)
RECOMMENDED ORDER
A hearing was held in this case in Tampa, Florida on December 18, 1996, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Miguel Oxamendi, Esquire
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-1007
For Respondent: Craig E. Behrenfeld, Esquire
Barnett, Bolt, Kirkwood & Long 601 Bayshore Boulevard, Suite 700
Tampa, Florida 33606
STATEMENT OF THE ISSUES
The issue for consideration in this matter is whether Respondent’s alcoholic beverage license, Series 3-PS, No. 39- 01099, for the premises located at 13508 Florida Avenue, Tampa,
should be disciplined because of the matters alleged in the Administrative Action filed herein.
PRELIMINARY MATTERS
By Administrative Action dated August 21, 1996, the Department of Business and Professional Regulation’s Division of Alcoholic Beverages and Tobacco seeks to discipline Respondent’s alcoholic beverage license identified above, issued for the noted premises because, it alleges, on August 7, 13 and 20, 1996, employees of the Respondent sold alcoholic beverages to underage persons. Respondent requested formal hearing on the allegations and this hearing ensued.
At the hearing, Petitioner presented the testimony of Benjamin D. Nenno, one of the minors to whom the proscribed beverages were sold; Randall R. West, William P. Fisher and George W. Miller, all agents with the Division; James Davison and Steven Wilder, both former employees of the Respondent; and, by deposition taken after the hearing, Reinaldo Montoto, Jr and Keith B. Hamilton, a district manager for the Respondent and a Special Agent with the Division, respectively. Petitioner also introduced Petitioner’s Exhibits 1 through 13. Respondent presented the testimony of David Heuermann, its vice president for human resources; Jacqueline N. Iglesias, its district training coordinator; Kevin W. Sosa, a clerk at store 619/620 for more than two years; and, by deposition taken after the hearing, Tony Odorosio and John Stickles, store manager and second
assistant manager at store number 619/620. Respondent also introduced Respondent’s Exhibits A through R.
Transcripts of both the formal portion of the hearing and the subsequent taking of testimony by deposition were furnished. Subsequent to the receipt thereof, Counsel for both parties submitted Proposed Findings of Fact which have been carefully considered in the preparation of this Recommended Order.
FINDINGS OF FACT
At all times pertinent to the allegations herein, Petitioner, Division of Alcoholic Beverages and Tobacco, was the state agency in Florida responsible for the licensing of outlets for the retail sales of alcoholic beverages, and for the enforcement of the liquor laws of this state.
By stipulation of fact, the parties agreed than on or before August 7, 1996, Benjamin Nenno, a male under the age of 18 at the time, became involved in an investigation of Respondent’s retail sales facility in issue by the Division. On the evening of August 7, 1996, Nenno was briefed and searched by agents of the Division and allowed to carry with him only a certain amount of cash and a driver’s license which clearly showed him to be under 21. He was instructed by the agents to indicate he was only 17 if he were to be asked by a store employee and to produce the driver’s license if it were to be requested. Specifically, he was instructed not to make any misrepresentation of fact in order to get the clerk to make a sale to him.
Thereafter, Nenno entered the Respondent’s store number 620, located at 13508 Florida Avenue in Tampa and asked to purchase a bottle of Captain Morgan’s Special Rum, an alcoholic beverage which would be unlawful for him to purchase. When he did so, the Respondent’s clerk, identified as Freddy Posey, asked to see Nenno’s identification and Nenno produced the driver’s license which reflected he was under 21. Posey looked at it but made the sale anyway. The sale was witnessed by Special Agent Randall West who confirmed the facts stated above. When Nenno left the premises he met with Special Agents West and Miller who confiscated the beverage. West then entered the store and issued a notice of Violation as well as a vendor check list to Posey which was to be filled out by him and returned to the Division.
The investigation continued on August 13, 1996 when Nenno, again under the control of the Division personnel, was again searched and instructed and sent back into the Respondent’s premises by Agents Hamilton and Fisher to again attempt to purchase a bottle of Captain Morgan’s Special Rum. This time Nenno dealt with James Davison, an employee of the Respondent, who asked Nenno to produce a driver’s license. When Nenno did as he was asked, Davison looked at it but nonetheless made the sale even though the license clearly showed Nenno was under 21. This sale was witnessed by Agent Fisher. In this case, however, after having made the sale, Davison came outside the store after Nenno, but after looking around the parking lot, re-entered the store.
