STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

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

)

Petitioner, )

)

vs. ) Case No. 97-5832

) ROSE ANNE, INC., d/b/a SCOOTERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on July 16, 1998, a formal hearing was held in this case at City Hall, 301 South Ridgewood Avenue, Daytona Beach, Florida. Authority for conducting the hearing is set forth in Sections 120.569(1) and 120.57(1), Florida Statutes. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Susan C. Felker-Little, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Scott A. Price, President

Rose Anne, Inc., d/b/a Scooters 102½ West Rich Avenue

Deland, Florida 32720 STATEMENT OF THE ISSUE

Should Petitioner discipline Respondent's Alcoholic Beverage License based upon Respondent's president selling, serving or

giving an alcoholic beverage, on the licensed premises, to a person under the age of twenty-one contrary, to Section 562.11(1)(a), Florida Statutes?

PRELIMINARY STATEMENT

Petitioner brought an administrative action in Case No.

AY-74-970380, charging the violation referred to above. This administrative action was served on the Respondent on

November 12, 1997. On November 21, 1997, Petitioner received Respondent's Statement of Election to contest the facts that underlie the administrative action. On December 9, 1997, the case was forwarded to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct a formal hearing to resolve the factual disputes between the parties.

Originally the case was assigned to Larry J. Sartin, Administrative Law Judge. The case was re-assigned for purposes of the hearing to Charles C. Adams, Administrative Law Judge.

At hearing Petitioner presented the testimony of Special Agent Betty D. Adazzio, Special Agent Melissa Winford, and Ryan N. Luttrell. Petitioner's Exhibits 1 through 6 were

admitted. Respondent presented the testimony of Maria L. Price and Scott A. Price. Respondent's Exhibit 1 was admitted.

A hearing transcript has not been prepared. Nonetheless, the parties were granted the opportunity to submit proposed recommended orders. Those proposed recommended orders were to be filed by July 27, 1998. Petitioner met that deadline for filing

a proposed recommended order. The proposed recommended order has been considered. Respondent did not submit a proposed recommended order.

FINDINGS OF FACT

1. Respondent, Rose Anne, Inc., d/b/a Scooters, holds license number 74-05039 SRX, Series 4COP issued by Petitioner for the premises located at 217 North Woodland Boulevard, Deland, Florida. Scott A. Price is the president and owner of that business.

2. On October 22, 1997, Petitioner, through its agents, made random checks of businesses holding alcoholic beverage licenses issued by Petitioner. Those checks were made in Deland, Florida. In particular, the checks were designed to determine if businesses holding alcoholic beverage licenses were acting in compliance with the prohibition against selling, serving or giving alcoholic beverages on their licensed premises, to persons under the age of twenty-one, in violation of Section 562.11(1)(a), Florida Statutes. Respondent's premises was one of the licensed premises checked on that date.

3. Petitioner's employees involved in the random checks included Special Agents Betty D. Adazzio, Melissa Winford and Kristin Hunt, operating with the assistance of Sergeant Steve Dovi of the Deland Police Department. The law enforcement personnel were supported in their activities by Ryan N. Luttrell, an under-aged person, who was used to determine if persons within the licensed premises under consideration would sell, serve or give Mr. Luttrell an alcoholic beverage in the licensed premises.

4. Mr. Lutrell was born on November 23, 1978, as reflected on a Florida driver's license issued to him. That driver's license bore a picture of Mr. Luttrell which accurately depicted his appearance at the time. The license also indicated in bold print that Mr. Luttrell was under twenty-one years of age. In contact with Mr. Price, within Respondent's licensed premises, Mr. Luttrell used the license as a means of identification.

5. Mr. Luttrell entered the licensed premises on the date in question. At that moment Mr. Price was tending the bar in the premises. Mr. Price brought Mr. Luttrell a menu and asked

   Mr. Luttrell if he wanted anything to drink. Mr.Luttrell told Mr. Price to give Mr. Luttrell a minute to decide. Mr. Luttrell then asked Mr. Price for a Bud Lite, an alcoholic beverage which is a beer. Mr. Luttrell also ordered cheese sticks. Mr. Price asked Mr. Luttrell for identification.

   Mr. Luttrell then produced the driver's license that has been described. Mr. Price briefly looked at the driver's license.

