STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION DIVISION OF ) ALCOHOLIC BEVERAGES AND ) TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5340

) JAYPRAKASH PATEL, d/b/a ) UNITED DISCOUNT BEVERAGE, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this cause before The Honorable Stephen F. Dean, Hearing Officer with the Division of Administrative Hearings, in Gainesville, Florida, on January 15, 1991. The appearances were as follows:

APPEARANCES

For Petitioner: Eric S. Haug, Esquire

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

For Respondent: Don Reid

Post Office Box 133 Gainesville, Florida 32602

STATEMENT OF THE ISSUES

Did the licensee repeatedly sell alcoholic beverages to persons under the age of 21?

PRELIMINARY STATEMENT

At the hearing, Petitioner presented the testimony of Lieutenant Donald G. O'Steen and Law Enforcement Investigator Curtis L. Jernigan, Florida Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Joseph W. Donnelly, Kathlene L. Donnelly, Joseph P. Donnelly, Madonna Bristow and Glen Molander. Petitioner's five exhibits were received into evidence. Respondent introduced one witness and offered one exhibit.

The hearing transcript was not ordered by the parties and they were granted leave until February 5, 1991, to file Proposed Recommended Orders. The entry of the recommended order was further delayed by the indication by Respondent's counsel that proposed findings would be filed which were not forthcoming, subsequently.

The Respondent did not file proposed findings. The proposed findings of Petitioner were read, considered, and adopted except for paragraph 2 of the proposed findings of fact, which was irrelevant.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Jayprakash Patel, d/b/a United Discount Beverage, held alcoholic beverage license number 11-00952, Series 2-APS, for a premises known as United Discount Beverage, each side of

   U.S. Highway 301, Hawthorne, Florida.

   
   

2. Joseph Donnelly, a person under the age of 21, purchased alcoholic beverages on April 27, 1990, to wit: three six packs of beer and two bottles of MD 20/20 wine, without identification at United Discount Beverage from Kirtie B. Patel, an employee of the business. Joseph P. Donnelly had purchased alcoholic beverages without identification on previous occasions at United Discount Beverage from Kirtie B. Patel.

   
   

3. Madonna Bristow observed Joseph B. Donnelly purchase alcoholic beverages from United Discount Beverages on April 27, 1990 and on several other occasions previous to that date.

   
   

4. Mr. Glen Molander observed Joseph P. Donnelly and Madonna Bristow carrying packages from United Discount Beverage on April 27, 1990.

   
   

5. A vehicle driven by Joseph P. Donnelly was involved in an automobile accident on April 27, 1990, and was towed to a secured impoundment on that date. His mother, Kathlene L. Donnelly, recovered six cans of beer and two bottles of MD 20/20 wine from the car. Mrs. Donnelly took the beer and wine to her residence where she concealed it. On May 2, 1990, Inv. Jernigan the six cans of beer and two bottles of MD 20/20 wine obtained from the Donnelly's residence. Inv. Jernigan marked these items as evidence and stored in the vault at the Gainesville Division of Alcoholic Beverages and Tobacco District Office.

   
   

6. Investigator Jernigan identified at hearing the six cans of beer and two bottles of MD 20/20 wine he had recovered from the Donnelly's residence. Joseph P. Donnelly identified this evidence at hearing as a portion of the alcoholic beverages which he had purchased at United Discount Beverage from Kirtie B. Patel on April 27, 1990.

   
   

7. Joseph Donnelly and Madonna Bristow observed many other individuals who they knew to be under twenty-one years old purchase alcoholic beverages from United Discount Beverage without identification.

   
   

8. Kirtie B. Patel plead guilty to a charge of selling alcoholic beverages to a person under age 21 in violation of Section 562.11(1)(a), Florida Statutes, Petitioner's exhibit number 1, to wit: underage operative M. Goldtrap on December 14, 1989.

   
   

9. Kirtie B. Patel plead nolo contendere to a charge of selling alcoholic beverages to a person under age 21 in violation of Section 562.11(1)(a), Florida Statutes, Petitioner's exhibit number 2, to wit: Joseph P. Donnelly on April 27, 1990.

10. Licensee, Jayprakash Patel, has previously admitted in an administrative proceeding to have been in violation of Section 562.11(1)(a) within Section 561.29(1), Florida Statutes, to wit: three sales of alcoholic beverages by his employees to persons under the age of 21 during the period May 11, 1989 through December 14, 1989.

    
    

11. Jayprakash Patel has become a Responsible Vendor since April 27, 1990.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

13. Section 561.29(1), Florida Statutes, authorizes the Division of Alcoholic Beverages and Tobacco to revoke or suspend a beverage license upon a showing of:

    
    

    1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises . . . of any of the laws of the state or of the United States,

       . . . or permitting another on the licensed premises to violate any of the laws of this state or of the United States, . . . .

    2. Violation by the licensee or, if a corporation, by any officers thereof, of any laws of this state or any state or territory of the United States.

       
       

14. Selling alcoholic beverages to persons under the age of 21 is a violation of Section 562.11(1)(a), Florida Statutes.

    
    

15. Section 561.29(3) provides that the Division of alcoholic Beverages and Tobacco "may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, or any rule issued pursuant thereto, not to exceed $1,000.00 for violations arising out a single transaction."

    
    

16. Licensee, Jayprakash Patel, within the past 12 months, has served a 20-day alcoholic beverage license suspension and paid a $1,000.00 civil penalty for three sales of alcoholic beverages by employees to persons under the age of

    21 in violation of Section 562.11(1)(a), Florida Statutes.

    
    

17. The evidence presented in this case is clear and convincing that the licensee failed to exercise a minimal degree of due diligence by allowing the repeated sales of alcoholic beverages to persons under the age of 21 in violation of Section 562.11(1)(a) and Section 561.29(1), Florida Statutes. This violation is exacerbated by the fact that the licensee was on notice of prior illegal sales of alcoholic beverages to persons under age 21 at his licensed premises.

    
    

18. The penalty guidelines of the Division of alcoholic Beverages and Tobacco provide that a second Notice to Show Cause served within four years without acceptable mitigation should result in license revocation. The only mitigating factor presented was that the licensee became a Responsible Vendor several months subsequent to the instant violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the alcoholic beverage license held by Respondent, Jayprakash Patel, d/b/a United Discount Beverage, license number 11-00952, Series 2-APS, be suspended for six (6) months and a $1,000.00 civil penalty be imposed.

RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida.

STEPHEN F. DEAN

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 27th day of March, 1991.

COPIES FURNISHED:

Eric S. Haug

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

Don Reid

Post Office Box 133 Gainesville, FL 32602

Leonard Ivey, Director

Division of Alcoholic Beverages and Tobacco

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 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. YOU SHOULD CONTACT 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: 90-005340

Orders for Case No: 90-005340