STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4814

)

201 WEST, INC., d/b/a )

CENTRAL CITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on February 20-21, 1991 in Gainesville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas A. Klein

Assistant General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Sy Chadroff, Esquire

David Rutman, Esquire 2700 S.W. 37th Avenue

Miami, Florida 33133-2728 STATEMENT OF THE ISSUE

What, if any, disciplinary action may be taken by the Petitioner Division of Alcoholic Beverages and Tobacco against Respondent pursuant to 37 counts raised in four consolidated Notices to Show Cause? For greater specificity, see the PRELIMINARY STATEMENT, infra.

PRELIMINARY STATEMENT

Petitioner initially filed two Notices to Show Cause (Agency Case Numbers GA11890374 and GA11890496) alleging that Respondent's employees had made multiple sales of alcoholic beverages to underaged persons. Additionally, Petitioner alleged that several underaged persons were in possession of alcoholic beverages inside the licensed premises. These administrative charges were consolidated before the Division of Administrative Hearings as DOAH Case No. 90-4814.

Subsequent to the filing of the administrative charges described hereinabove, Petitioner served two more Notices to Show Cause (Agency Case Numbers GA11900209 and GA11900254) alleging further sales to and possession of alcoholic beverages by underaged persons. By stipulation of counsel, all four Notices to Show Cause were consolidated and heard on February 20-21, 1991.

Prior to the hearing, the parties executed a Prehearing Stipulation, whereby certain undisputed facts, exhibits (including composite parts), and legal issues were admitted in evidence. This Prehearing Stipulation also was admitted in evidence as Hearing Officer EX-A. At the commencement of formal hearing, additional factual stipulations were entered into by the parties, as were some stipulations with regard to the legal significance as charging documents of each of the four Notices to Show Cause.

Notice to Show Cause GA11890374 contains 14 counts, with dates ranging from September 16, 1989 through February 9, 1990. The violations alleged therein were brought under Subsection 562.11(1)(a) F.S., selling, giving, or serving alcoholic beverages to a person under age 21. Counts 3, 7, 8, and 12 allege sale of alcoholic beverages to underaged persons. The remaining counts allege possession of alcoholic beverages by an underage person.

Notice to Show Cause GA11890496 contains 8 counts ranging from June 8, 1990 through June 16, 1990. The violations alleged therein were brought under Subsection 562.11(1)(a) F.S., selling, giving, or serving alcoholic beverages to a person under age 21, specifically reciting, "sell, serve, or allow consumption."

Notice to Show Cause GA11900209 contains 4 counts ranging from September 22, 1990 through September 29, 1990. The violations alleged therein were brought under Section 562.11(1)(a) F.S., selling, giving, or serving alcoholic beverages to a person under age 21.

Notice to Show Cause GA11900254 contains 11 counts ranging from October 19, 1990 through November 16, 1990. The violations alleged therein were brought under Section 562.11 F.S., selling, giving or serving alcoholic beverages to a person under age 21. Nine counts specifically recite "possession" of alcoholic beverages; two counts specifically recite "giving" of alcoholic beverages.

Petitioner presented the oral testimony of Curtis Jernigan, Tanya Pendarakis, Bridgette Toombs, John Szabo, Megan Kittles, Matthew Goldtrap, David Lockey, Octavia Ormsbee, Mason Byrd, Edward Posey, Charles Seligman, Ernest Wilson, William Cooter, Don O'Steen, and Eileen Tenly. Petitioner's Exhibits 1-

3 were admitted in evidence.

Respondent presented the oral testimony of Craig Cinque, Arthur Green, Naomi Lee, Shannon Halchak, Walter Sugamura, Scott Greist, Prince Miles, Michael Moore, Holly Goolsby, Teresa Oder, Jacqueline Romak, Mark Turner, Dale Mills, Ted Butler, Salvatore Campagna, Mark MacEwan, LeAnn Flynn, and James Ward.

Respondent's Exhibits 1-11 were admitted in evidence. Provision was made for the late-filing of Respondent's Exhibits 10 and 11 (TR-168), but only Exhibit 10 was filed, and consequently Exhibit 11 has not been considered.

Whenever appropriate and agreed upon, witnesses were permitted to adopt other witnesses' testimony so as to avoid cumulative material.

