a sealed six pack of Busch Beer, 12 oz. cans, from one of Respondent's cashier employees on the licensed premises. Respondent's employee, Ms. Patricia Ann Crabtree, neither requested identification from nor asked the age of Asbury. Asbury, while still at the licensed premises, turned the sealed six pack of Busch Beer over to Officers Doyle and Douglas, after the transaction was completed. After having it initialed for identification by Asbury, Doyle and Douglas, Officer Doyle secured the beer in a wooden box in the trunk of her car until the morning of September 21, 1989, when Officer Doyle and Sgt. Blanton placed it in the Division of Alcoholic Beverages and Tobacco evidence vault until its release for the hearing in this case. It was in substantially the same condition as on September 20, 1989.

   
   

5. Asbury had never purchased or attempted to purchase an alcoholic beverage in Respondent's establishment prior to September 20, 1989.

   
   

6. Following the incident on September 20, 1989, Officer Doyle provided Respondent, via its manager Ms. Roseann Gasparro, with Notice of "Warning and Instructions for Compliance regarding violation(s)" on the licensed premises. The notice advised the Respondent that Crabtree had been apprehended and encouraged Respondent to "immediately contact the District Director, Cpt. Jack Wallace, to discuss the problem". This notice is called a "Step 1 Notice."

   
   

7. On October 17, 1989, Respondent conducted a general meeting for all employees of the store to discuss security procedures throughout. The law against the sale of alcoholic beverages to minors was discussed and procedures for checking ID's were covered by Respondent's chief of security. Minerva Trill-Otevo was present and was trained at said meeting.

   
   

8. On October 18, 1989, Asbury, age 18, again entered the licensed premises. She was under supervision of Division of Alcoholic Beverages and Tobacco Officers Doyle and Smith and casually dressed, as instructed by the Officers, appearing to be a person under 21 years of age.

   
   

9. Asbury went to the back of the store and picked up a sealed six pack of Bud Light Beer. As she approached the front, she asked Ms. Minerva Trillo- Otero, an employee of Respondent if her register was open. Trillo said yes and proceeded to her register and sold the alcoholic beverages to Asbury. Trillo did not at any time during the October 18, 1989, transaction, either request identification from or ask the age of Asbury.

   
   

   After the transaction was completed, Asbury turned the beer over to Officer Doyle. Subsequent to having it marked and tagged for evidence by Asbury and the Officers, Officer Doyle and Sgt. Blandton placed it in the evidence vault, where it remained until its release for the hearing. It was in substantially the same condition as on October 18, 1989.

   
   

10. Petitioner issued a "Final Warning" letter on October 23, 1989, urging Respondent to personally address the problem, as a subsequent violation would invoke issuance of a Notice to Show Cause. Respondent was, again, encouraged to immediately make an appointment with the Division's representatives.

11. On February 2, 1990, Officers Doyle and Smith, Law Enforcement Investigators with the Division of Alcoholic Beverages and Tobacco, were being assisted by Melissa Schuckman, an 18 year old (born July 26, 1971), underaged operative. Schuckman and the Officers went to Respondent's licensed premises, where Schuckman purchased a sealed six pack of Coors Light Beer from Ms. Milda Grabnickas, a cashier in Respondent's employ. Ms. Grabnickas did not, at any time during the transaction, ask for identification from or request the age of Ms. Schuckman.

    
    

12. Schuckman is, and appeared at the time to be, a person under 21 years of age.

    
    

13. After purchasing the beer, as she was exiting the premises, Schuckman turned the beer over to Officer Doyle. Officer Doyle and Ms. Schuckman marked the beer and tagged it for identification, after which, Officer Doyle secured the beer as she had on the two previous occasions, and kept it in the evidence vault of the Division of Alcoholic Beverages and Tobacco until its release for the hearing. It was in substantially the same condition as on February 2, 1990.

    
    

14. As a result of the activity which occurred on February 2, 1990, Officer Doyle gave notice to Respondent via its representative, Ms. Gasparro, of the Petitioner's intent "to file administrative charges against your beverage license for violation of Florida Statute Section 562.11 . . . ." Subsequently, the February 13, 1990 Notice to Show Cause at issue in this case was rendered.

