STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 92-5014

) RASEM MOHAMMAD AWADALLAH d/b/a ) SAM'S BIG APPLE #2 )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on April 20, 1993 in Bartow, Florida.

APPEARANCES

For Petitioner: Miguel Oxamendi, Esquire

Department of Business Regulation

725 South Bronough Street Tallahassee, FL 32399-1007

For Respondent: Rasem M. Awadallah, pro se

Sam's Big Apple #2

110 Manor Drive Bartow, FL 33830

STATEMENT OF THE ISSUES

Whether Respondent sold alcoholic beverages to a person under the age of 21 in apparent violation of Subsection 562.11(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

By its notice to show cause filed herein issued June 26, 1992, Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, (herein Petitioner or the Division) seeks to impose disciplinary actions against Respondent, Rasem Mohammad Awadallah, d/b/a Sam's Big Apple #2 beer and wine package license.

At the hearing, Petitioner presented the testimony of one of the Division's law enforcement officers, Special Agent Steven D. Green; and three City of Bartow Police Department Officers: Detective Michael Hamil, Lieutenant James Byrd and former patrolman Michael Shane Marcum. The Division introduced one exhibit which was received in evidence at the hearing. Respondent testified on

his own behalf. At the hearing, Petitioner's motion to amend the notice to show cause to reflect the correct offense day of February 13, 1992 was granted. Also at the hearing, Petitioner's motion to correct a scrivener's error in the notice to show cause to correctly state the name of the underaged person as Michael Shane Marcum was granted.

Petitioner filed a proposed recommended order which was considered in preparation of this recommended order. Likewise, Respondent filed a letter essentially commenting on the evidence and his conclusions as to why his license should not be disciplined. It is not possible to make specific rulings on Respondent's characterizations, comments and conclusions. Petitioner's proposed findings which are not incorporated herein are the subject of specific rulings in an appendix.

FINDINGS OF FACT

Based on my observation of the witnesses, their demeanor while testifying and the entire record compiled herein, the following relevant factual findings are made.

1. During times material, Respondent, Rasem Mohammad Awadallah, held license number 63-02202, series 2-APS authorizing the sale of alcoholic beverages at Sam's Big Apple (Sam's) which is situated at 110 Manor Drive, Bartow, Polk County, Florida. Respondent is the owner of Sam's.

   
   

2. On February 13, 1992, law enforcement officers from the Bartow Police Department conducted an investigation of businesses, including Respondent's, that were allegedly making sales of alcoholic beverages to persons under the age of 21. The investigation was prompted by several citizen complaints alleging that Respondent and other businesses were selling alcoholic beverages to underaged persons at their licensed premises.

   
   

3. On February 13, 1992, Lieutenant James Byrd and Patrolman Michael S. Marcum went to Sam's to investigate the complaints of alcoholic beverage sales to minors. Patrolman Marcum's date of birth is October 24, 1972. As such, he was 19 years of age on February 13, 1992.

   
   

4. Lieutenant Byrd instructed Patrolman Marcum to enter Sam's and attempt to purchase alcoholic beverages. He was instructed that if at any time identification was requested of him, he would produce his driver's license which displayed his correct date of birth. Patrolman Marcum was further instructed that if he was asked his age by Respondent or clerks at Sam's, he would truthfully answer.

   
   

5. Patrolman Marcum entered Sam's on February 13, 1992, retrieved a six- pack of "Milwaukee's Best Beer" from the cooler and approached the sales counter. Patrolman Marcum purchased the beer from Respondent who made the sale without asking whether he was at least 21 years of age or for identification which would show his age. The sealed cans of beer that Patrolman Marcum purchased from Respondent were clearly marked as alcoholic beverages.

   
   

6. Upon exiting the premises, Patrolman Marcum and Lieutenant Byrd rendezvoused with Detective Mike Hamil approximately fifteen minutes thereafter. Patrolman Marcum was provided a physical description of the person from whom he had purchased the beer and that person was later identified as Respondent.

7. At the hearing herein, Patrolman Marcum identified Respondent as the person who sold him the six-pack of beer on February 13, 1992 at Sam's.

   
   

8. Respondent was arrested approximately one month after the February 13, 1992 date of sale. He was later tried and convicted of selling an alcoholic beverage to a person under the age of 21. The delay in arresting Respondent was based on the delay in obtaining an arrest warrant for Respondent's arrest and based on ongoing investigations by the Bartow Police Department. Detective Hamil feared that an arrest of Respondent early in the course of the investigation would alert other area vendors that the Bartow police were engaged in an investigation which would possibly dissuade any other licensed vendors predisposed to such violations.

   
   

9. Respondent denies having sold alcoholic beverages to any minors on February 13, 1992 to include Patrolman Marcum. However, Respondent admits that he was at Sam's on that date for approximately one hour. It is more likely than not, that Respondent sold alcoholic beverages to a minor, Patrolman Marcum, on February 13, 1992 as alleged in the notice to show cause filed herein.

   
   

10. Respondent has not been the subject of prior disciplinary action by the Department.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this action pursuant to Subsection 120.57(1), Florida Statutes.

    
    

12. The authority of the Petitioner is derived from Chapter 562, Florida Statutes.

    
    

13. Respondent, as holder of an alcoholic beverage license, is subject to the disciplinary guides of Chapter 562, Florida Statutes.

    
    

14. Section 562.11, Florida Statutes (1991) provides in pertinent part that:

    
    

    (1)(a) It is unlawful for any person to sell

    . . . or permit to be served alcoholic beverages to a person under 21 years of age

    . . . . Anyone convicted of violation of the provisions . . . is guilty of a misdemeanor of the second degree, punishable as provided in Subsection 775.082 or Section 775.083.

    
    

15. Section 562.11(1)(b), Florida Statutes provides that a defense to a violation of Section 562.11(1), is that the underaged person was of legal age or that the appearance of the person was such that an ordinary prudent person would believe him to be of legal age to purchase the alcoholic beverage and if the licensee carefully checked one of the forms of identification listed in the statute. Respondent, as noted hereinabove, did not ask to see identification from Patrolman Marcum which would have established his age.

    
    

16. Petitioner established, by clear and convincing evidence, that Respondent violated Subsection 562.11(1)(a), Florida Statutes by selling alcoholic beverages to a person under the age of 21 as alleged in the notice to show cause filed herein.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner enter a Final Order finding that Respondent violated Section 562.11(1)(a), Florida Statutes and that he be ordered to pay a civil penalty of

$500.00 to the Division within thirty days of the entry of the Department's Final Order and that Respondent's license number 63-02202, series 2-APS, be suspended for a period of ten days. 1/

DONE AND ENTERED this 14th day of June, 1993, in Tallahassee, Florida.

JAMES E. BRADWELL

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 14th day of June, 1993.

ENDNOTE

1/ Based on the mitigating factors herein indicating that this is Respondent's first offense, this recommendation is within the Division's range of penalties for similar violations.

APPENDIX TO RECOMMENDED ORDER IN CASE #92-5014

Rulings on Petitioner's proposed findings of fact:

Paragraph 3, adopted as modified, paragraph 4, Recommended Order. Paragraph 5, adopted as modified, paragraph 6, Recommended Order. Paragraph 9, rejected unnecessary and not probative of the issues posed.

COPIES FURNISHED:

Richard Scully, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1007

Donald D. Conn, General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

Miguel Oxamendi, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

Rasem M. Awadallah Sam's Big Apple #2

110 Manor Drive Bartow, Florida 33830

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: 92-005014

Orders for Case No: 92-005014