STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-2315

) CONVENIENCE ALLEY, INC., ) d/b/a CONVENIENCE ALLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on August 29, 1990, in Melbourne, Florida.

APPEARANCES

For Petitioner: Robin L. Suarez

Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007

For Respondent: Linda J. Beard

Vice-President/Secretary Convenience Alley, Inc. 5020 Minton Road, N.W. Palm Bay, FL 32907

STATEMENT OF THE ISSUES

A notice to show cause dated February 21, 1990, alleges that Respondent licensee sold beer to a person under the age of 21 on three occasions. The issue for determination is whether those allegations are true, and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

Linda Beard, Vice-President/Secretary responded to the notice with a timely written request for a hearing.

At the commencement of the hearing Petitioner filed a motion to amend the notice to show cause to correct a scrivener's error in the citation to authority in the first allegation of the notice. The statute is properly cited elsewhere

in the notice. The motion was granted, over Respondent's objection, as no prejudice could be shown in spite of the last minute change.

Petitioner presented the testimony of the following eight witnesses: Agents Gordon Myers and Kenneth Rigsby, Investigating Officers in the Division of Alcoholic Beverages and Tobacco; Officer Ron King, Melbourne Police Department; Officer Paul Scholem, Palm Bay Police Department; James Core, George Madden and Amy Dvorak, under-aged operatives for the Rockledge Office of the Bureau of Law Enforcement, DABT; and Linda Beard, Vice-President/Secretary and authorized representative of licensee, Convenience Alley. Ms. Beard also testified on Respondent's behalf and produced the testimony of Keith Lewis, an employee of Convenience Alley.

Petitioner's fourteen exhibits were received in evidence, including two 6- packs of Budweiser beer, Petitioner's exhibits #5 and #7, which were returned to the custody of the Division of Alcoholic Beverages and Tobacco. Respondent's seven exhibits, also received in evidence, included exhibit #2, a videotape of the law enforcement operation the evening of April 29, 1989.

The parties filed proposed findings of fact on September 10, 1990 (Petitioner) and September 17, 1990 (Respondent). These have been considered, and specific rulings on the proposed findings are included in the attached appendix.

FINDINGS OF FACT

1. At all times material, Respondent, Convenience Alley, Inc. held alcoholic beverage license number 15-019272-APS, for the premises located at 5020 Minton Road NW, Palm Bay, Brevard County, Florida.

   
   

2. On Saturday April 29, 1989, at the request of the City of Palm Bay Police Department, the Division of Alcoholic Beverages and Tobacco (DABT) participated in a joint operation with the Palm Bay police and the City of Melbourne police. The law enforcement agencies had received a series of complaints regarding the sale of alcohol to minors in the Palm Bay area.

   
   

3. In the early evening, sometime between 6:00 p.m. and 7:00 p.m., Amy Dvorak, a 17-year old underaged operative working with Sgt. Gordon Myers, an investigator with DABT, entered Respondent's licensed premises and purchased a sealed 6-pack of Budweiser beer from the clerk, Lisa McCormick. The clerk did not ask Ms. Dvorak's age and did not request her identification.

   
   

4. Like all other underaged operatives working with DABT, Ms. Dvorak had parental permission to participate. She wore light makeup and appeared to be under 21 years of age at the time of the operation. She was casually dressed and her face and hair were fully exposed. Ms. Dvorak was instructed to carry legitimate identification and to produce it, or respond truthfully if requested.

   
   

5. Convenience Alley is primarily a drive-through establishment where most customers are served while they wait in their automobiles. There is a walk-in entrance, however, and Ms. Dvorak made her purchase on foot.

   
   

   After exiting the premises, she gave the beer to the waiting law enforcement officers. The evidence was marked and placed in the inventory of the Palm Bay Police Department, where it was later destroyed in accordance with the department's policy of destroying evidence that is over one year old. Palm

   Bay Police Department property report #89-08883, maintained by Officer P. Scholem, documents the disposition of the 6-pack of beer.

   
   

6. Melbourne Police Detective Ronald King observed the sale to Ms. Dvorak. Afterwards he approached the clerk, Lisa McCormick, under direction of Palm Bay Police Detective Paul Scholem and arrested her for unlawful sale to a minor.

   
   

7. On May 3, 1989, Sgt. Myers mailed an "official notice" to the licensee, Convenience Alley, stating that the arrest had been made and warning that future violations could result in a charge against the license.

   
   

8. On November 21, 1989, around 6:50 p.m. Sgt. Myers revisited Convenience Alley with another underage operative, James Core, Jr. As Sgt. Myers stood outside in the shadows, the youth drove through in his own vehicle and purchased a 6-pack of Budweiser beer.