The Division agents again issued a Notice of Violation and a checklist which was subsequently returned to the Division filled out.
On August 20, 1996, the investigation continued with the Division agents this time using Nicole Finch, a female under age 21, who was instructed and briefed as Nenno had been. She, too, was left with only some cash and her driver’s license which reflected her to be under 21. This time, Finch entered the Respondent’s store Number 621 in the company of Agent West and purchased a 200 ml bottle of Bacardi Rum, an unlawful alcoholic beverage for her to buy, from Steven Wilder, the clerk on duty. Before making the sale, Wilder asked to see Finch’s driver’s license, which she showed to him, but after seeing it, he still made the sale.
When she left the store, Ms. Finch met Special Agents West and Fischer who subsequently issued a Notice of violation to the Respondent. When questioned by West, Wilder indicated he had received no training nor was he aware of any training program in place regarding sales to underage persons.
Special Agent West, who has been an investigator with the Division for more than 18 years, and who has participated in many beverage investigations such as this, entered the Respondent’s store on August 7, 1996 after Nenno had left. He arrested the clerk, Mr. Posey and issued the Notice of Violation. In the course of the transaction, he questioned Posey about how
he was trained regarding the sales of alcohol to minors with specific emphasis on whether Respondent has an ongoing training program and whether there were signs or other notices proscribing the sale of alcohol to minors. In response to these questions, Posey indicated he had received verbal training but no formal classroom or video training and had been given no forms to read and sign regarding this.
When West looked for signs relating to the practice of checking patrons’ identification or indicating a policy of “no sales to those under 21”, he could find no signs posted or buttons worn by employees to notify prospective patrons of the company’s practice, though the Florida Beverage law does not require buttons to be worn. West made the same observations when he entered the store after the August 20, 1996 purchase by Finch. On this second occasion, in response to West’s questions about the training given by Respondent, Wilder, the clerk involved in that sale, indicated no training programs were in place. At that time, Mr. West could see no changes that had been made in the premises since he was last there on August 7, 1996. Further, West could not find any indication that the Respondent had posted a qualifying birth date for the purchase of alcoholic beverages.
In response, Respondent offered into evidence a copy of a sign which, it claims, is posted on the cash register in each store, which refers to the requirement for a person to be 21 years old, (born before the purchase date in 1975) to purchase
alcohol. Mr. West, who went behind the cash register to obtain information from the liquor license, did not see a copy of this sign posted in Respondent’s store on either August 7 or August 20, 1996.
The Notice of Violations issued by the Division agents were to put the licensee on notice that a violation had occurred so that the employee cannot keep the information from the license holder.
Agent Fisher observed the sale to Nenno which took place on August 13, 1996. When he went into the store after the purchase took place, Fisher asked the sales clerk if he had asked to see Nenno’s identification and he had. Fisher also asked the clerk about training offered by Respondent regarding the checking of identification. This employee, who has worked for the company for approximately 16 years, indicated he had seen at least one video which concerned checking identification and admitted he had been required to sign a certificate that he was aware of the rules.
Agent Fisher also looked for signs in the store regarding the Respondent’s policy regarding sales to minors but did not see any. When he participated in the operation there on August 20, 1996, he asked the clerk on duty at that time if he had been trained regarding buyers’ identification and was told that since he had been hired by the company in January 1996 he had worked in the warehouse exclusively and had subsequently
worked in the store only two days. He had been given no training at all in customer identification before he started working in the store. When Fisher looked behind the counter for some sort of warning sign, he could find none, nor could he find any in the back near the beer cooler.
Mr. Davison worked for the Respondent for approximately
16 years prior to his discharge because of the instant sale to a minor. He had worked as manager of store number 620 for about two years before his firing, and his job was to maintain stock and insure the store was properly manned at all times it was open. He employed two other individuals at the liquor outlet to cover the entire week. Only one person was on duty at a time.