    
    

15. Pursuant to policy of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, administrative charges, i.e., Notices to Show Cause, are not issued until there are three instances of alleged unlawful sales of alcoholic beverages to underaged persons.

    
    

16. Respondent hosted a training program for all employees, conducted by Officer Cruce of the Division of Alcoholic Beverages and Tobacco, on February 26, 1990, at the request of Ms. Gasparro, the store manager. Although the request for the training program was made in late January, the third instance of unlawful activity had already occurred prior to the training program.

    
    

17. Despite a relatively high turnover of personnel, Respondent conducts, on the average, two security meetings per year. Compliance with the Florida Beverage license law is but one of several issues addressed at these meetings.

    
    

18. It is the Respondent's written policy to discharge an employee for violation of law or company policy.

    
    

19. Respondent has signs posted for cashiers and customers regarding the sale of alcoholic beverages to underaged customers at each register which read as follows: "If you were born after today's date 1969 you cannot purchase wine or beer."

    CONCLUSIONS OF LAW

    
    

20. 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.

    
    

21. Section 561.29(1), Florida Statutes (1989), authorizes the Division to invoke, or suspend a beverage license upon a showing of:

    1. Violation by the licensee or his 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 or of the United States, or violation of any municipal or county regulation in service, or consump- tion of alcoholic beverages . . .

       
       

22. Additionally, Section 561.29(3), Florida Statutes (1989), authorizes the Division to impose an administrative fine, not to exceed $1000, against a licensee for any violation of the beverage laws.

    
    

23. Section 562.11(1)(a), Florida Statutes (1989), makes it unlawful for any person to sell alcoholic beverages to a person under 21 years of age.

    
    

24. The burden is on Petitioner to establish the elements of the allegations in the Notice to Show Cause by substantial, competent evidence, that is, "such evidence as a reasonable man would accept as adequate to support a conclusion." Pauline v. Lee, 147 So.2d 359, 363 (Fla. 2d DCA 1962).

    
    

25. Petitioner has clearly shown, by competent evidence, that on September 20, 1989, October 18, 1989 and February 2, 1990, three different employees of Respondent did sell alcoholic beverages on the licensed premises to a person under the age of 21, in violation of Section 562.11, Florida Statutes, as alleged in the Notice to Show Cause.

    
    

26. It is the responsibility of the licensee and its agents to determine the age of customers prior to selling them an alcoholic beverage, and the licensee or its agents must exercise a reasonable standard of diligence in doing so. Woodbury v. State, 219 So.2d 47, 48 (Fla. 1st DCA 1969); Surf Attractions, Inc. v. Department of Business Regulation, 487 So.2d 1354 (Fla. 1st DCA 1986); Lash, Inc. v. Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982).

    
    

27. As Judge Rawls stated in Woodbury v. State Beverage Department, supra, at p. 48:

    
    

    [A] liquor licensee is not an insurer against violations of law committed on his premises by or through his employees. The licensee is responsible to determine who is underage, but since the inquisition into a charge of violation is equitable in nature and not criminal, he is held only to a reasonable standard of diligence. Before a license can be suspended or revoked, the licensee should

    be found by the Director to have been culpably

    responsible for such violation as a result of his own negligence, intentional wrongdoing or lack of diligence."

    
    

28. The Respondent sub judice failed to adequately train or instruct its employees so as to assure the exercise of reasonable or due diligence in ascertaining the age of Ms. Asbury and Ms. Schuckman, prior to selling alcoholic beverages to them. A reasonable person would have observed the demeanor and dress of Ms. Ashbury and Ms. Schuckman, and concluded that they were not of lawful age to purchase alcoholic beverages. Respondent's employees neither requested identification nor age information from either Ms. Asbury or Ms. Schuckman, and in fact, the evidence would indicate that they would have sold an alcoholic beverage to any customer appearing in their lines.