A transcript and proposed recommended orders were filed in due course and all proposed findings of fact have been ruled on in the Appendix to this Recommended Order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco.

   
   

2. Respondent is 201 West, Inc., d/b/a Central City, who is the holder of alcoholic beverage license number 11-00259, Series 4-COP, a "quota license."

   
   

3. Respondent's licensed premises is located at 201 West University Avenue, Gainesville, Alachua County, Florida.

   
   

4. Craig Cinque is Respondent's sole director and corporate officer.

   
   

5. Joseph Cinque, Craig Cinque's father, was formerly Respondent's sole director and corporate officer.

   
   

6. Prior to becoming the owner of Central City, Craig Cinque managed the licensed premises on behalf of his father. During this period of time, the Division filed ten separate Notices to Show Cause against Respondent, alleging multiple sales to and consumption of alcoholic beverages by underaged persons. On August 29, 1989, the licensed premises was closed by an Emergency Order of Suspension. The administrative charges arising therefrom were resolved by a Stipulation and Consent Agreement, wherein the Respondent in that case admitted substantially to all of the violations. Craig Cinque individually executed the agreement, admitted responsibility for previous violations, and acknowledged that future violations of a similar nature could result in suspension or revocation of the alcoholic beverage license.

   
   

7. The agency has issued numerous Notices to Show Cause against Respondent since the entry of the consent order. However, unproven Notices to Show Cause and unproven counts within any Notices to Show Cause are only unproven accusations, and as such are not probative herein even for purposes of showing "aggravation."

   
   

8. Beverage Law Institute is an "approved trainer" under the Responsible Vendors Act, having been approved by the Petitioner as such.

   
   

9. Petitioner certified Respondent Central City as a certified Responsible Vendor under the Act, on April 13, 1990. See, Subsections 561.701-561.706 F.S.

   
   

10. Of the 483 nondistributor alcoholic beverage licensees in Alachua County, only 94 have been certified by Petitioner as Responsible Vendors. Of those 94, only 13 hold "4-COP" licenses, the category of license held by Respondent, which permits liquor, beer, or wine for consumption on premises or in a sealed container.

    
    

11. Prior to the events of the instant Notices to Show Cause, and continuing through the 14-month period of the Notices to Show Cause and beyond, Respondent was engaged in a voluntary program designed to teach employees not to serve alcoholic beverages to underaged persons. Many of the materials therefor were provided by Beverage Law Institute. The training program and procedures involved multiple ID checkers at the front door. Also at the front door, wristbands to signify and quickly identify patrons of legal drinking age were

    issued. Once snapped on a customer's wrist, the band itself was stamped at a right angle across the customer's wrist to prevent or at least inhibit the wristband's transfer to an underage patron and to prevent a patron bringing in a counterfeit or "ringer" wristband. All patrons, regardless of age, received a stamp directly on the wrist to identify that they had paid their admission fee. Security personnel circulated inside the licensed premises checking drinks and wristbands, and waitresses were also instructed to check on drinks already purchased by customers. The training programs and procedures also involved Respondent's policy manual regarding IDs, extensive training and testing of employees, frequent oral reminders to employees concerning the law and concerning licensee policy, sporadic staff meetings regarding policy, videotaped instruction programs, provision of and instructions to employees to use an "ID Checking Guide" at the front door and at every internal bar within the licensed premises, confiscation of fake or questionable IDs at the door, 1/ and use of warning handbills given out to customers. Upon receipt, the handbills proclaiming the licensee's "of age only" policy were usually immediately discarded by customers. Some employees looked upon their training with more enthusiasm than others. Some employees considered the policy and training all for show. Most employees complied regularly with the requirements for training, review, and instructions. A few were lax in their compliance and had to be urged to attend staff meetings or to retest. In addition to all this, from the time the Responsible Vendor tests were available, all employees except two cashiers were tested according to the requirements of the Responsible Vendor Act and within the time frames provided therein. Every underage operative who testified admitted she or he had been "carded" at the door and that none had been issued wristbands.

