STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 98-5631

)

FATHALLAH J. KAHOK, d/b/a )

JOE'S MARKET, )

)

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 September 23, 1999, by video teleconference, with sites in Tallahassee and Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Elsa L. Whitehurst, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Edward M. Kay, Esquire

633 Southeast Third Avenue, Suite 4F Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On October 28, 1998, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Department), issued a one-count Administrative Action against Respondent, the holder of a 2APS alcoholic beverage license. The complaint charged that:

On or about October 24, 1998, you KAHOK [,] FATHALLAH J. d/b/a JOES MARKET your

agent(s), servant(s), or employee(s) KAHOK [,] FATHALLAH J. did unlawfully sell an alcoholic beverage, to wit: BUDWEISER BEER, on your licensed premises to a person under the age of twenty-one, to wit: ALICIA MAXWELL, contrary to Section 562.11(1)(a), within 561.29(1)(a), Florida Statutes.

Respondent filed a request for hearing whereby he contested the material facts alleged in the Administrative Action and requested a formal hearing. Consequently, on December 22, 1998, the Department forwarded the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing Respondent had requested.

At hearing, Petitioner called Alicia Maxwell, Priscilla Turner, and Reylius Thompson, as witnesses, and Petitioner's Exhibits 1-6 were received into evidence, subject to the

limitations noted on the record. Respondent testified on his own behalf and called Reylius Thompson, Wade Bragg, and Kamram Missaghi, as witnesses. Respondent's Exhibit 1 was received into evidence.

The transcript of the hearing was filed October 26, 1999, and the parties were initially accorded until November 5, 1999, to file proposed recommended orders; however, at the parties' request the time was ultimately extended to December 8, 1999.

Consequently, the parties waived the requirement that a recommended order be rendered within 30 days after the transcript has been filed. Rule 28-106.216(2), Florida Administrative Code. The parties elected to file such proposals and they have been duly considered. 1/

FINDINGS OF FACT

1. At all times material hereto, Respondent, Fathallah J. Kahok, held alcoholic beverage license number 16-00422,

   series 2APS, for the business know as Joe's Market (the "licensed premises") located at 900 North Ocean Drive, Hollywood, Florida.

2. On or about October 24, 1998, the Department undertook an investigation of the licensed premises to ascertain Respondent's compliance with the laws regarding the sale of tobacco products and alcoholic beverages. Visiting the licensed premises, and operating undercover, were Department Special

   Agents Reylius Thompson and Priscilla Turner, and investigative aides (juveniles) Erica Maxwell and Alicia Maxwell. Alicia Maxwell (date-of-birth July 13, 1981) was 17 years-of-age at the time, and the oldest of the investigative aides.

3. Upon arrival at the licensed premises, Erica Maxwell entered the premises where she approached the counter and attempted to purchase a package of cigarettes from the Respondent, Fathallah J. Kahok. Mr. Kahok inquired as to her age and, upon being told she was 16, refused to sell her a package of cigarettes; loudly rebuked her for having made such a request; and told her to leave the store.

4. Following Erica Maxwell's lack of success, the Department introduced Alicia Maxwell into the premises to ascertain Respondent's compliance with the laws regarding the sale of alcoholic beverages. It is this entry which forms the basis for the Administrative Action filed in this case, which alleges that Mr. Kahok unlawfully sold an alcoholic beverage (a Budweiser beer) to Alicia Maxwell (a minor). Mr. Kahok disputes that any such sale occurred.

5. According to the proof offered by the Department, Alicia Maxwell entered the licensed premises, accompanied by Special Agents Thompson and Turner, retrieved a 12-ounce can of Budweiser beer from a cooler, and proceeded to the counter where she paid Mr. Kahok $1.00 for the beer and left the premises. At

   the time (according to the proof offered by the Department), Mr. Kahok did not request to see any identification as proof of legal age, nor did he ask Alicia Maxwell her age.

6. According to the proof offered by the Respondent, a young black girl (presumably Alicia Maxwell) did enter the licensed premises (following Mr. Kahok's refusal to sell a package of cigarettes to Erica Maxwell), but the agents remained outside. Alicia Maxwell was observed to walk to the beer cooler, open the door, pause briefly before the open cooler, and then exit the store. Apparently she did not remove anything from the cooler and (contrary to the proof offered by the Department) she never approached the counter or paid Mr. Kahok for any beer.

7. Following Alicia Maxwell's exit, Special Agents Thompson and Turner entered the licensed premises and charged Mr. Kahok with the unlawful sale of an alcoholic beverage to a minor.

8. Here, considering the proof, it must be concluded that the proof does not demonstrate (or allow a conclusion to be drawn) with the requisite degree of certainty that, as alleged in the Administrative Action, Mr. Kahok sold an alcoholic beverage (a Budweiser beer) to Alicia Maxwell. In so concluding, it is observed that the testimony offered on behalf of the Respondent was at least as credible and persuasive as

   that offered on behalf of the Department. Moreover, it is accepted that Mr. Kahok routinely requested identification, as evidenced by his request for identification from and refusal to sell cigarettes to Erica Maxwell, and it is unlikely that he would have sold an alcoholic beverage to Alicia Maxwell (who, at the time, appeared under the age of 21 years) without first requesting identification. Consequently, on balance, the evidence falls short of demonstrating (clearly and convincingly) that Mr. Kahok committed the offense charge. 2/

   CONCLUSIONS OF LAW

   
   

9. 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.

10. 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 (1997), 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).

11. 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.

12. 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.

    
    

13. Here, the proof failed to demonstrate with the requisite degree of certainty that Respondent violated the provisions of Subsection 562.11(1)(a), Florida Statutes, by selling an alcoholic beverage to a person under the age of

21 years, as alleged in the Administrative Action.

Consequently,

the proof failed to demonstrate that Respondent violated Subsection 561.29(1)(a), Florida Statutes.

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 16th day of December, 1999, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1999.

ENDNOTES

1/ Respondent's proposal (a letter of December 8, 1999) included (attached thereto) copies of deposition which were taken in a criminal proceeding and not offered at the hearing in this case. Those depositions have not been considered.

2/ In so concluding, it is not suggested that the Department or its agents acted improperly.

COPIES FURNISHED:

Elsa L. Whitehurst, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Edward M. Kay, Esquire

633 Southeast Third Avenue Suite 4F

Fort Lauderdale, Florida 33301

Captain Allen F. Nash

Division of Alcoholic Beverages and Tobacco, District 9

Department of Business and Professional Regulation

5080 Coconut Creek Parkway, Suite C Margate, Florida 33063

Joseph Martelli, Director Division of Alcoholic Beverages

and Tobacco

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Barbara D. Auger, 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: 98-005631

Orders for Case No: 98-005631