   Then Mr. Price took the driver's license to another area within the premises and held the license up by a chart. Mr. Price came back to where Mr. Luttrell was seated and asked what Mr. Luttrell would like. Mr. Luttrell repeated that he wanted a Bud Lite.

   Mr. Price filled a glass with beer and brought it back to

   
   

   Mr. Luttrell's location placing the glass of beer and a napkin in front of Mr. Luttrell. Mr. Price remarked that the cheese sticks would be right out. Mr. Luttrell asked Mr. Price where the bathroom was. Mr. Luttrell took the beer in the glass with him and took a sample of the beer and placed it in a vial.

   Mr. Luttrell went back to the bar area, and in further conversation with Mr. Price, Mr. Luttrell claimed that his pager had gone off, and used that excuse as a reason to exit the licensed premises. Once outside, Mr. Luttrell realized that he had not paid for the beer and Agent Adazzio sent Mr. Luttrell back into the premises to pay it. Mr. Luttrell re-entered the premises. Mr. Price was still behind the bar. Mr. Luttrell paid Mr. Price for the beer that Mr. Price had given Mr. Luttrell.

   Mr. Luttrell then again exited the licensed premises.

   
   

6. At the time of the incident Respondent was not qualified as a Responsible Vendor pursuant to Section 561.705, Florida Statutes, and entitled to protections against suspension or revocation of its beverage license for the illegal sale of an alcoholic beverage to a person not of lawful drinking age, as envisioned by Section 561.706, Florida Statutes.

7. Respondent's disciplinary history involves a violation of Section 561.501, Florida Statutes, for failure to timely file surcharge reports and to remit surcharges collected for periods in 1990. That case was resolved by entry into a Consent Agreement on December 17, 1990, in which Respondent acknowledged the violations and agreed to remit the sum of $250.00, as a civil penalty. This circumstance was in association with Respondent doing business as Scooters Coast To Coast at U.S. Highway #1, MM92.5, Tavernier, Monroe County, Florida, under license number 54-00658, Series 2COP.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action in accordance with Sections 120.569(1) and 120.57(1), Florida Statutes.

9. Petitioner intends to impose discipline on the beverage license held by Respondent. For that reason it must prove the allegations in its administrative action by clear and convincing evidence. See Pic N' Save Central Florida, Inc., vs. Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, 601 So. 2d 245 (Fla. 1st DCA 1992).

10. Petitioner alleges that Respondent, through its president Scott Price, sold, served or gave alcoholic beverages

    to a person under the age of twenty-one, contrary to Section 562.11(1)(a), Florida Statutes. If proven, this would constitute a violation of Section 561.29(1)(a), Florida Statutes. The violation would subject Respondent to revocation or suspension in accordance with Section 561.29(1), Florida Statutes, and the imposition of a civil penalty not to exceed $1,000.00, in accordance with Section 561.29(3), Florida Statutes. However, the imposition of a penalty is subject to the guidelines set forth in Rule 61A-2.022, Florida Administrative Code, which would not allow a greater penalty than a seven day suspension and a civil penalty of $1,000.00.

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

    
    

    It is unlawful for a person to sell, give, serve, . . . alcoholic beverages to a person under twenty-one years of age . . . on the licensed premises.

    
    

12. It has been shown by clear and convincing evidence that Mr. Price, as the agent, servant or employee of the Respondent violated Section 562.11(1)(a), Florida Statutes, based upon the facts found. Thus, Respondent violated Section 561.29(1)(a), Florida Statutes. In accordance with the penalty guidelines announced in Rule 61A-2.022, Florida Administrative Code, as those guidelines carry forward the opportunity for discipline found at Sections 561.29(1) and (3), Florida Statutes,

Respondent's beverage license should be suspended for seven days and a $1,000.00 civil penalty imposed.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

It is recommended that a final order be entered finding Respondent in violation of the aforementioned provisions and imposing a seven day suspension, together with a civil penalty of

$1,000.00.

DONE AND ENTERED this 12th day of August, 1998, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 12th day of August, 1998.

COPIES FURNISHED:

Susan C. Felker-Little, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Scott A. Price, President

Rose Anne, Inc., d/b/a Scooters 102½ West Rich Avenue

Deland, Florida 32720

Richard Boyd, Director Department of Business and

Professional Regulation Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-1007

Lynda L. Goodgame, Esquire Department of Business and

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: 97-005832

Orders for Case No: 97-005832