    
    

12. The parties stipulated that all of the individuals named in the four Notices to Show Cause (except for those alleged to have sold or given alcoholic beverages) were under the legal drinking age on the dates indicated by the respective Notices to Show Cause and that although each of these individuals "was actually in possession of alcoholic beverages as plead (sic), there was no evidence that any of the alcoholic beverages were obtained from Respondent's employees, agents, or servants." The stipulation listed the underage persons of the Notices to Show Cause but did not employ the term "consumption" which was specifically used only in the second Notice to Show Cause (GA11890496). Petitioner put on no witnesses as to "consumption." Likewise, Petitioner did not have admitted in evidence any confiscated alcoholic beverages alleged to have been sold by Respondent's agents/employees, nor did Petitioner present any laboratory reports to establish that any substance sold was alcohol. The only evidence of alcohol content is discussed infra.

    
    

13. With regard to Craig Cinque's attitude and Central City's compliance with the Responsible Vendors Act, the testimony of Eileen Tenly and of William Cooter has been weighed and considered. Ms. Tenly is a totally noncredible witness whose testimony demonstrates an "axe to grind," and whose candor and demeanor is unpersuasive of anything except her animosity for Mr. Cinque. Petitioner's Investigator William Cooter, however, testified credibly that after having numerous conversations with Mr. Cinque on the subject of underage sales, Mr. Cinque stated that he was not worried about losing his alcoholic beverage license because he could get another one in his mother's name. On the other hand, Mr. Cooter, by his own testimony, has been invited by Mr. Cinque to instruct and has, in fact, instructed Mr. Cinque's employees on how to prevent underage drinking.

14. The evidence as a whole, but most particularly that of Prince Miles, Respondent's janitor, who is a credible witness, is persuasive that patrons sometimes smuggle alcoholic beverages onto the licensed premises and that each time the establishment closes, commercial alcoholic beverage containers which are not part of the inventory sold by Respondent must be swept out. Since this smuggling activity must substantially reduce Respondent's profits, it is a logical inference that such smuggling is contrary to Respondent's policy and that Respondent does not encourage or condone it, whether done by adults or minors.

    
    

    I.

    
    

    Notice to Show Cause GA11890374; September 16, 1989 through February 9, 1990; sale to Toombs, Kittles, Goldtrap, and Ormsbee by Green, Halladay, Howell, and Grimes and possession by Peters, Conf, Kelly, Garcia, Fernandez, Shiskin, Brejhanan, Benz, Yawn, and Plettner

    
    

15. All of the violations charged in Notice to Show Cause GA11890374 arose prior to Respondent's becoming a certified Responsible Vendor on April 13, 1990.

    
    

16. On September 16, 1989, Ryan Conf and Alejandra Peters were each under the age of 21 and in actual possession of alcoholic beverages inside the licensed premises as pled.

    
    

17. On September 19, 1989, Central City bartender David Green sold the Division's underaged operative, Bridgette Toombs, a liquid beverage in a long- neck, factory-produced 12-ounce bottle labelled "Michelob Dry." At that time, the licensed premises was not busy and Mr. Green noted that Ms. Toombs had no wristband. He therefore checked Ms. Toombs' underage ID and instructed her that since she was old enough to drink, she should go get a wristband. This transaction was observed by Petitioner's agent, Ms. Pendarakis, but Ms. Pendarakis did not overhear the conversation. After delivering a sample of the liquid beverage to Ms. Pendarakis in the ladies' room, Ms. Toombs crossed in front of Mr. Green's bar on her way to exit the licensed premises. Mr. Green sent word to Ms. Toombs by another Central City employee that he wanted to see her. Ms. Toombs complied with Mr. Green's request and showed him her underage ID once more. At that point, Mr. Green recognized his error in thinking that Ms. Toombs was 21 or over and called over several other Central City employees, all of whom viewed the ID showing Ms. Toombs was actually two months short of 19 years old. Mr. Green was not arrested until after the ID was passed around, so it may be inferred that his recognizing his mistake was not the result of any confrontation with Petitioner's agents or law enforcement officers or due to his perception that he had been "caught." Indeed, Petitioner's witness, Ms. Toombs, attributed Mr. Green's illegal sale to her as a mistake in subtraction. Mr. Green had previously successfully passed all tests required under the licensee's policy in existence before the Responsible Vendor tests were available.

    
    

18. On October 20, 1989, Charlotte Kelly and Alezandro Garcia, who were under the age of 21, were each in the actual possession of an alcoholic beverage inside the licensed premises.