On the day he made the sale which caused him to be fired, he was the only person on duty. Periodically, he would receive a document from the company containing the company’s policies which he was to read and sign, but nothing more than that, and even they did not come very often. He claims, and it is found, that he was never told he was to train his employees regarding sales of alcohol to minors. He claims that he was never shown a training video even though he signed the document saying he did. He did that because on the one occasion he asked a manager about it, he was told to sign it and not worry about it. Even though each store had a VCR, the entire training process to which Davison was exposed consisted of the reading and signing of this document which was given to him by Mr. Odorosio,
the store manager. None of the training reflected on his personnel records as having been given him was, in fact, not given.
Davison claims that when he was hired 16 years ago he was not given any training about sales of alcohol to minors and has never been given any since. However, he admits that each store is furnished a chart reflecting the various endorsements to driver’s licenses which are used. He also noted that his store had one sign relating to lawful alcohol sales, given to him by a beverage salesman, which, about two months before the incident, he put on the front of the counter where the customers could see it. He claims that on the evening the agents came to the store, they did not ask to see it. If they had done so, he would have shown it to them. Davison recognized one of the signs placed in evidence as one he has seen in other of Respondent’s stores. He has never seen the other one.
As Davison recalls it, Respondent’s policy is to terminate anyone caught selling alcohol to minors. After the incident of August 7, 1996, Mr. Odorosio advised him to be on the lookout because he felt the Division agents would be back.
Davison admits having made the sale to the teenager in question. However, he claims, the individual had just had a birthday which Davison mistakenly believed was the 21st. In fact it was the individual’s 17th birthday. He also claims that in the two years he worked at store 620, he always asked potential
underage patrons for identification unless he knew the person. He claims he has always refused to sell alcohol and would not knowingly sell alcohol to minors. In fact, on the night he sold to Nenno, August 13, 1996, when he realized he had sold to a minor, he went outside, he claims, to find Nenno and give him
back his money. The four-year difference in age belies Davison’s claim of mistake and that claim is rejected.
Mr. Wilder, the assistant manager on the grocery store night shift since January 30, 1996, had worked in the liquor store, temporarily, for only a day and a half at the time of the incident. He was filling in until a new clerk could be brought in from another store. When he received his orientation training in January 1996, he was shown a video and exposed to a group class on paperwork, the handbook of rules and regulations, and the sale of alcohol, after which a test was administered. That was the only time he was shown any video or was involved in any personnel meeting relating to alcohol sales. When he went to work at the liquor store, he was given training only on the operation of the cash register. The liquor store registers do not have the capability to punch in the buyer’s date of birth. However, the day he started in the liquor store, Mr. Odorosio told him to always check a purchaser’s identification and never to sell to anyone under the age of 21. This was the day before he sold the rum to Ms. Finch, and he claims this sale was caused by human error. That very day, he claims, he had make “cheat
sheets” which showed the lawful dates for the purchase of tobacco and alcohol, and claims he merely read from the wrong sheet.
Officials of the Division have made themselves available to work with retailers of alcoholic beverages to bring them up to the sales standards set for a reasonable industry standard as outlined in the Florida Statutes. The information contained on the alcohol compliance instructional guidelines utilized by Respondent on which clerks and cashiers acknowledge their understanding that violation of those policies may result in termination of their employment is not sufficient orientation from an educator’s standpoint. In the opinion of Agent Miller, the minimum acceptable standards call for training of personnel in alcohol control three times a year, as once a year is not enough.
Mr. Miller indicates he has discussed the Respondent’s situation with Mr. Heuermann, the Respondent’s vice-president in charge of personnel training, at Heuermann’s behest on approximately four occasions, and explained his concerns over the violations and what Respondent could do to improve its program. The first discussion took place in June 1996, shortly after an arrest of another Respondent employee and two months before the instant arrests. At that time they discussed what could be done to alert personnel and modify registers to require checking of ID. It was reported at that time that some employees were overriding this; however, the company is in the process of
converting all their cash registers to those which require the customer’s birth date be inserted. They were put in grocery stores first and not in the liquor stores because the liquor stores use a different system. As funds for conversion become available the registers in the liquor stores will also be converted.
Company trainers also discusse training standards for employees and Respondent’s need to insure that the lowest level of employees, who deal with the public, are properly trained. Though Mr. Miller made several suggestions as to what Respondent could do to improve its educational program, neither he nor any other Division agent was asked to participate in the training.
