STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 98-3539

)

1. FOOD & GAS, )

   d/b/a TIME SAVER )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Upon due notice, this cause came on for formal hearing on November 9, 1998, in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

   APPEARANCES

   
   

   For Petitioner: Barry Kling

   Assistant General Counsel Department of Business and

   Professional Regulation 1940 North Monroe Street

   Tallahassee, Florida 32399-1007

   
   

   For Respondent: J. Joseph Hughes, Esquire

   1017-A Thomasville Road Tallahassee, Florida 32303

   
   

   STATEMENT OF THE ISSUE

   
   

   Did Respondent sell an alcoholic beverage to a person under the age of 21, in violation of Section 562.11(1)(a), Florida

   Statutes, as alleged in the Administrative Action issued June 1, 1998?

   PRELIMINARY STATEMENT

   
   

   The Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco served N.W.S. Food & Gas d/b/a Time Saver #9 with an administrative complaint alleging their agent, employee, or servant, Kamel Beshara Goor, did sell, serve, or give an alcoholic beverage to a person under the age of 21, contrary to Section 562.11(1)(a), Florida Statutes.

   Respondent timely requested a formal hearing, and Petitioner referred this matter to the Division of Administrative Hearings on August 3, 1998.

   At formal hearing, convened on November 9, 1998, Petitioner presented the oral testimony of Agent William K. Townsend, of the Division; Deputy Vernon Willis, of the Leon County Sheriff's Office; and Eric Von Strosnider, a high school student working undercover for the Division. Petitioner had a photograph of Strosnider, taken on the date of the alleged illegal purchase, May 29, 1998, admitted in evidence.

   Respondent presented the oral testimony of Kamel Beshara Goor.

   No transcript was provided. All timely filed Proposed Findings of Fact and Conclusions of Law have been considered in preparation of this Recommended Order.

   FINDINGS OF FACT

   1. At all times relevant and material to this proceeding, Respondent held license number 47-02960, series 2-APS, authorizing the sale of alcoholic beverages on the premises of Timesaver #9, located at 2415 Jackson Bluff Road, Tallahassee, Leon County, Florida.

   2. Kamel Beshara Goor is the sole corporate officer and owner of Timesaver #9.

   3. On the evening of May 29, 1998, Eric Von Strosnider entered the licensed premises in an undercover capacity on behalf of Petitioner Agency. Mr. Strosnider was born February 18, 1981, and carried a valid driver's license showing his correct birth date.

   4. Mr. Strosnider removed a single can of "Bud Lite" beer from the beer section of the store and presented it to Mr. Goor for purchase. Mr. Strosnider remembered clearly he picked up a "Bud Lite" because that was the type of beer he always selected during an attempted undercover buy. He paid for the "Bud Lite" and left the store. He immediately met with his Agency contact.

   5. Mr. Strosnider's appearance in court and as evidenced by his photograph taken on May 29, 1998, was such that an ordinarily prudent person would wish to determine that his age was, in fact, over 21, before selling him an alcoholic beverage.

   6. Mr. Strosnider testified that Mr. Goor might have asked him if he had an "ID," but he was certain that Mr. Goor did not ask to see his "ID." Mr. Strosnider had his driver's license

      with his correct birth date with him, but since he was not asked to present it, he did not provide any identification to Mr. Goor.

   7. Leon County Sheriff's Deputy Vernon Willis, who was dressed in plain clothes and present in the store, witnessed Mr. Strosnider's purchase of a can labeled "beer" but did not hear any request for identification.

   8. Mr. Goor did not remember asking for identification. He did not recognize Mr. Strosnider in court and denied any sale to Mr. Strosnider. He clearly testified that he would not sell alcohol to someone who appeared under thirty years of age if he or she said they had identification without checking that identification. However, with some vacillation, he also stated that his standard operating procedure is to ask for identification, and if the customer reaches for identification, he does not need to read it, but if a customer makes any excuse about not having identification with him or her, Mr. Goor refuses to sell. He finally said that if he sees the identification and the customer is under 21 years of age, he does not sell alcoholic beverages to him.

   9. Upon the totality of the evidence and the respective candor and demeanor of the witnesses, I find that the sale of beer to a minor under the age of 21 occurred without any misleading by the minor.

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has

       jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.

   11. Section 561.29, Florida Statutes, provides that the Division is given full power and authority to revoke or suspend a beverage license under the Beverage Law when it is determined upon sufficient cause appearing that the licensee or his or her agents, officers, servants, or employees on the licensed premises violated any of the laws of this State or of the United States.

   12. Section 562.11, Florida Statutes (1997), 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. 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.

   13. There is no evidence herein that Mr. Goor has been criminally prosecuted or convicted of a misdemeanor under Section 562.11(1)(a), Florida Statutes.

   14. Section 562.47(2), Florida Statutes, provides:

       
       

       (2) Proof that the beverage in question was contained in a container labeled "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.

       
       

   15. Rule 61A-3.052, Florida Administrative Code, provides that it is a defense to a violation of Section 562.11(1)(a), Florida Statutes, "if the underage person falsely evidenced that

       he was of legal age to purchase the alcoholic beverage, cigarettes, or tobacco product or consume the alcoholic beverage product and the appearance of the person was such that an ordinarily prudent person would believe that 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 . . ." Florida Administrative Rule 61A-3.052 (Emphasis Supplied).

   16. Rule 61A-3.052, Florida Administrative Code, requires that a person violating these laws satisfy all of the requirements of the provided defenses. Even by his own testimony, Mr. Goor did not perform all of the acts required.

   17. Clear and convincing evidence was presented that without the proper precautions, Mr. Goor sold a "Bud-Lite" beer to Mr. Strosnider, who was under the age of twenty-one at the time of the sale. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   18. Rule 61A-2.022, Florida Administrative Code, contains the Agency's penalty guidelines. The penalty guideline for a violation of Section 562.11, Florida Statutes, sale of alcoholic beverages to persons under the age of 21, is a seven-day license suspension and a $1,000 civil penalty.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Business and Professional Regulation, Division of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order suspending Respondent's alcoholic beverage license number 47- 02960, series 2-APS, for seven days, and imposing a civil penalty in the amount of $1,000.

DONE AND ENTERED this 8th day of January, 1999, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1999.

COPIES FURNISHED:

Barry Kling, Esquire Department of Business

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

J. Joseph Hughes, Esquire 1017-A Thomasville Road Tallahassee, Florida 32303

Richard Boyd, Director Division of Alcoholic

Beverages and Tobacco Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0700

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0700

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: 98-003539

Orders for Case No: 98-003539