    
    

19. On October 21, 1989, Cesar Fernandez, who was under the age of 21, was in possession of an alcoholic beverage inside the licensed premises. On the same date, underage operative Megan Kittles was inside the licensed premises. She was not wearing a wristband, and her hand was stamped indicating that she

    was under 21. She first approached a white male bartender who checked her and refused to serve her. She then ordered a rum and coke from Respondent's bartender, Craig Halladay. Mr. Halladay did not check Ms. Kittles' ID and served her a liquid beverage which Mr. Szabo of the Division testified that he had identified by smell as containing alcohol. No one saw the drink mixed, and Mr. Szabo admitted that he did not know what kind of alcohol the drink contained. He stated that he "would not swear it was rum." Mr. Szabo also was not aware until formal hearing that Respondent sold any nonalcoholic mixed drinks. Although the evidence is weak, it is persuasive that Ms. Kittles was served alcohol. Mr. Halladay successfully passed the licensee's policy test before this incident and the Responsible Vendor test afterwards. Also on October 21, 1989, Matthew Goldtrap, another underage operative, ordered a "Budweiser" and obtained a 12-ounce bottle labelled "beer" from a floor waitress named Shannon Howell. Mr. Goldtrap had no wristband but did have a stamp on his wrist. He gave the container to Investigator Smith. Mr. Szabo then took both of Respondent's employees into custody. Mr. Goldtrap does not drink alcohol.

    Investigator Smith did not testify, but it is inferred from the description of the beer bottle and the circumstances of the transaction as a whole that Mr.

    Goldtrap was served an alcoholic beverage. Ms. Howell successfully passed the licensee's test prior to this incident.

    
    

20. On January 19, 1990, Scott Shiskin, Michael Brejhanan, and Carolyn Benz, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises.

    
    

21. On February 9, 1990, Central City bartender Steve Grimes sold Petitioner's 19-year old operative Octavia Ormsbee a liquid beverage. Ms. Ormsbee, who had no wristband on, was first denied a sale of alcoholic beverage at the downstairs back bar after Respondent's bartender there checked her underage ID. Ms. Ormsbee then went to an upstairs bar and ordered a "Bud Light." She was told by Mr. Grimes, a bartender at that bar, that they were out of "Bud Light," and by agreement, a beer bottle labelled "Budweiser" was substituted. Ms. Ormsbee does not drink alcohol and did not testify that what she received from Mr. Grimes was alcohol. The bottle purchased by Ms. Ormsbee was turned over to Officer Byrd of the Gainesville Police Department. Officer Byrd, who is familiar with alcoholic beverages through his own education, training, practice, and experience, identified the contents of the bottle purchased by Ms. Ormsbee as being "beer." Officer Byrd turned the bottle over to Petitioner's agent Cooter. Also on this occasion, Preston Yawn and Eric Plettner, who were under the age of 21, were each actually in possession of alcoholic beverages inside the licensed premises. Mr. Grimes had successfully passed the licensee's policy test prior to this incident.

    
    

22. All of the underaged operatives who testified concerning this Notice to Show Cause testified that Petitioner's adult operatives forbade them to drink (consume) what they were sold and that they did not consume any. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the minors actually named in the Notice to Show Cause constituted their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, mere possession does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 2/

23. Therefore, Petitioner has only established that on September 19, 1989 Respondent's bartender sold an alcoholic beverage to Petitioner's underage operative Bridgette Toombs; that on October 21, 1989, Respondent's bartender sold an alcoholic beverage to the Petitioner's underage operative Megan Kittles; that also on October 21, 1989, Respondent's floor waitress sold Petitioner's underage operative Matthew Goldtrap an alcoholic beverage; and that on February 9, 1990, Respondent's bartender sold the Division's underage operative Octavia Ormsbee an alcoholic beverage. One of these sales was clearly a mistake and two other operatives had to go to two bartenders each before an illegal sale was made.

    
    

    II.

    
    

    Notice to Show Cause GA11890496; June 8, 1990 through June 16, 1990; sale to Wearner by Edge and to Seligman by Lemberger and Bergine and possession by Tetstone, Lockey, Klug, Skipper, and Bissell

    
    

24. On June 8, 1990, Jennifer Tetstone and Amy Lockey, who were under the age of 21, were in actual possession of alcoholic beverages inside the licensed premises.