According to Mr. Heuermann, Respondent has over 100 grocery stores and 34 liquor stores and employs approximately 10,000 people, only 1,500 to 2,000 of whom are involved in the sale of alcohol. No one under the age of 18 is hired to work in a liquor store. Company trainers check to insure the age of employees as does the main office. By the same token, the company would not hire anyone as a liquor store manager who had been convicted within the prior five years of a violation of the liquor law, of prostitution, drugs or a felony. The company’s application for employment has a space for listing such an offense and the company completes a background check on its applicants.
Respondent contends it has a formal training program for alcohol law compliance. The orientation program for all new employees includes a video tape, a work sheet, and instructional guidelines, all dealing with alcohol compliance, to be signed by all new hires. At training, the trainer goes through the employee handbook, which treats alcohol compliance, sexual harassment, AIDS, ADA, etc., and this training is required of all new employees, both managerial and non-managerial, but it is sketchy at best.
Until 1995, such training as existed was centralized but then was made the responsibility of the individual store manager. Sometime thereafter, the training was placed under the human resources directorate and it is again centralized whenever possible, as in the metropolitan areas where employees from several stores easily can be brought together for training. The company also has a formal substance abuse policy under which the use of illegal drugs or alcohol at work is prohibited because of its impact on safety and other workers.
When Mr. Heuermann was advised by the store manager of the incident involving Mr. Posey he immediately instructed the manager to fire Posey and sent the information concerning the incident to all his managers for use in training in the individual stores. He also instructed the district managers to reinforce alcohol training in the stores because he wanted to insure this training met all requirements. He called Mr. Miller
at the Division to see what could be done and implemented everything Miller suggested.
When Heuermann learned of the Davison case he again reviewed the facts and determined to fire Davison as well. He met with the senior vice-president of operations for Respondent who directed that no one but management personnel be put in that store and reemphasized the need for training. Heuermann also went to the store and advised the district manager that his job was in jeopardy if another violation occurred.
When the third violation thereafter occurred, Mr. Heuermann called Agent Miller, Mr. Odorisio, Mr. Metcalfe and the corporations CEO. At that time, Miller made some suggestions which included a paycheck reminder which Heuermann implemented with a copy being stapled to every one of the 10,000 paychecks issued that month.
Mr. Heuermann noted that after the incident involving Mr. Posey, Agent Miller advised him that Division agents would be back. Heuermann passed that information on to the district and store managers and instructed them to advise their employees to be careful.
Jacqueline N. Iglesias, Respondent’s district training coordinator since October 1996’ was previously the orientation director. Employee training for the Respondent’s Hillsborough district, as noted previously herein, is done in group sessions involving between 12 and 25 people, on Mondays, Thursdays and
Saturdays for three-hour sessions conducted twice a day on those days. The instruction covers safety, alcohol compliance and employee appearance and standards.
With regard to the instruction concerning alcohol compliance, a form containing relevant information is used along with a video presentation and a multiple choice examination on the provisions of the alcohol compliance law which is administered while the video is playing. The video shown covers hours of sale, sales to minors, sales to those already intoxicated and how to handle unruly patrons. The course material advises the employee to call management in a questionable situation. It also covers acceptable and altered identification, what to look for and what to do in a case of suspected alteration. Specifically, employees are advised to refuse a sale to anyone whose identification is suspect, and employees are warned of the consequences, including job loss, if strict compliance with the law and the company’s policies are not followed. This training program has been in effect since August, 1996. Before that time, the training was done by the individual managers who, according to Iglesias, covered the same information. Though this program appears thorough at first blush, in reality it is considerably less than comprehensive and appears to have been minimally effective.
An example of this can be seen in the history of Mr. Posey. Mr. Posey went through the company’s training program
training when he was first hired. Company records reflect that he missed seven of the questions on the checklist test but, nonetheless, was still hired since performance on the test is not used to disqualify prospective employees. He supposedly was thereafter given supplemental on the job training under an experienced cashier at his employment location.
