STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 97-1692

) EL-BIREH, INC. d/b/a SAM’S BIG ) APPLE #2, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Administrative Law Judge, William R. Cave, held a formal hearing in the above-captioned case on July 25, 1997, in Lakeland, Florida.

APPEARANCES

For Petitioner: James D. Martin, Esquire

Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Brandon J. Rafool, Esquire

1519 Third Street, Southeast Winter Haven, Florida 33880

STATEMENT OF THE ISSUES

Should Respondent’s license to sell alcoholic beverages be revoked, suspended, or otherwise disciplined?

PRELIMINARY STATEMENT

By an Administrative Action dated January 21, 1997, and filed with the Division of Administrative Hearings (Division) on April 3, 1997, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Department) alleges that Respondent sold an alcoholic beverage on Respondent’s licensed premises to a person under the age of 21 years, contrary to Section 562.11(1)(a), within Section 561.29(1)(a), Florida Statutes. Respondent denied the allegations and requested a formal hearing. By letter dated April 1, 1997, this matter was referred to the Division for the assignment of an Administrative Law Judge and for the conduct of a hearing.

At the hearing, the Department presented the testimony of Linda Greenlee and Gabriel Shuler. The Department’s Exhibit 1 was received as evidence. Respondent presented the testimony of Zahieh Awad Awadallah and Rasem Awadallah. Respondent did not offer any documentary evidence.

There was no transcript of this proceeding filed with the Division. The parties timely filed their proposed recommended orders with the Division.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times pertinent to this proceeding, Respondent El-Bireh, Inc., held license number 63-02202, ZAPS, authorizing Respondent to sell alcoholic beverages on the premises of Sam’s Big Apple Number 2, located at 110 Manor Drive, Bartow, Polk County, Florida.

2. Zahieh Awad Awadallah is the sole corporate officer and sole shareholder of El-Bireh, Inc.

3. On January 18, 1997, as a result of a complaint from the City of Bartow, the Department initiated an investigation of Respondent’s premises located at 110 Manor Drive, Bartow, Polk County, Florida, for the sale of alcoholic beverages to persons under 21 years of age.

4. On January 18, 1997, Special Agent Greenlee, along with another Department Special Agent, and Gabriel Shuler, went to Respondent’s licensed premises to investigate the sale of alcoholic beverages to persons under 21 years of age.

5. Gabriel Shuler was born on January 7, 1978, and on January 18, 1997, was 19 years of age. At times pertinent to this proceeding, Shuler was 6 feet 6 inches tall and weighed 270 pounds. Shuler had a valid State of Florida driver’s license in his possession on January 18, 1997. The driver’s license carried Shuler’s correct age, height, and weight.

6. The Department’s special agents present at Respondent’s licensed premises on January 18, 1997, instructed Shuler to enter the premises and attempt to purchase an alcoholic beverage. Shuler was also instructed to produce his driver’s license for

   identification, if requested, and not to attempt to deceive the clerk as to his correct age.

7. Shuler entered the licensed premises and selected a 16-ounce can of “Budweiser” beer from the cooler inside the

   premises. Shuler purchased this 16 ounce can of “Budweiser” beer from a person later identified as Zahieh Awad Awadallah, the sole shareholder of Respondent. Sahieh Awad Awadallah did not ask Shuler for any identification or ask Shuler if he was 21 years of age.

8. The 16 ounce of “Budweiser” beer purchased by Shuler from Respondent was in a container labeled “beer” and contained “beer,” an alcoholic beverage. The Respondent has not denied that Shuler purchased the beer.

9. Special Agent Greenlee entered the licensed premises after Shuler and witnessed the sale of the beer to Shuler by Respondent.

10. After purchasing this beer, Shuler exited the premises. Upon Shuler’s exiting the premises, the Department’s Special Agent took custody of the beer.

11. Respondent was subsequently advised of the violations by Special Agent Greenlee and was issued a Notice to Appear by Special Agent Greenlee.

12. There is sufficient evidence to show that Sahieh Awad Awadallah, the sole shareholder of El-Bireh, Inc., d/b/a Sam’s Big Apple Number 2, sold a 16-ounce can of “Budweiser” beer, an alcoholic beverage, to Gabriel Shuler, a person under the age of

    21 years, without asking Shuler his age or requesting Shuler to produce identification showing his age to be 21 years.

13. There are no mitigating circumstances which would support a reduction of the standard penalty imposed for the violation alleged in the Administrative Action.

    CONCLUSIONS OF LAW

    
    

14. The Division has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

15. Section 562.11(1)(a), Florida Statutes, in pertinent part provides:

    (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. . . .

    
    

16. Section 562.47(2), Florida Statutes, provides as follows:

    562.47 Rules of evidence; Beverage Law. In all prosecutions for violations of the Beverage Law.

    
    

    * * *

    
    

    (2) Proof that the beverage in question was contained in a container labeled as “beer,” “ale,” “malt liquor,” “malt beverage,” “wine,” or “distilled spirits” or with other similar name; and which bears the manufacturer’s insignia, name. or trademark is prima facie evidence that such beverage is an alcoholic beverage as defined in s. 561.01.

    
    

17. Section 561.29(1), Florida Statutes, in pertinent part

    provides:

    
    

    1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:

       
       

       1. Violation by the licensee or his or its agents, officials, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States. . . .

    
    

    
    

18. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (1st DCA Fla. 1977). The Department must prove the material allegation of the Administrative Action by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection vs. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987). The Department has shown by clear and convincing evidence that Respondent did on January 18, 1997, sell a 16-ounce can of beer, an alcoholic beverage, to Gabriel Shuler, a person under the age of 21 years in violation of Section 562.11(1)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a

final order be entered finding Respondent guilty of violating Section 562.11(1)(a), Florida Statutes, and for this violation that the Department issue an administrative fine in the amount of

$1,000 against Respondent and that Respondent’s alcoholic beverage license number 63-02202, ZAPS, be suspended for a period of 7 days.

DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 13th day of August, 1997.

COPIES FURNISHED:

James D. Martin, Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Brandon Rafool, Esquire Post Office Box 7286

Winter Haven, Florida 33883

Lynda L. Goodgame General Counsel Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 97-001692

Orders for Case No: 97-001692