STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 97-4719

)

CERVERA BLANCO CURINTON )

d/b/a MY SUPER STORE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in Daytona Beach, Florida, on February 19, 1998, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas D. Winokur, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Joan Lowe, Esquire

520 North Ridgewood Avenue

Daytona Beach, Florida 32144-2188 STATEMENT OF THE ISSUE

The issue presented in whether an agent or employee of Respondent sold alcoholic beverages to a person under the age of 21, in violation of Section 562.11(1)(a), Florida Statutes, as

alleged in the Administration Action issued September 10, 1997, and if so, what penalty is appropriate.

PRELIMINARY STATEMENT

This cause came on for hearing pursuant to an Administrative Action alleging one count of illegally trafficking in U.S.D.A. food coupons based on three separate occurrences and one count of sale of alcoholic beverages to a person under the age of 21, based on three separate offenses. At the outset of the hearing, the Division indicated that it would not proceed with the count involving food coupons, due to witness unavailability.

At hearing the Division presented the testimony of Daytona Beach Police Department Detective Richard Blaine, Paris Anthony, and Division Special Agent Betty Adazzio. Petitioner introduced into evidence a Stipulation of Fact signed by Petitioner and Respondent. Official recognition was taken of Rule 61A-2.022, Florida Administrative Code.

Respondent Cervera Curinton testified on his own behalf and presented the testimony of Benette Lisa Brown.

Both parties submitted proposed findings which were read and considered.

FINDINGS OF FACT

1. At all times relevant and material to this proceeding, Respondent held alcoholic beverage license no. 74-01498, series 2APS, for an establishment known as My Super Store ("the licensed

   premises"), located at 701 South Martin Luther King Boulevard, Daytona Beach, Volusia County, Florida.

2. Daytona Beach Police Department opened an investigation of the licensed premises after it received numerous complaints of illegal activity at the licensed premises.

3. Paris Anthony is a black female born on June 13, 1977, and was 19 years old on May 5 through May 21, 1997.

4. On May 5, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The bottle bore the manufacturer's trade mark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the cashier. The cashier accepted payment for the beer, but did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her.

5. When Ms. Anthony asked for a receipt for the beer, the cashier, in a raised voice, commented to Ms. Anthony, "Well, you're not old enough, are you?" or words to that effect.

   Ms. Anthony answered that she was not, but was nonetheless permitted to leave the premises with the bottle of beer.

6. During the conversation between the cashier and

   
   

   Ms. Anthony, Respondent was seated an arm's length away from the cashier. Respondent was not talking to anyone at the time.

   Although Respondent looked up at Ms. Anthony and the cashier during the exchange reported in paragraph 5, above, he took no

   action in response to the assertion that Ms. Anthony was not of legal age to purchase alcoholic beverages.

7. On May 7, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The beer bore the manufacturer's trademark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the same cashier who was working behind the counter on May 5, 1997. The cashier did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her. Ms. Anthony departed the licensed premises with the bottle of beer. The Respondent was observed on the premises by Ms. Anthony at the time of the purchase.

8. On May 21, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The beer bore the manufacturer's trademark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the same cashier who was working behind the counter on May 5 and May 7, 1997. The cashier did not ask

   Ms. Anthony for any identification before accepting payment and selling the beer to her. Ms. Anthony departed the licensed premises with the bottle beer. The Respondent was observed on the premises by Ms. Anthony at the time of the purchase.

9. At hearing, nine months after the incident, Ms. Anthony appeared to be a young woman of an age that a prudent person would check to determine whether she was 21 years old.

10. Respondent testified he had no employees at the time of the violations, but allowed "volunteers" to help him on the licensed premises, including Benette Lisa Brown. According to the Respondent, he was always on site, and in charge. The "volunteers," according to Respondent, did not work the cash register; however, Respondent's testimony was not consistent with Ms. Anthony's and that of a former "volunteer." Respondent's testimony was not credible. The person at the sales counter was working under the supervision of Respondent who was present on the premises each occasion Ms. Anthony purchased beer.

11. At the time of the violations, Respondent did not have signs posted on the licensed premises informing customers that the vendor had a policy against serving alcoholic beverages to underage persons and informing customers that the purchase of alcoholic beverages by an underage person or the illegal use of or trafficking in controlled substances will result in ejection from the licensed premises and prosecution.

12. The training of employees or agents was inadequate and their supervision poor.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.

14. Section 562.11(1), Florida Statutes (1997), provides:

    
    

    1. 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.

       
       

    2. A licensee who violates paragraph (a) shall have a complete defense to any civil action therefor, except for any administrative action by the division under the Beverage Law, if, at the time the alcoholic beverage was sold, given, served, or permitted to be served, the person falsely evidenced that he was of legal age to purchase or consume the alcoholic beverage and the appearance of the person was such that an ordinarily prudent person would believe him to be of legal age to purchase or consume the alcoholic beverage and if the licensee carefully checked one of the following forms of identification with respect to the person: a driver's license, an [identification card], a passport, or a United States Uniformed Services identification card, and acted in good faith and reliance upon the person's representation and appearance o the person in the belief that he was of legal age . . . .