Kevin Sosa has been employed as a full time liquor store clerk at Store 619-620 for more than two years. He identified a decal which, for some time, including in August 1996, was stuck to the check-out counter just in front of the register. Sosa also claimed that there is, in addition, a decal on the beer cooler located in the back of the store, in the back hallway and on the wall near the register which refer in some way to the legal age for purchasing alcohol. With regard to these signs, Special Agent Hamilton, who participated in the operation involving Mr. Davison on August 13, 1996, did not observe any signs in the store as were described by Mr. Sosa even he claims he looked for them. However, he admitted he did not go behind the counter to where the cashier stood to see if any signs were posted there, nor did he specifically look near the beer cooler.
Mr. Sosa also has seen the alcohol compliance guidelines which he has been required to sign at least two or three times during the term of his employment and which he has seen more frequently when training others. He has also been exposed several times to the training guidelines which accompany the
alcohol video. The last time he saw it was during the summer of 1996 after the incidents in question, but on each occasion nothing more was done than to show the video.
After Mr. Posey was caught and after another incident at another company store, but before the incident involving Mr. Davison took place, he and Davison often discussed how easy it was to become complaisant and not check identification properly. Both recognized they had to be careful. They were frustrated and somewhat angry with the Division over these arrests because they felt anyone could make a mistake and fail to check identification.
The efforts at control and procedures described as being in place at Respondent’s stores were reiterated in the testimony of Mr. Stickles, second assistant manager at Respondent’s store in issue, who indicated that numerous and repeated efforts are made to train employees in the proper compliance with the alcohol laws and to get out appropriate and necessary information. Included within these measures used are the use of the company’s DBX system by which individual managers can electronically communicate with headquarters and other managers to identify problems and suggested solutions; memoranda on pertinent topics sent through the mail; consistent verbal reminders from management to clerks; provision of extra stickers for registers and elsewhere in the stores; reminders on employee paychecks and, after the first incident, a mandatory repeat
viewing of the alcohol control video by all employees. Aside from the above, however, Mr. Stickles could point to little in the way of formal training.
Mr. Odorisio, the store manager at the facility in question related his practice of insuring that all new employees are sent to the centralized orientation program conducted by the company. He attends periodic manager meeting at least three times a year after which he briefs his clerks on any relevant material he picked up. After the incident involving Mr. Posey he again briefed the remaining clerks, including Davison and Sosa, repeatedly advising them that the Division agents would be back and to be sure to card all suspicious customers
Mr. Montoto, Respondent’s district manager over the store in question, indicated his efforts to insure proper alcohol compliance included, in addition to those previously noted, a requirement that all employees have attended the pre-hiring orientation program; conduct of store manager meetings at least two or three times a year; and specific posting of managers in the stores who were trained in how to handle alcohol compliance.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Section 562.11, Florida Statutes, makes it unlawful for any person to sell alcoholic beverages to a person under the age of
21 years. Consistent therewith, Section 561.29, Florida Statutes, give to the Division of Alcoholic Beverages and Tobacco the authority to suspend or revoke an alcoholic beverage license if the licensee or its agents, officers, servants or employees, have violated state law regarding the sale of alcoholic beverages.
Recognizing the practical limitations on such authority, the legislature, at Section 561.706(1), Florida Statutes, provided that:
The license of a vendor qualified 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 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.
The courts have clearly indicated that a liquor licensee is not an insurer against violations of the law committed on its premises by or through its employees. Woodberry v. State beverage Department, 219 So.2d 47, 48 (Fla. 1st DCA 1969). However, when it is seen that the misconduct of a licensee’s employees is continuing and persistent, the inference may be drawn that the licensee either fostered, condoned or negligently overlooked that misconduct. Pic N’ Save v. Division of Alcoholic Beverages and Tobacco, 601 So.2d 245, 251-252 (Fla. 1st DCA 1992). In that regard, the First District Court of
Appeal, in Charlotte County Lodge v. Department of Business Regulation, 463 So.2d 1208, 1212 (Fla. 1st DCA 1985), held:
In those instances where courts have sanctioned revocation by the DBR because of simple negligence on a licensee’s part for failing to exercise due care in the supervision of agents or employees
who engage in unlawful activity on the licensee’s premises, the courts have found repeated and flagrant violations by employees which allow
an inference that said violation had been fostered, condoned, or negligently overlooked by the licensee.
Petitioner has the burden of proof to establish by clear and convincing evidence that the violations by the Respondent’s employees resulted from Respondent’s intentional wrongdoing, negligence or lack of diligence in supervising its employees. Id.