    
    

25. On June 16, 1990, Ann Klug, Shana Skipper, and Michael Bissell were in actual possession of alcoholic beverages inside the licensed premises. Also on June 16, 1990, Central City bartenders Michael Edge, Michael Bergine, and Robert Lemberger, respectively, sold each of the Division's underage operatives Kathy Wearner (who did not testify but who was stipulated to be underage) and Charles Seligman an alcoholic beverage. Neither underaged operative wore a wristband or was requested to produce an ID for purposes of the respective sales. As of date of formal hearing, the Respondent continued to employ these same bartenders.

    All of these bartenders had successfully completed the Responsible Vendor test before these incidents. Mr. Edge also had passed the licensee's earlier policy test. The underaged operative, Kathy Wearner, asked Michael Edge for "a Budweiser" and was sold liquid in a "Budweiser" beer bottle inverted in a drinking glass. Officer Rockey of the Gainesville Police Department convincingly described the liquid that came out of the bottle as beer, an alcoholic beverage. He turned the materials confiscated over to an unnamed agent of Respondent and has not seen them since. On the same date, Central City bartender Robert Lemberger sold a 12-ounce bottle labelled "Budweiser" to 18- year-old operative Charles Seligman. Mr. Seligman was at all times without a wristband and bearing a stamp on his hand. Mr. Seligman delivered the bottle he received from Mr. Lemberger to Officer Posey of the Gainesville Police Department who had watched the entire transaction. Mr. Seligman later purchased a 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to Officer Posey. Mr. Seligman purchased a third 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to one of Petitioner's agents, Ernest Wilson. Mr. Seligman does not drink alcohol. Agent Wilson does drink alcohol and testified that the bottle Charles Seligman handed him was, in fact, beer.

    Although Agent Wilson also testified that Mr. Seligman's first name was "Tom" and that Mr. Seligman had purchased a rum drink, nonetheless, Mr. Wilson was convincing that the bottle handed him by Mr. Seligman did, in fact, contain beer, an alcoholic beverage. Officer Posey convincingly described the first bottle he received from Mr. Seligman as containing beer, an alcoholic beverage, and upon all the circumstances, the undersigned infers that the second bottle given Officer Posey also contained beer.

26. All the underaged operatives who testified on this Notice to Show Cause testified that they were forbidden to drink (consume) what they were sold and did not do so. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the other minors actually named in the Notice to Show Cause constitutes their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 3/

    
    

27. Therefore, Petitioner has established only that on June 16, 1990 Respondent's personnel sold one alcoholic beverage to the Petitioner's underage operative Wearner and three alcoholic beverages to the Petitioner's underage operative Seligman.

    
    

    III.

    
    

    Notice to Show Cause GA11900209; September 22, 1990 through September 29, 1990; service to, or consumption by Stanton, Coody, Willis, and, Torres

    
    

28. On September 22, 1990, Amy Stanton and Janet Coody, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises.

    
    

29. On September 29, 1990, Betty Willis and Jose Torres, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises.

    
    

30. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 4/

    
    

    IV.

    
    

    Notice to Show Cause GA11900254 October 19, 1990 through November 16, 1990; 9 counts possession by Harriett, Ortega, McKinney, Nelson, Smith, Winter, Joyner, Cooke, Sammon; "giving" by Blackwell and Strawser

    
    

31. On October 19, 1990, Steven Harriett, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises.

    
    

32. On October 21, 1990, Jamie Ortega, who was under the age of 21, was in actual possession of an alcoholic beverage inside the licensed premises.

    
    

33. On October 20, 1990, Brian McKinney, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises.

34. On November 15, 1990, Karen Nelson, Hollie Smith, Michael Winter, and Julia Joyner, all underage, were in actual possession of an alcoholic beverage inside the licensed premises.

    
    

35. On November 16, 1990, Denise Cooke and Teresa Sammon, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises.

    
    

36. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 5/

    
    

37. No evidence was introduced to establish the allegations of Counts 4 and 6 of Notice to Show Cause GA11900254, alleging "giving."

