STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2654

)

)

LOPEZ GROCERY, INC., d/b/a )

LOPEZ GROCERY, INC., )

)

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 July 9, 1992, in Melbourne, Florida.

APPEARANCES

For Petitioner: Nancy C. Waller, Esquire Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Elena and Serafin Lopez

214 Emerson Drive

Palm Bay, Florida 32907 STATEMENT OF THE ISSUES

A notice to show cause dated February 5, 1992, alleges that Respondent, through its officer, Elena Lopez, sold alcoholic beverages to an underage person. The issue here is whether this violation occurred and, if so, what license discipline is appropriate.

PRELIMINARY STATEMENT

The licensee, through Ms. Lopez, denied the charges and requested this administrative proceeding.

At the hearing, Petitioner presented testimony of Special Agency Elizabeth Fulton, Division of Alcoholic Beverages and Tobacco; Angela Valente; and Cpl.

Jeffrey Kraynick, Palm Bay Police Department. Petitioner's eight exhibits were received in evidence, including two bottles of beer (Petitioner's exhibit #4) which were returned to custody of the Palm Beach Police Department.

Serafin and Elena Lopez testified on behalf of the Respondent and presented no additional exhibits or testimony.

After the hearing, a copy of an arrest report and court minutes of the outcome of Ms. Lopez' trial were sent by an attorney, William Meyer. These have been disregarded as ex parte communication. They are also irrelevant in this non-criminal license discipline care.

The Petitioner submitted proposed findings which have substantially been adopted in this recommended order. No transcript was filed.

FINDINGS OF FACT

1. Respondent, Lopez Grocery, Inc., is the holder of alcoholic beverage license number 15-02358, series 2APS, for the premises at 214 Emerson Drive, N.W., Palm Bay, Brevard County, Florida.

   
   

   Serafin Lopez and his wife, Elena, are President and Vice-President, respectively and are sole owners of the business.

   
   

2. On November 3, 1991, the Palm Bay Police Department was conducting surveillance of Lopez Grocery as a result of reports that it was selling alcoholic beverages to underage persons.

   
   

   Cpl. Kraynick, a seven year law enforcement officer, was assigned to the surveillance on the 3:00 p.m. to 1:00 a.m. shift.

   
   

3. Cpl. Kraynick was positioned about 40 feet outside the store, at the edge of the woods, with a clear view of the cash register and clerk inside the store.

   
   

   The store is at the end corner of a small strip shopping center. The other stores were vacant at the relevant time.

   
   

4. At approximately 7:00 p.m., the parking lot was empty and the store was well lit from within.

   
   

   Cpl. Kraynick observed a brown pick-up truck pull up to the store. A white juvenile female went in, brought a six-pack of beer to the counter, got cigarettes and exited. She went to the passenger side of the truck to speak with the passenger and reentered the store where she picked up several more loose beers and paid for her purchases. The clerk bagged the beer and made change without requesting identification. The juvenile left the store with the beer.

   
   

5. Cpl. Kraynick's original instructions had been to simply conduct the surveillance and notify his partners to make a traffic stop and arrest. When he learned that the partners were called out, he pursued the brown pick-up in his vehicle, and made the stop about 1/4 mile from the store. As soon as he activated his lights, the pick-up pulled over. He obtained a driver's license from the driver, the same person who had purchased the beer, and he confirmed that she was sixteen.

   
   

6. Cpl. Kraynick confiscated the beer, still cold, from behind the driver's seat. The passenger had stashed an opened beer in her purse, where it had spilled, leaving an empty bottle.

   After releasing the girls to their parents, Cpl. Kraynick returned to Lopez Grocery.

   
   

7. When he returned, he found Mr. Lopez, who explained that his wife had gone to buy a lottery ticket.

   
   

   She returned around 7:45 p.m. and was arrested for selling alcoholic beverages to an underage person.

   
   

8. At the hearing, Angela Theresa Valente, the girl who purchased the beer, unequivocally identified Ms. Lopez as the clerk who made the sale. At no time was she asked her age or was asked for identification by Ms. Lopez.

   
   

   Angela was 16 at the time of the sale; she was born on December 28, 1974.

   Her appearance is that of a teenager.

   
   

9. Ms. Lopez denies that she made the sale and claims that she was away purchasing lottery tickets when the sale was made. She and her husband are the only employees.

   
   

   Ms. Lopez also denies that her store sells Coors Light beer, the loose beer confiscated by Cpl. Kraynick. The grocery does sell Michelob Light, the six- pack that was confiscated.

   
   

   Cpl. Kraynick observed Coors Light singles in the grocery cooler the night that the arrests were made.

   
   

10. Ms. Lopez' testimony was substantially less credible than that of Cpl. Kraynick and Angela Valente, both of whom positively identified her as the person who made the sale. Ms. Lopez claimed to have witnesses who could establish that she was not at the store around 7:00 p.m. when the sale was made, but she did not produce those witnesses.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

12. Section 561.29(1), Florida Statutes, provides that the Division of Alcoholic Beverages and Tobacco is given authority to revoke or suspend the beverage license of any person holding a license under the Beverage Law when it is determined that the licensee or his or her agents, officers, servants, or employees on the licensed premises violated any of the laws of this state or the United States.

    
    

13. Section 561.29(3), Florida Statutes, provides that the Division may impose a civil penalty against the licensee, not to exceed $1,000, for any violation of the beverage laws.

    
    

14. Section 562.111(1)(a), Florida Statutes, makes it 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.

    
    

15. Petitioner proved the allegations of sale to an underage person by clear and convincing evidence. The acts or omissions of Respondent described in the Findings of Fact above are violations of the above-cited statutes.

16. It is the responsibility of the licensee 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, 480 So.2d 1354 (Fla. 1st DCA 1986); Lash, Inc. v. Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982). In this case, the licensee's corporate officer exercised no diligence. Elena Lopez never asked for an age or identification and the purchaser was plainly underage.

    
    

17. While there are many cases addressing underage sales, the following three are factually similar, as they involve a single sale by a licensee or corporate officer. In Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Harold Haffner, Jr., and Catherhine B. Haffner, d/b/a Bay's Produce Market, 12 FALR 733 (final order entered 10/16/89), the agency adopted the hearing officer's recommendation of a 30 day suspension and a $500 civil penalty. In Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Coast Line Petroleum Corp., d/b/a Tom's Texaco, 12 FALR 3348 (final order entered 4/18/90, the agency revoked the license, but suspended revocation contingent upon payment of a $2,000 fine and sale of the license to a qualified purchaser. In Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. James Carpenter d/b/a Pony Keg, 10 FALR 2473 (final order entered 4/8/88), the agency adopted the hearing officer's recommendation of 30 days suspension and a civil penalty of $500.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Respondents' alcoholic beverage license # 15-02358, series 2-APS be suspended for 30 days and that a civil penalty of $500 be imposed.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of September 1992.

MARY CLARK

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 1st day of September 1992.

COPIES FURNISHED:

Nancy C. Waller, Esquire Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Elena and Serafin Lopez

214 Emerson Drive

Palm Bay, Florida 32907

Richard W. Scully, Director Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Donald D. Conn, General Counsel Department of Business Regulation The Johns Building

725 South Bronough Street 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 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: 92-002654

Orders for Case No: 92-002654