15. Although Section 562.11(1)(b), Florida Statutes, by its terms does not apply to administrative actions brought by the Division, the Division has adopted a rule providing a defense to licensees in administrative proceedings that is substantially identical to that provided in the statute. See Rule 61A- 3.052(1), Florida Administrative Code. In short, a licensee who has been cited in an administrative action for a violation of

    Section 562.11(1)(a), Florida Statutes, has a defense if the person purchasing alcohol uses a false identification, appears such that an ordinarily prudent person would believe him to be of legal age, and the licensee attempted to verify the person's age by checking legal identification. There was no evidence that

    Ms. Anthony's age was checked by the Respondent or the clerk at the counter, and Ms. Anthony did not use false identification. The provisions of Section 561.11(a), Florida Statutes, are not in the disjunctive.

16. Section 561.29(1), Florida Statutes, reads in pertinent part:

    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 her or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, or any of the laws of this state or of the United States, . . . or permitting another on the licensed premises violate any of the laws of this state or of the United States. . . .

17. The persons identified by Ms. Anthony as the cashier was an agent, servant or employee of the Respondent on the licensed premises and the Respondent was culpable for her actions.

18. Under the provisions of Section 562.47, Florida Statutes, proof that a beverage container which bears the

    manufacturer's insignia, name, or trademark, and is labeled "beer" is prima facie evidence that said beverage is an alcoholic beverage.

19. In order to find the Respondent culpable of violating the beverage law, there must be a finding that the nature and number of illegal transactions and the fact that they occurred in a persistent and practiced manner, permits "a factual inference leading to the conclusion that such violations of law were either fostered, condoned or negligently overlooked by the licensee, notwithstanding the Respondent's presence at the premises." Pauline v. Lee, 147 So. 2d 359 (Fla. 2nd DCA 1962).

20. Rule 61A-2.022, Florida Administrative Code, sets out the Division's penalty guidelines. Subsection (1) of this rule reads in Part:

    The penalties provided below are based upon a single violation which the licensee committee or knew about; or a pattern of at least three violations within a 12-week period by employees, independent contractors, agents, or patrons on the licensed premises or in the scope of employment in which the licensee did not participate; or violations which were occurring in an open and notorious manner on the licensed premises.

21. The Division generally requires three violations in a 12-week period by agents of the licensee to demonstrate the inference that the violations in were fostered, condoned, or negligently overlooked by the licensee, before it will proceed against the licensee.

22. This inference may be overcome by evidence that the

    licensee has complied with the Florida Resoponsible Vendor Act, Sections 561.701 through 561.706, Florida Statutes. Section 561.706, Florida Statutes, states in part:

    1. 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 r service of an alcoholic beverage to a person who is not of lawful drinking age or for an employee's engaging in or permitting others to engage in the illegal sale, use of, or trafficking in controlled substances, 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. No vendor may

       use as a defense to suspension or revocation

       the fact that she or he was absent from the licensed premises at the time a violation of the Beverage Law occurred if the violations are flagrant, persistent, repeated, or recurring.

       
       

    2. The division shall consider qualification as a responsible vendor in mitigation of administrative penalties for an employee's illegal sale or service of an alcoholic beverage to a person who is not of lawful drinking age and if the vendor has administered the applicable courses for controlled substances, for an employee's engaging in the illegal sale, use of, or trafficking in controlled substances.

23. Respondent admitted at the hearing that the training for persons working at the cash register was minimal, and the evidence showed that Respondent did not meet the signage requirements in Section 561.706(9), Florida Statutes. The Responsible Vendor Act protects the licensee from discipline for

    illegal act committed by its agents "unless the vendor had knowledge of the violation." Section 561.705(1), Florida Statutes. The evidence showed the Respondent was present on the premises within arm's reach of the first transaction and knew or should have known of the violation.

24. Respondent's direct knowledge of at least one of the violations precludes the consideration of any mitigating factors. Further, the record shows three violations within 12 weeks. Rule 61A-2.022(1), Florida Administrative Code.

25. Respondent's claim that he had never seen Ms. Anthony in his store and that he can identify every customer who had been in his store, even those who came in nine months earlier, is not credible. Nor is his claim credible that he is the only person who ever works at the cash register.

26. The facts evidenced at the formal hearing demonstrated by clear and convincing evidence that an under age person purchased an alcoholic beverage without being asked for or showing identification by Respondent's agent contrary to Section 562.11(1)(a), Florida Statutes, on three occasions within a 12- week period, once with Respondent's presumed knowledge. Respondent is not entitled to the statutory defense to this charge.

27. The Division's standard penalty, contained in Rule 61A- 2.022, Florida Administrative Code, for the violation alleged in the Administrative Action is a seven-day suspension of

Respondent's alcoholic beverage license and a civil penalty of one thousand dollars ($1,000.00). Respondent has not offered mitigation sufficient to reduce this penalty. The aggravating factors are the absence of employee and "volunteer" training, and the pattern evidenced in the three undercover purchases by Ms.

Anthony.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That Respondent's alcoholic beverage licensee No. 74-01498, series 2APS, be suspended for a period of 30 days, and it is further recommended that Respondent be ordered to pay a $1,000 civil penalty to the Petitioner.

DONE AND ENTERED this 25th day of March, 1998, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 25th day of March, 1998.

COPIES FURNISHED:

Thomas D. Winokur, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Joan Lowe, Esquire

520 North Ridgewood Avenue

Daytona Beach, Florida 32114-2188

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-1007

Lynda L. Goodgame, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

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: 97-004719

Orders for Case No: 97-004719