    
    

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

39. The law pursuant to which Respondent is specifically charged within each Notice to Show Cause reads as follows:

    
    

    562.11 Selling, giving, or serving alcoholic beverages to person under age 21; misrepre- senting or misstating age or age of another to induce licensee to serve alcoholic beverages to person under 21; penalties.-- (1)(a) 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. Anyone convicted of violation of the provisions hereof is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or

    s. 775.083. [Emphasis supplied]

    
    

40. None of the Notices to Show Cause specifies charges under Section

    562.111 F.S. Unlike Section 562.11 F.S., Section 562.111 F.S. prohibits possession of alcoholic beverages by persons under the age of 21 years, and that statute is directed to criminal sanctions for the underaged purchaser/drinker, not administrative sanctions against one in Respondent's position.

    
    

41. All of the Notices to Show Cause have been brought pursuant to Section

    561.29 F.S. None can be reasonably construed to constitute an attempt by the agency to decertify Respondent as a certified Responsible Vendor.

    
    

42. With regard to Notice to Show Cause GA11890374: On September 19, 1989 Respondent's employee, through what all the evidence points to as a mistake, sold an alcoholic beverage to an underaged operative. On October 21, 1989 Respondent's employees sold alcoholic beverages to two underage operatives. One

    of these operatives had to make two tries before being sold alcohol. On February 9, 1990, another sale was made to an underage operative. This operative was also refused once before being able to buy alcohol. These four violations occurred before Petitioner certified Respondent as a Responsible Vendor, but all the employees involved had been tested by Respondent in substantial compliance with the Act, with the goal of becoming certified, and so as to train them to prevent underage sales.

    
    

43. With regard to Notice to Show Cause GA11890496: On June 16, 1990, Respondent's employees sold one alcoholic beverage to one underage operative and made three such sales to a second underage operative.

    
    

44. With regard to Notices to Show Cause GA11900209 and GA11900254: No violations of the beverage law were proven against Respondent or its personnel.

    
    

45. The parties respective legal positions: Petitioner urged immediate beverage license revocation pursuant to Section 561.29 F.S. with no resort to any agency guidelines for progressive discipline. Respondent contended that Subsections 561.701-561.706 F.S., "The Florida Responsible Vendor Act," is specific as to the State's ability to revoke or suspend a certified Responsible Vendor's beverage license and that the State may not suspend or revoke a certified Responsible Vendor's beverage license unless the vendor knew of the violation, should have known, or participated in the violation, which evidence Respondent submitted is lacking in this cause, and that even if vendor participation had been proven, because Petitioner has not simultaneously with the instant four notices to show cause also attempted to decertify Respondent's Responsible Vendor certificate/status, suspension or revocation of his alcoholic beverage license may not legitimately be the outcome of this proceeding. Alternatively, Respondent argued that there is extensive evidence of mitigating circumstances and suggested that the Hearing Officer adhere to "proposed guidelines" for Certified Responsible Vendors which both Petitioner and Respondent consider to be agency "policy" not yet promulgated as a rule. (Respondent's Exhibit 10; TR-I-188-192; TR-II-168).

    
    

46. Section 561.706 F.S. provides:

    
    

    561.706 Exemption from license suspension or revocation; mitigation for certain beverage law violations.--

    1. The license of a vendor certified as a responsible vendor under this act may not be suspended or revoked for an employee's illegal sale or service of an alcoholic beverage to a person who is not of lawful drinking age or for an employee's engaging in or permitting others to engage in the illegal sale, use of, or trafficking in controlled substances, if the employee had completed the applicable training prescribed by this act prior to committing such violation, unless the vendor had knowledge of the violation, should have known about such violation, or participated in or committed such violation. No vendor may use as a defense to decertifi- cation the fact that he was absent from the licensed premises at the time of noncompli- ance with this section. No vendor may use

       as a defense to revocation the fact that he was absent from the licensed premises at the time a violation of the Beverage Law occurred if the violations are flagrant, persistent, repeated, or recurring.

    2. The division shall consider certifica- tion by a vendor in the responsible vendors program in mitigation of administrative penalties for an employee's illegal sale or service of an alcoholic beverage to a person who is not of lawful drinking age or if the certification includes the applicable courses for controlled substance for an employee's engaging in the illegal sale, use of, or trafficking in controlled substances. [Emphasis supplied]

    
    

47. The foregoing should be read in para materia with the following Sections 561.702 and 561.705(1)(b) F.S.:

    
    

    561.702 Legislative intent.--It is the intent of the Legislature to:

    1. Eliminate the sale of alcoholic beverages to, and consumption of alcoholic beverages by, underaged persons.

    2. Reduce intoxication-related accidents, injuries, and deaths in the state.

    3. Encourage alcoholic beverage vendors and their employees to prevent drug activity on their premises.

    4. Encourage alcoholic beverage vendors to be prudent in their serving practices and to restrict the sanctions that may be imposed in administrative proceedings against those vendors who comply with responsible practices in accordance with this act.