The Division makes reference to the Responsible Vendor Act set out in Section 561.705, Florida Statutes which provides that to qualify as a responsible vendor, the vendor must:
Provide a course of instruction for its employees that must include subjects dealing with alcoholic beverages and may also include subjects dealing with controlled substances as follows:
Laws covering the service of alcoholic beverages and the operation of establishments serving alcoholic beverages.
Alcohol or controlled substances or both as a drug and its effects on the body and behavior, including its effects on a person operating a motor vehicle.
Effects of alcohol in combination with commonly used drugs, both legal and illegal.
Methods of recognizing and dealing with underaged customers.
Methods for dealing with customers, and for dealing with employees, who use or traffic in illegal drugs.
Provide an alcohol server management course for managers of establishments that sell alcoholic beverages. The course must include subjects on ` alcoholic beverages and may include subjects on controlled substances as follows:
Laws governing the service of alcoholic beverages and the operation of establishments serving alcoholic beverages.
Developments of standard operating procedures for dealing with underaged customers.
Development of standard operating procedures for dealing with customers, and for dealing with employees who use or traffic in illegal drugs.
Methods of assisting employees in dealing with underaged customers and in maintaining records that relate to such incidents.
Require each non-managerial employee who is employed to serve alcoholic beverages to complete the employee training course specified in subsection (1) within 30 days after commencing employment. The vendor must provide for the supervision of such an employee
in the service of alcoholic beverages until the employee has received such training.
Require each managerial employee to complete the managerial training course specified in subsection (2) within 15 days after commencing employment.
Require all employees to attend meetings at least tri-annually. These meetings must include the dissemination of information covering the applicable subjects specified in this section and an explanation of the vendor’s policies and procedures relating to those subjects.
(9) Post signs on the vendor’s premises informing customers of the vendor’s policy against serving alcoholic beverages to underaged persons and informing customers that the purchase of alcoholic beverages
by an underaged person or the illegal use of or trafficking in controlled substances will result in ejection from the premises and prosecution.
Petitioner asserts that Respondent failed to comply with the standard of diligence set forth in the Responsible Vendor Act in that it did not provide a course of instruction to
its employees which treated the effects of alcohol on the body and its behavior; the effects of alcohol in combination with commonly used drugs; the methods of recognizing and dealing with underaged customers; the methods for dealing with customers and employees who use or traffic in illegal drugs and that it did not require tri-annual meetings by all employees on responsible vendor subjects, policies and procedures.
Evaluation of the evidence presented clearly indicates that Respondent did not offer a course of instruction dealing with the effects of alcohol on the body and its behavior or the effects of alcohol in combination with commonly used drugs, nor did it particularly deal with methods for dealing with customers or employees who use or traffic in illegal drugs. The evidence of record does, however, establish that Respondent’s pre-hiring training program, and the emphasis placed after the first of the incidents in issue, treated to some degree the identification of underaged customers, dealing with underaged customers and, at least for managers, required periodic, tri-annual meetings to discuss its policies and procedures for the control of the sale of alcoholic beverages. While, to be sure, the Respondent’s actions do not fully meet the requirements of the Responsible Vendor Act, there is evidence of at least a cursory attempt on the part of Respondent to prevent unlawful sales of alcohol, and those areas wherein there appears to be no Respondent activity do
not seem to be pertinent to the retail package sale of alcohol, but more to the sale of alcohol for consumption on the premises.
As for the other actions taken by the Respondent, it is clear that save for the initial pre-employment orientation, there were no employee meetings held wherein company policies regarding the sale of alcohol to minors or methods of preventing it were discussed. There was some evidence that periodically compliance guidelines were sent out to the field, and employees were required to sign them certifying that they had seen the video dealing with alcohol management and were aware that violation of company policy could result in dismissal. There is some evidence that after the initial arrest in issue here, and even somewhat before, some effort was made to advise liquor store employees that the Division agents would be back and they should be on their toes to guard against unlawful sales. However, there is no evidence of any concerted, organized, effective educational and training program designed to alert employees to the need for constant vigilance regarding the sale of alcohol to minors and providing additional instruction as to how to identify underaged customers. At best there was an unformulated description of what type of identification should be requested and some undefined effort to place signs or buttons in the store to alert customers and clerks as to who was a lawful purchaser of alcoholic beverages.
