STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 97-3858

)

MEHREEN ENTERPRISES, INC., ) d/b/a SUPER STOP FOOD STORE #2, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on December 3, 1997, in Miami, Florida.

APPEARANCES

For Petitioner: Thomas D. Winokur, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Irwin G. Lichter, Esquire

321 Northeast 26th Street Miami, Florida 33137

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 18, 1997, Petitioner issued a one-count Administrative Action whereby it alleged that Respondent, the holder of an alcoholic beverage license, violated the provisions of Section 562.11(1)(a), Florida Statutes, and, therefore, Section 561.29(1), Florida Statutes, when, through its agent, servant, or employee Syed Abdul Qadir, it did "sell, serve or give an alcoholic beverage, to wit: [one] . . . 32 oz. Bottle of Red Dog beer, on your licensed premises to a person under the age of 21, to wit: Richard Stangl d/o/b 12/07/76."

Respondent filed a request for hearing which disputed the material facts alleged in the Administrative Action, and the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

At hearing, Petitioner called Kenyon Watkins and

Richard Stangl, as witnesses. Respondent called Syed Abdul Qadir and Ron Ohana, as witnesses, and its Exhibits 1 and 2 were received into evidence.

The transcript of the hearing was not ordered. Therefore, it was announced on the record that the parties were accorded ten days from the date of hearing to file proposed recommended orders or memoranda. The parties elected to file such a proposal or memorandum, and they have been duly considered.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Mehreen Enterprises, Inc., held license number 23-21339, Series 2APS, authorizing it to sell alcoholic beverages on the premises of a business known as Super Stop Food Store #2, located at

   9260 Hammocks Boulevard, Miami, Dade County, Florida (hereinafter "the licensed premises"). Syed Abdul Qadir (Qadir) was, and is, a shareholder of the Respondent corporation, and the manager of the licenses premises.1

2. On March 1, 1997, at or about 8:00 p.m., Richard Stangl (Richard), date of birth December 7, 1976, and 20 years of age at the time, entered the licensed premises, retrieved a 32 ounce bottle of Red Dog beer from a vertical cooler, and proceeded to the counter where he paid Qadir for the beer and left the premises. At the time, Qadir did not request to see any identification as proof of legal age, nor did he ask Richard his age.

3. As Richard drove away from the store he was intercepted by the police, who were engaged in an investigation of the premises. Confirming Richard's age and the possession of an alcoholic beverage,2 Richard was returned to the licensed premises where he and Qadir were placed under arrest.3

4. Respondent does not dispute that the foregoing events occurred. Rather, it contends that it took reasonable precautions to avoid serving an underaged person and should not,

   therefore, be penalized for the subject sale. Given the proof, Respondent's contention has merit.

5. While Richard was less than 21 years of age at the time, the proof demonstrated that his appearance was such that an ordinary prudent person would believe he was of legal age to purchase alcoholic beverages.4 The proof further demonstrates that Richard frequented the licensed premises on a regular basis over a three month period, and that he routinely purchased (approximately 30 times) alcoholic beverages during that period. Initially Qadir inquired as to his age, which Richard stated to be 21, and requested identification, which Richard presented in the form of a driver's license consistent with that age. Qadir continued to request identification for a time but, as Richard appeared regularly at the store, and began to complain, he ceased requesting identification. Given the repeated assurances by word and identification card that Qadir had received regarding Richard's apparent age, Qadir's failure to continue to request identification was not unreasonable.5

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes (Supp. 1996).

7. Where, as here, the agency proposes to take punitive action against a licensee, it must establish the grounds for

   disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (Supp. 1996), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

8. Pertinent to this case, Section 561.29(1), Florida Statutes, provides that the Division of Alcoholic Beverages and Tobacco is given full power and authority to revoke or suspend a beverage license under the Beverage Law when it is determined that, inter alia, the licensee or his or its agents, officers, servants, or employees, on the licensed premises or elsewhere in the scope of employment violated any of the laws of this state or of the United States.

9. Section 562.11, Florida Statutes, proscribes the following conduct:

   (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. Anyone convicted of violation of the provisions hereof is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or

   s. 775.083.