    
    

    561.705 Responsible vendor certification; qualification; renewal; suspension; revocation.--

    * * *

    (1)(b) The division shall adopt rules for monitoring compliance by certified vendors and for revoking or suspending a vendor's certification for noncompliance with this section. A certified vendor whose certifi- cation is revoked shall not be eligible for recertification until 3 years after a final order of decertification. Nothing contained herein shall prohibit the division from simultaneously revoking or suspending a certification for noncompliance and proceeding under s. 561.29 for a violation of the beverage law arising out of violations which occurred during such period

    of noncompliance with the Florida Responsible Vendor Act provided that the noncompliance in

    such case be substantial. Non-law-enforcement personnel of the division shall monitor and enforce compliance with this section.

    
    

48. Read in para materia, it is clear that in order to obtain a higher quality and a more consistent level of compliance with the underage drinking laws by alcoholic beverage licensees, the State of Florida has created in Subsection 561.706(1) F.S. the incentive that certified Responsible Vendors who remain in compliance with the Responsible Vendors Act may not have their alcoholic beverage licenses revoked or suspended for employee violations absent a prior or simultaneous agency decertification process unless personal involvement in the violation by the licensee himself has been proven. The statutory language to this effect is so abundantly clear that it has been picked up in the statutory "tagline."

    
    

49. In the instant cause, there has been no affirmative proof whatsoever that Respondent had knowledge of any of the proven violations, should have known about any of the proven violations, or participated in or personally committed any of the proven violations. Four violations occurred before certification (Notice to Show Cause GA 11890374) and four violations occurred after certification (Notice to Show Cause GA11890496).

    
    

50. Herein, there also has been no clear evidence that Respondent has failed to substantially comply with the specific requirements set out in Section 561.705 F.S. Since becoming certified, Respondent's employees have all been trained and tested, and the Petitioner has made no move to decertify him.

    
    

51. Clearly, Respondent's alcoholic beverage license cannot be suspended or revoked for the 4 violations arising after certification and proven in Notice to Show Cause GA11890496. However, he is just as clearly subject to other administrative penalties. See, Section 561.706(2) F.S.

    
    

52. Less clear is the question of whether or not Respondent's license can be revoked or suspended for the four violations which arose before certification and proven in Notice to Show Cause GA11890374. However, it is not necessary to reach the issue of whether or not Respondent can be revoked or suspended for these violations. Despite the lack of certification at that time, the provisions of the prior Consent Agreement/Order, and the fact that the employees involved had not yet been tested using the Responsible Vendor tests, it is concluded that Respondent should not be revoked or suspended for these charges for the following reasons: First, the employees involved had been tested over substantially the same material as later became available in the Responsible Vendor tests and Respondent, who was already in substantial compliance with Section 561.705 F.S., was already seeking to be certified. Second, the Respondent was certified as of the date of formal hearing, and Section 561.706(2) permits consideration of certification as a Responsible Vendor as mitigation, without specifying which time frame may be involved. But most importantly, qualifying and maintaining certification as a Responsible Vendor is such a costly and time-consuming proposition that it is unlikely any licensee would attempt to qualify but for the statutory incentive, which, in order to work, should be given this application in this case. See, by analogy, Anthony Abraham Chevrolet Co. Inc. v. Collection Chevrolet, Inc., 533 So.2d 821 (Fla. 1988).

53. Although Respondent is not an absolute guarantor of compliance with the laws applicable to its licensed premises, eight separate instances of sales to underaged persons on its premises in the course of fourteen months is evidence of negligence, Davis v. Shiappacossee, 155 So.2d 365 (Fla. 1963) and is a sufficient basis for imposition of administrative sanctions. In determining the appropriate penalty the undersigned has not relied on any so-called "penalty guidelines" of the Division. This is because the parties failed to offer any persuasive evidence as to the source of the guidelines admitted in evidence, the rationale for the guidelines, or the consistency, if any, with which they have been applied. Indeed, Petitioner's witness testified that the agency has been known to depart on a case-by-case basis from all its guidelines, including these. Absent adequate proof of an agency's non-rule policy, cases must be resolved by Hearing Officers and by agencies without resort to such policies. See, Bajrangi v. Dept. of Business Regulation, 561 So.2d 410 (Fla. 5th DCA 1990).