Respondent argues that the evidence does not clearly and convincingly establish that Respondent’s employees’ violations were the result of their not fully being trained in their duties and responsibilities regarding sales of alcohol to minors, but from the evidence it is impossible to conclude anything else. Prior to August 1996, Respondent’s demonstrated educational efforts with regard to preventing the sale of alcohol to minors were less than minimal, consisting of an orientation program in which an applicant’s inability to successfully assimilate the limited material presented did not prevent his or her employment, and a sporadic, post hiring periodic dissemination of less than hard-hitting reminders not to sell to underage customers. This does not meet the requirements for an acceptable training program that would excuse Respondent from culpability for the misfeasance and malfeasance of its employees.
Rule 61A-2.022, Florida Administrative Code outlines the Division’s guidelines for penalties for a violation of the statute, as here. The authorized penalty for the sale of alcoholic beverages to persons under the age of 21 years, as established herein, is a civil penalty of $1,000 and a suspension of the license for seven days, per violation. In light of the evident fact that the violations here were entirely those of negligence and lack of diligence rather than intent, a suspension does not appear appropriate, and a civil fine is appropriate.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order imposing an administrative fine of $3,000 against Respondent’s alcoholic beverage license number 39-01099, series 3-PS.
DONE and ENTERED this 4th day of March, 1997, in Tallahassee, Florida.
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6947
Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997.
Miguel Oxamendi, Esquire Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-1007
Craig E. Behrenfeld. Esquire Barnett, Bolt, Kirk & long
601 Bayshore Boulevard, Suite 700
Tampa, Florida 33606
Lynda L. Goodgame General Counsel
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-1007
Richard Boyd Director
Division of Alcoholic Beverages and Tobacco
1940 North Monroe Street Tallahassee, Florida 32399-1007
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Feb. 04, 1999 | Final Order rec`d |
| Mar. 04, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held 12/18/96. |
| Jan. 21, 1997 | Respondent`s Notice of Filing Post-Hearing Memorandum; Respondent`s Post-Hearing Memorandum; Respondent`s Notice of Filing Proposed Recommended Order; Proposed Recommended Order filed. |
| Jan. 17, 1997 | Petitioner`s Proposed Recommended Order filed. |
| Jan. 13, 1997 | Respondent`s Notice of Filing Transcript of Proceedings December 18, 1996; cc: Transcript of Proceedings ; cc: the Continuation by Deposition of: filed. |
| Jan. 10, 1997 | Respondent`s Notice of Filing Transcript of Proceedings December 18, 1996; cc: Transcript of Proceedings filed. |
| Jan. 09, 1997 | Transcript of Proceedings filed. |
| Jan. 09, 1997 | The Continuation by Deposition of: (No name given in title) filed. |
| Jan. 02, 1997 | (Respondent) Notice of Taking Depositions filed. |
| Dec. 23, 1996 | Order Authorizing Deposition Testimony sent out. (depositions of remaining witnesses shall be taken and depositions filed with Judge by 1/10/97) |
| Dec. 18, 1996 | CASE STATUS DOCKETED: Hearing Partially Held, continued to date not certain. |
| Nov. 18, 1996 | Notice of Hearing sent out. (hearing set for 12/18/96; 1:00pm; Tampa) |
| Nov. 01, 1996 | (Petitioner) Response to Initial Order filed. |
| Oct. 24, 1996 | Initial Order issued. |
| Oct. 17, 1996 | Agency referral letter; Request for Hearing; Administrative Action; Request for Continuance/Request for Formal Hearing, letter Form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 05, 1997 | Agency Final Order | |
| Oct. 31, 1997 | Agency Final Order | |
| Mar. 04, 1997 | Recommended Order | Licensee's orientation and employee training was not sufficient to excuse it from responsibility under Florida liquor law for employee misconduct. |
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. RALPH W. WHITE, D/B/A POSSUM TROT, 96-004934 (1996)
THOMAS W. SOLOMON, D/B/A TRAMPS vs. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, 96-004934 (1996)
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. JAMES R. ROGERS, T/A RAY`S TAVERN, 96-004934 (1996)
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. SAUNDRA MORENE, T/A AGEL GROCERY, 96-004934 (1996)
