STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-4561

)

DAVID L. CREWS, d/b/a )

CREWS TEXACO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on December 20, 1991, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Robin L. Suarez, Esq.

Assistant General Counsel Department of Business Regulation 725 South Bronough St.

Tallahassee, Florida 32399-1007

For Respondent: David L. Crews, Pro Se

U. S. 1 & 5th Street Hilliard, Florida 32046

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent, holder of an alcoholic beverage license, sold or permitted the sale of alcoholic beverages to minors on his licensed premises; whether Respondent retained alcoholic beverage invoices or sales tickets for three years in accordance with licensure requirements; and whether Respondent kept cigarette invoices or sales tickets for three years in accordance with licensure requirements.

PRELIMINARY STATEMENT

On May 14, 1990, Petitioner issued a NOTICE TO SHOW CAUSE which contained an allegation that Petitioner, or his agents, had sold alcoholic beverages to minors. The notice also alleged that Petitioner had also failed to retain alcoholic beverage and cigarette invoices or sales tickets for three years, contrary to requirements of Florida law. Respondent was advised by the contents of the notice that these charges, if true, could result in the suspension or revocation of Respondent's license by Petitioner.

Respondent requested a formal administrative hearing on the charges contained in the NOTICE TO SHOW CAUSE. Subsequently, the matter was transferred to the Division Of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Respondent presented the testimony of three witnesses, including himself. Respondent presented no evidentiary exhibits. Petitioner presented seven evidentiary exhibits and testimony of four witnesses. One witness, a highway patrol trooper who was present and desired to testify, was called by the hearing officer.

No transcript of the hearing was provided by the parties. Respondent did not timely file proposed findings of fact, and no proposed findings had been received at the time of the preparation of this recommended order. Proposed findings of fact submitted by Petitioner are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent is David L. Crews, holder of Alcoholic Beverage License No. 55-00162, series 1-APS, for a licensed premises known as Crews Texaco located in Nassau County, Florida.

   
   

2. On December 15, 1989, Respondent sold William Christopher Brannan a twelve pack of beer which is an alcoholic beverage. Brannan was 17 years of age at the time Respondent sold him the beer. At the time of the sale, Respondent did not ask for proof of age or any other form of identification from Brannan.

   
   

3. Accompanying Brannan on December 15, 1989, were two other teenagers: Robert Terrell Simmons, Jr., and Larry W. Wilkerson. Respondent sold Simmons a case of Busch beer, an alcoholic beverage, at the same time as the sale to Brannan. Simmons was 18 years of age at the time of the sale. Respondent did not ask for proof of age or any other form of identification from either Simmons or Wilkerson.

   
   

4. It was common knowledge in the area that Respondent would readily sell alcoholic beverages at a higher than normal price to persons under the lawful age of 21 years. Respondent charged Brannan and Simmons a higher price for the alcoholic beverages purchased by them because he knew they were under the age of

   21 years.

   
   

5. Brannan, Simmons and Wilkerson had attempted to purchase alcoholic beverages from Respondent earlier in the evening, but Respondent waved them away because law enforcement personnel were investigating a domestic disturbance near his business.

   
   

6. Later in the evening of December 15, 1989, after purchasing the alcoholic beverages from Respondent, the three youths were involved in a alcohol related accident and Brannan was killed.

   
   

7. On April 30, 1990, Respondent was convicted in Nassau County Court of two counts of providing alcoholic beverages to a minor and paid a fine of

   $127.50 on each count. He also received a 30 day suspended sentence on each count.

8. On March 9, 1990, agents for Petitioner's Division of Alcoholic Beverages and Tobacco interviewed Respondent about the matter of sale of alcoholic beverages to underage persons and conducted an inspection of his licensed premises. In the course of the inspection, the agents requested that Respondent produce his alcoholic beverage and cigarette invoices.

   
   

9. Respondent was unable to produce the invoices and admitted to the agents that he had used the invoices for writing paper and had then thrown them away. Respondent reaffirmed these statements at the final hearing.

   
   

10. As of December 20, 1991, Respondent has failed to produce either alcoholic beverage or cigarette invoices. As established by his own testimony at the final hearing, prior to March 9, 1990, Respondent did not maintain either alcoholic beverage or cigarette invoices on the licensed premises.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The proof establishes that Respondent has violated Section 562.11(1)(a), Florida Statutes, prohibiting the sale of alcoholic beverages to a person under the age of 21 years.

    
    

13. Respondent's conduct constitutes a violation of Section 561.29(1)(a), Florida Statutes, prohibiting any licensee of Petitioner from "[v]iolation . . . of any of the laws of this State or of the United States".

    
    

14. Further, Respondent has clearly violated requirements of Section 210.90, Florida Statutes, requiring retail dealers of cigarettes to keep sales or invoice records of cigarettes received, sold or delivered within the state, for a period of three years.

    
    

15. Additionally, Rule 7A-4.043(13), Florida Administrative Code, requires licensees such as Respondent to retain invoices or sales tickets on all alcoholic beverages purchased by that vendor for a period of three years.

    
    

16. Petitioner bears the burden of proving the allegations of the Notice To Show Cause by clear and convincing evidence. Ferris v. Turlington, 510 So.2d

    292 (Fla. 1987). Petitioner has met that burden.

    
    

17. Petitioner's counsel argues for the imposition upon Respondent's alcoholic beverage license of a civil penalty of $2,500 and a 20 day suspension of that license.

    
    

18. Petitioner's authority for imposition of civil penalties in these matters is contained in Section 561.29(3), Florida Statutes. That authority permits imposition of a maximum of $1,000 in civil penalties by Petitioner upon a licensee for all violations arising out of a single transaction and authorizes suspension of licensure in the event of non-payment of the penalty by the licensee.

    
    

19. Section 561.29(1), Florida Statutes, authorizes suspension or revocation of licensure by Petitioner for violations of law related to alcoholic beverage regulation.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered suspending Respondent's beverage license bearing number 55-00162, Series 1- APS, for a period of 40 days and requiring payment of a administrative fine in the amount of $2,000.

DONE AND ENTERED this 14th day of January, 1992, in Tallahassee, Leon County, Florida.

DON W.DAVIS

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 14th day of January, 1992.

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.

1.-21. Adopted, although not verbatim. 22.-26.Rejected, unnecessary.

Respondent's Proposed Findings. None submitted.

COPIES FURNISHED:

Robin L. Suarez, Esq. Assistant General Counsel

Department of Business Regulation 725 South Bronough St.

Tallahassee, Florida 32399-1007

David L. Crews

U. S. 1 & 5th Street Hilliard, Florida 32046

Donald D. Conn General Counsel

Department of Business Regulation 725 South Bronough St.

Tallahassee, Florida 32399-1007

Janet Ferris, Secretary Department of Business Regulation 725 South Bronough St.

Tallahassee, Florida 32399-1000

Richard W. Scully, Director Division of Alcoholic Beverages Department of Business Regulation 725 South Bronough St.

Tallahassee, Florida 32399-1007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004561

Orders for Case No: 90-004561