   
   

9. James Core was 19 years old and was attending the local police academy at the time. He was clean-shaven and looked his age. As he made the purchase, the clerk laughingly said to him, "Shouldn't I be checking your I.D.?" He responded, also in a joking manner "Yes, ma'am." Nothing more was said, and Core did not offer his license.

   
   

   After the purchase, James Core drove into the parking lot and gave Sgt. Myers the beer and change from the $10.00 he had been given for the purchase. Sgt. Myers went into the establishment and issued an arrest citation to Valerie Britts, the clerk.

   
   

10. DABT sent Convenience Alley a notice, titled "Final Warning" dated November 27, 1989, stating that the next violation would subject the licensee to formal revocation or suspension proceedings.

    
    

11. On February 7, 1990, Sgt. Myers returned to Convenience Alley with George Madden, a 20 year old recruit from the police academy, also clean shaven and casually dressed.

    
    

    George Madden drove through in his own vehicle with two beverage agents behind him in their vehicle. He asked for the 6-pack of Budweiser. The clerk returned with the beer and asked for his identification. Madden showed his driver's license; the clerk looked at it and sold him the beer.

    
    

12. George Madden's birthdate is 11/30/69. His driver's license reflects this, and is stamped "Under 21", across the front. The stamp, however, obscures one digit of the 11, making his birthdate appear, without close scrutiny, to be 1/30/69. The clerk, Keith Wayne Lewis, read the birthdate as January. Since the incident occurred in February 1990, Lewis figured his customer had just turned 21, notwithstanding the stamp and yellow background on the photograph.

    
    

13. A few minutes after the sale Sgt. Myers arrested Lewis. On February 8, 1990 Sgt. Myers sent Convenience Alley a notice of intent to file a notice to show cause, citing the recent, as well as two previous arrests of employees.

    
    

14. On each occasion noted above, the store and drive through area were well-lit. The three operatives were appropriately trained and none appeared old beyond his or her years. None had been in the premises before.

15. The DABT has written policies and procedures, dated July 1, 1989, governing the investigation of sales to minors and the use of underage operatives. The agency generally will not proceed against a licensee until there have been three violations, unless the licensee (owner) is on the premises making the sale or observing it.

    
    

    The policy guide suggests that the second sale should be on a different date, time or shift than the first, and within three to eight weeks after the official notice has been issued to the licensee. The third sale should be on a still different date, time or shift than the first two sales, and within three to eight weeks after the letter of final warning has been received by the licensee. The three sales in this case do not conform to those written guidelines. Instead of three sales over a period of approximately two months, this case involves three illegal sales in approximately ten months.

    
    

16. Linda Beard is the Vice-president/Secretary and part owner of Convenience Alley, Inc. Her sister-in-law, Barbara Thomas is Treasurer and part-owner. A third owner, Terry Loy, is President and is unrelated. None of

    the owners was on the premises at the time of the sales which are the subject of this proceeding.

    
    

    The licensee owns only this one location. One of the two women works at the store every day and closes up the premises every night. Respondent did not provide formal training to its employees in the past, but now administers the "responsible vendor" test, which it obtained in March, after the third violation.

    
    

    The store has always had a sign near the cash register facing the clerks, reminding them to check ID's and giving the birthdates by which persons may legally purchase alcohol and tobacco.

    
    

17. After the first violation, Linda Beard requested that DABT send her a poster explaining the new format for driver's licenses adopted on July 1, 1988. The poster was sent, but it was a black and white photocopy, and arrived in an envelope with $.10 postage due.

    
    

    The agency provides such aids to licensees as a courtesy.

    
    

18. Sgt. Myers offered training to Convenience Alley's employees, but Linda Beard felt that since they were primarily part-time, it would be difficult to schedule the training, so she did not take advantage of the offer.

    
    

    Instead she relied on careful recruiting. The employees were only hired on good recommendations. Keith Lewis, for example, had experience in other convenience stores and is the son of a local police officer. She also admonished the employees to check IDs and warned that no sale is worth an arrest or the loss of a license.

    
    

    The owners now use a colored poster to train the clerks themselves. They also point out to the employees how difficult it is to read the birthday with the "Under 21" stamp superimposed.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction in these proceedings. Section 120.57(1), F.S.

20. Section 561.29(1), F.S., authorizes the Division to revoke, 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 consumption of alcoholic beverages . . .