10. Rule 61A-3.052, Florida Administrative Code, provides a defense for a violation of subsection 562.11(1)(a) under the following circumstances:

    1. A licensee who has been cited in an administrative action for violations of sections 562.11(1)(a) . . . Florida Statutes, shall have a defense to any administrative action is the underage person falsely evidenced that he was of legal age to purchase the alcoholic beverage . . . or consume the alcoholic beverage product and the appearance of the person was such that an ordinarily prudent person would believe the person is of legal age to purchase or consume those products, and if the licensee attempted to verify the person's age by checking one of the following forms of identification with respect to the person:

       1. A driver's license, issued by any

          government agency, domestic or foreign, provided it includes a photograph;

       2. Identification cards issued by any state, provided it includes a photograph;

       3. Passports;

       4. An identification card issued by any branch of the United States military which shows the customer is currently serving in the United States Armed Services or is a family member of a person currently serving in the United States Armed Services.

       
       

       * * *

       
       

       (3) No other type of identification will be recognized as mitigation if a licensee or a licensee's employee sells, gives, or serves alcoholic beverages . . . to an underage person.

       
       

11. Here, the facts demonstrated with the requisite degree of certainty that Respondent, through its agent Qadir, violated the provisions of subsection 562.11(1)(a) by selling an alcoholic beverage to a person under the age of 21 years. However, the

proof likewise demonstrated that, more likely than not, the underaged person had, on numerous occasions in the past, falsely evidenced that he was of legal age to purchase alcoholic beverages, that his appearance was such that an ordinarily prudent person would believe him of legal age to purchase such products, and that Qadir had on numerous occasions in the past, although not the occasion at issue, attempted to verify his age by checking a driver's license tendered by the underaged person for such purposes. Given the circumstances, Respondent's agent took reasonable steps to avoid the sale of alcoholic beverages to an underaged person and, therefore, Respondent has established its entitlement to the defense provided by Rule 61A-3.052(1), Florida Administrative Code.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered dismissing the Administrative Action.

DONE AND ENTERED this 18th day of December, 1997, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1997.

ENDNOTES

1/ Syed Abdul Qadir, together with his wife, are the owners of the business.

2/ Section 562.47(2), Florida Statutes.

3/ As for the disposition of the cases, the proof does not demonstrate the disposition of Qadir's case and, as to Richard's case, the proof only shows that adjudication was withheld.

4/ As of the date of hearing, Richard was still 4 days shy of his 21st birthday, but his appearance was consistent with that of an older person. Moreover, while clean shaven at the hearing, Richard, more likely than not, was bearded at the time in question, and would have appeared even older. Notably, Richard suffers a rapid and heavy growth of facial hair such that after only two or three days he has a noticeable beard. Richard prefers not to shave because of a resulting skin irritation.

5/ Here, the proof is conflicting as to whether Qadir ever inquired of Richard's age or requested identification. According to Richard, Qadir did not ask his age or ask for identification when he purchased alcoholic beverages. Richard further testified that he never used a false identification card. Contrasted with his testimony, Qadir averred that he did inquire, was assured that Richard was over 21 years of age, and was shown a driver's license by Richard consistent with that age. Considering the proof, Qadir's testimony has been credited and that of Richard rejected as less than persuasive. In rejecting Richard's testimony as less than candid, it is observed that on direct examination, after averring he never used false identification, Richard was asked what he did when asked for his identification. Richard responded that, on those occasions, he would simply tell the clerk (someone other than Qadir) that he did not have it with him, that he would be right back, and then he would leave the store. On cross- examination, Richard reaffirmed that he never used false identification but inexplicably responded to questioning regarding the purchase of alcohol when he was less than 21 years of age, that he did not know one had to be 21 years of age to buy beer.

Given that Richard is native born, is a resident of Florida since

1983, is fluent in the English language, and has been drinking alcoholic beverages since the age of 18, his testimony that he was unaware of the legal age to consume alcoholic beverages in

Florida, is inherently improbable and unworthy of belief. Such testimony is also inconsistent with the import of his direct testimony, which implicitly recognized his legal incapacity to purchase alcohol absent identification demonstrating the legal age.

COPIES FURNISHED:

Thomas D. Winokur, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Irwin G. Lichter, Esquire

321 Northeast 26th Street Miami, Florida 33137

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 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: 97-003858

Orders for Case No: 97-003858