    
    

54. In assessing a penalty, the undersigned has reviewed prior Recommended and Final Orders in similar cases, has considered all elements of aggravation and mitigation, and concludes that an appropriate penalty for the violation involving David Green, the employee who made a mistake, is a $250 civil fine. Honest mistakes that result in sales of alcoholic beverages to minors warrant the imposition of a penalty if for no other reason than to motivate licensees to be more careful, but the penalty for such sales should be less severe than the penalty for sales to minors that result from a callous indifference to the prohibition. The remaining three violations proven under Notice to Show Cause GA11890374 should result in a civil fine of $500 apiece. The four violations under Notice to Show Cause GA11890496 should likewise result in a civil fine of

$500 apiece. In so concluding, the concept that fines should be based on the number of Notices to Show Cause instead of the number of proven violations is rejected, and it is determined that the mitigation called for in Subsection 561.706(2) has been offset by the continuing nature of the violations in the relatively short time frame of 14 months.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic and Beverages and Tobacco enter a Final Order dismissing Notices to Show Cause GA11900209 and GA11900254; finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890374, imposing a total of $1750 in civil fines therefor; and finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890496, imposing a total of $2000 in civil fines therefor.

RECOMMENDED this 28th day of June, 1991, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 28th day of June, 1991.

ENDNOTES

1/ Respondent demonstrated that before being informed by authorities that Respondent could not legally confiscate fake, altered, or underage IDs, Respondent had, within substantially the whole of the 14 months spanning the four Notices to Show Cause, confiscated approximately 200 fake, altered, or underage IDs.

2/ Petitioner argued that mere "possession" as used in the parties' stipulation implies "consumption," and that even if it did not, "consumption" must be reasonably inferred from "possession." That is neither the clear language nor the import of the parties' stipulation. See, Finding of Fact 12. Petitioner put on no evidence of consumption and, quite resonably, Respondent did not put on any evidence to rebut what Petitioner had not presented. Consequently, there is no evidence of "consumption" or of "allowing or permitting to consume."

3/ Id.

4/ Id.

5/ Id.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4814

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:

1, 2, 3, 4, 5, 6, 7 8, 9, 10, 12, 19, 27, and 28 are accepted, except for legal argument and unnecessary or subordinate material.

11, 13, 15, 17, 18, 20, 21, 22, 23, 24, 25, and 26 are rejected as not proven and for the reasons more specifically set out in the Recommended Order.*

Sentence 1 of PFOF 14 is rejected as not proven and for the reasons more specifically set out in the Recommended Order.* The remainder of PFOF 14 is accepted, except for legal argument and unnecessary or subordinate material.

Sentences 1 and 2 of PFOF 16 is accepted except for legal argument and unnecessary or subordinate material. Sentence 3 is rejected as not proven and for the reasons more specifically set out in the Recommended Order.*

29, 30, and 31 are rejected as legal argument. The credibility of Eileen Tenly has been discussed within the Recommended Order. The so-called "admissions" made to Mr. Cooter are also discussed therein.

* Of necessity, some of Petitioner's legal argument which was included in its proposed facts (mostly as footnotes) was addressed in both the Findings of Fact and Conclusions of Law of the Recommended Order so as to fully resolve this issue, and therefore, it is not readdressed here.

Respondent's PFOF:

1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, and 21 are

accepted, but unnecessary, subordinate, or cumulative material has been simplified or eliminated.

17 has been modified to more accurately reflect the credible record evidence as a whole. To the degree modified, it is rejected as not proven.

COPIES FURNISHED:

Thomas A. Klein

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

David Rutman, Esquire Sy Chadroff, Esquire 2700 S.W. 37th Avenue

Miami, Florida 33133-2728

Richard W. Scully, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, FL 32399-1000

Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000

Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000

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: 90-004814

Orders for Case No: 90-004814