       
       

21. Section 561.29(3), F.S., authorizes the Division to impose an administrative fine, not to exceed $1,000.00 against a licensee for any violation of the beverage laws.

    
    

    Section 562.11(1)(a), F.S., makes it unlawful for any person to sell alcoholic beverages to a person under 21 years of age.

    
    

    Although the statutes facially imply strict liability, over thirty years of cases have held that the agency must show a lack of due diligence on the part of a beverage licensee before sanctions may be imposed. Cohen v. Schott, 48 So.2d

    154 (Fla. 1950); Trader Jon, Inc.v. State Beverage Department, 119 So.2d 735 (Fla. 1st DCA 1960); Lash, Inc. v. State Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982); Surf Attractions v. Department of Business Regulation, 480 So.2d 1354 (Fla. 1st DCA 1985) reh. den. Jan. 20, 1986, review denied 492 So.2d 1331 (1986).

    
    

22. The agency has provided written policies to its field staff for establishing a good "lack of due diligence" case. Unadopted as rules, the policies merely guide, rather than bind the agency, or in this case, the Hearing Officer acting as fact finder in its stead.

    
    

    Three clear sales to an underage operative by Respondent's employee or agent within a period of approximately two months would perhaps have established lack of due diligence.

    
    

    The circumstances here are substantially different.

    
    

23. The sales took place over a period of approximately ten months. After the first sale, the owners/Respondent exercised progessively more diligence with some measure of success.

Arguably, the query, "shouldn't I be checking your ID?" should have prompted the underage operative to actually produce his card. Nonetheless, the statement fell short of a demand and the sale violated Section 562.11(1)(a), F.S.

The third clerk made a proper request for ID, but was justifiably misled by the face of the driver's license indicating his customer had just achieved legal drinking age.

These circumstances substantiate Respondent's claim of attempts to assure compliance with the law and the agency has failed to meet its burden of proof with regard to lack of due diligence.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

That a final order be entered dismissing the February 21, 1990 notice to show cause.

DONE and RECOMMENDED this 8th day of October, 1990, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1990.

APPENDIX

The following constitute rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings

1. Adopted in paragraph 1.

2. Adopted in paragraph 2.

3. Adopted in paragraphs 3-5.

4. Adopted in paragraph 5.

5. Adopted in paragraph 6.

6. Adopted in paragraph 14.

7. Adopted in paragraph 7.

8. Adopted in substance in paragraph 18.

9. Rejected as immaterial. Respondent obtained the poster.

10. and 11. Adopted in paragraph 8 and 9.

12. and 13. Adopted in paragraph 14.

1. Adopted in paragraph 9.

2. Rejected as unnecessary.

3. and 18. Adopted in substance in paragraph 11.

1. Rejected as unnecessary.

2. Adopted in paragraph 14.

3. Adopted in paragraph 13.

4. Rejected as unnecessary.

5. Adopted in part in paragraph 12. The date is legible if the observer is looking for second digit; it is not in plain sight.

6. and 25. Rejected as unnecessary.

1. Adopted in paragraph 16.

2. Adopted in paragraph 14.

3. Rejected as cumulative and, as to non-misleading actions, contrary to the weight of evidence. No one lied and each operative followed the specific instructions. However, Operative Core's response was, in the context, sufficiently ambiguous as to mislead the clerk.

Respondent's Proposed Findings of Fact

1. ["Point 2"] Rejected as unnecessary.

2. ["Point 3"] Rejected as unnecessary.

3. ["Point 8"] Adopted in substance in paragraphs 17 and 18.

4. ["Point 11"] Adopted in part, as to the response, in paragraph 9, otherwise rejected as unsupported by the evidence. Petitioners were not "out to get" Respondents, according to the evidence in this case.

5. and 6. ["Point 16" and "Point 24"] Rejected as unnecessary.

1. ["Point 26"] Adopted in paragraph 16.

2. and 9. ["Point 33" and "Point 37"] Rejected as unnecessary, except as addressed in paragraphs 12 and 15.

COPIES FURNISHED TO:

Robin L. Suarez

Assistant General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, FL 32399-1007

Linda J. Beard,

Vice-President/Secretary Convenience Alley, Inc. 5020 Minton Road, N.W. Palm Bay, FL 32907

Joseph Sole, Secretary Department of Business

Regulation

The Johns Building

725 South Bronough Street Tallahassee, FL 32399-1000

General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, FL 32399-1000

Leonard Ivey, Director

Dept. of Business Regulation The Johns Building

725 S. Bronough St. Tallahassee, FL 32399-1000

Docket for Case No: 90-002315

Orders for Case No: 90-002315