    
    

29. Although Respondent is not an absolute guarantor of compliance with the laws applicable to its licensed premises, three separate instances of sales to underaged persons on its premises is evidence of negligence, Davis v. Shiappacossee, 155 So.2d 365 (Fla. 1963), and is a sufficient basis for imposition of administrative sanctions. In addition, although Respondent had reminder signs at each register for its cashiers and customers, had occasional training on the beverage laws for its employees and a written policy that the sale of alcoholic beverages to a minor would result in termination of employment, this was not sufficient due diligence by the licensee to prevent the sale of alcoholic beverages to minors on multiple occasions.

    
    

30. Respondent cannot prevail on the defense of entrapment. In this case, because Petitioner is a law enforcement agency acting in good faith for the purpose of discovering or detecting whether criminal activity is occurring. Petitioner's mere furnishing the opportunity to commit a crime, by virtue of its presentation of underaged persons on Respondent's licensed premises, does not constitute entrapment.

    
    

    Petitioner's conduct was in accord with its outlined procedures. It was reasonably tailored to apprehend those involved in ongoing criminal activity. There is no evidence to indicate that Petitioner engaged in any conduct designed, or any effort to induce Respondent or its employees to sell alcoholic beverages to underaged persons. Gonzalez v. State, 525 So.2d 1005 (Fla. 3rd DCA 1988); Donaldson v. State, 519 So.2d 737 (Fla. 3rd DCA 1988); 14 Fla. Jur. 2d, supra; Filgueiras v. State, 291 So.2d 21 (Fla. 3rd DCA 1974).

    
    

31. Respondent's efforts to contest the age of both underaged operatives employed in this case on the basis of a hearsay objection is misplaced. A witness has been competent to testify as to his own age and date of birth since the early Common Law. This exception has been preserved in the Florida Evidence Code. Section 90.804(2)(d), Florida Statutes (1989).

    
    

32. The sale of alcoholic beverages to underaged persons is a serious and continuing problem within this state. Respondent's employees executed three sales of alcoholic beverages to underaged persons on Respondent's licensed premises. Respondent did not exercise due diligence in seeking assistance from Petitioner in addressing this issue or in insuring compliance by its employees through frequent instruction and direct supervision.

    
    

33. Respondent, as a licensee, is held to a high standard to ensure that its employees do not contribute to the improper use of alcoholic beverages by underage persons. Such extreme carelessness and negligence, as exhibited by Respondent, through its employees, in this case, cannot go unsanctioned. The

guidelines utilized by Petitioner for the imposition of administrative sanctions offers an appropriate penalty and calls for a civil penalty of $1000 and a 20- day suspension of its license.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be held responsible for failure to use due

diligence to prevent the sale of alcoholic beverages to persons under 21 years

of age on three occasions in 1989 and 1990; and it is FURTHER RECOMMENDED that Respondent pay a civil penalty in the amount of $1000 and serve a 20-day suspension of its alcoholic beverage license number 69-00622, Series 2-APS.

DONE AND ENTERED this 24th day of October, 1990, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 24th day of October, 1990.

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 Proposed Findings of Fact:

Accepted in substance:

Paragraphs 1,2,3,4,5,6,7,8,9,10,12,13,14,16,17.

Rejected as argument or irrelevant: Paragraphs 11,15.

Respondent's Proposed Findings of Fact:

Accepted in substance:

Paragraphs A (in part), C,D,E,F,M,N,O,S.

Rejected as not supported by the greater weight of the evidence: Paragraphs B,G,H,K,P.R.

Rejected as irrelevant: Paragraphs I,J,L,Q.

COPIES FURNISHED:

Emily Moore, Esquire

Department of Business Regulation The Johns Building

725 S. Bronough Street Tallahassee, FL 32399-1007

Joseph Sole Secretary

Department of Business Regulation The Johns Building

725 S. Bronough Street Tallahassee, FL 32399-1007

Simon W. Selber, Esquire Suite 500

Edward Ball Building Jacksonville, FL 32202-4388

Leonard Ivey Director

Division of Alcholic Beverages and Tobacco Department of Business Regulation

The Johns Building

725 S. Bronough Street Tallahassee, FL 32399-1000

Docket for Case No: 90-002313

Orders for Case No: 90-002313