STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

) MOE'S PETROLEUM CORP., d/b/a ) PLANTATION TEXACO, )

)

Respondent. )

Case No. 07-0631

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on March 27, 2007, via video teleconference with sites in Tallahassee and Ft. Lauderdale, Florida. The parties appeared before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Roshawn Banks, Esquire

The All Law Center Post Office Box 25978

Fort Lauderdale, Florida 33320

For Respondent: Michael J. Wheeler, Esquire

Department of Business and Professional Regulation Northwood Centre, Suite 40

1940 North Monroe Street Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent or its agent illegally sold alcohol to a minor and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On December 5, 2006, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter the "Division"), filed an Administrative Action, charging Respondent with sale of alcohol to a minor. The Administrative Action indicated the Division's intention to impose one or more sanctions against Respondent.

During the course of an informal hearing, Respondent raised disputed issues of material fact. A formal hearing was requested, and this matter was forwarded to the Division of Administrative Hearings (DOAH). By notice to all parties, a final hearing was held via video teleconference on March 27, 2007, with sites in Tallahassee and Fort Lauderdale, Florida.

At the final hearing, the Division presented three witnesses: Investigative Aide #FL0033, Special Agent Yvonne Smith, and Special Agent Michael Fisten. The Division offered two exhibits into evidence, both of which were admitted.

Respondent called two witnesses: Sharika Salmon and Mohammed Shareed. Respondent offered no documentary evidence. The Division recalled Special Agent Smith in rebuttal.

The parties indicated their intent to order a transcript of the final hearing. They were given ten days from filing of the transcript at DOAH to file proposed findings of fact and conclusions of law. The Transcript was filed on April 19, 2007, and each party timely submitted Proposed Recommended Orders, which were duly-considered in the preparation of this Recommended Order.1

FINDINGS OF FACT

1. Respondent, Moe's Petroleum Corp., d/b/a Plantation Texaco, is a small, privately-owned gas station and convenience store. It is owned and operated by Mohammed Shareed.

   Mr. Shareed and his wife are the primary full-time employees of the business. For the period relevant to this matter, Sharika Salmon was a part-time employee.

2. The business sells both gasoline and commercial items to its customers. Sale of packaged alcoholic beverages (beer and wine) is allowed under the business' alcohol beverage license, No. 16-06936, Series 2 APS. Mr. Shareed has owned and operated the business for about two years. He has not been previously cited for violating the terms of his alcohol beverage license.

3. Ms. Salmon is a college student. She obtained a part- time position at the business following discussions between her aunt and Mr. Shareed. It was decided that Ms. Salmon could work

   a few hours each afternoon after class whenever possible. She averaged about 12 hours per week while employed at the business. She was trained as to how to operate the cash register and other machines. Part of her training included specific instructions to ask customers for identification when they purchased alcohol. She understood she was not to sell alcohol to anyone under the age of 21 years.

4. Mr. Shareed advised his employees daily about checking for identification when alcohol was purchased. He placed visible written signs in the store advising customers that minors could not purchase alcohol.

5. On November 16, 2006, at approximately 7:50 p.m., Investigative Aide #FL0033 entered the business. He was working for the Division as an underage cooperative. His job was to attempt to purchase alcohol from various businesses. On the night of November 16, 2006, he did about 15 "buys" during the 5:00 p.m. to 10:00 p.m. time frame. The purchase at

   Mr. Shareed's business was one of those.

   
   

6. On the evening in question, Investigative Aide #FL0033 (at that time 18 years old) entered the business, went to the beer cooler in the back, and selected a six-pack of Heineken beer. He took the beer to the front counter and, along with a pack of gum, placed it on the counter. The investigative aide gave the clerk (Ms. Salmon) a ten-dollar bill from investigative

   funds entrusted to him for that purpose. She took the bill, made change, and handed the change and the beer to the investigative aide. He took his purchases and left the store. No words were exchanged between the investigative aide and the clerk during the sales transaction. Ms. Salmon did not ask the investigative aide for identification in order to ascertain his

   age.

   
   

7. At the time of the transaction, Mr. Shareed was

   
   

   standing just to the clerk's right side concentrating on paperwork related to previous gasoline purchases. He was no more than two or three feet from the clerk. Mr. Shareed was standing at a 90-degree angle from the counter and the clerk. He was not involved in the sale transaction and did not specifically remember it occurring. Mr. Shareed gave his

   employees the right to act independently once they were trained. He did not monitor or oversee their every move.

8. During the transaction, Special Agent Fisten was also in the store, posing as a customer. He was standing behind the investigative aide during the sale and did not hear any words spoken during the entire transaction.

9. The investigative aide took the beer outside where it was taken by Special Agent Smith, who placed it in a bag, marked it for identification, and initialed the identification receipt.

   The beer was then placed in the trunk of Special Agent Smith's vehicle.

10. The special agents then went back into the store and notified Mr. Shareed that they were charging him with sale of alcohol to a minor, a violation of his license. He was cited and instructed about the administrative process. The agents took information from Ms. Salmon as well. In fact, they asked her for identification due to the fact that she looked so young. (Ms. Salmon quit her job after this incident because the process upset her.)

11. During the sale transaction, Mr. Shareed was doing paperwork incident to gasoline purchases made earlier in the day. He was preoccupied with that work and did not notice the sale as it occurred. Mr. Shareed's testimony on that fact is credible; it is not likely that he actively watches or participates in every sale that occurs during the day.

12. Mr. Shareed was not involved in the sale; had he been, he would have requested identification from the investigative aide. The policy of the business was to require identification from anyone purchasing beer who looked young.

13. The business had never previously been cited for violation of its license. Nor was the Division investigating the premises on the basis of a complaint or allegation. Rather,

    the business was simply chosen at random because it was in the area the Division was focusing on that particular day.

14. Mr. Shareed's testimony that he trained his wife and other employees to check identification was credible. Conversely, the testimony of the investigative aide and other agents appears cloudy concerning the distinguishing facts of the sales transaction at issue compared to numerous other transactions during that same evening.

15. Petitioner is seeking to impose a fine of $1,000 and a suspension of Respondent's license for a period of seven

    consecutive days.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2006).2

17. Petitioner has the burden of proving by clear and convincing evidence that Respondent violated Subsections 562.11(1)(a) and 561.29(1)(a), Florida Statutes. See Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987); Pic N' Save Central Florida, Inc. v Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, 601 So. 2d 245, 249 (Fla. 1st DCA 1992).

18. Subsection 562.11(1)(a)1., Florida Statutes, provides:

    
    

    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.

    
    

19. Subsection 561.29(1)(a), Florida Statutes, provides as follows 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 premise, or elsewhere wile in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages . . .

       
       

20. In construing Subsection 561.29(1), Florida Statutes, Florida's appellate courts have consistently held a licensee liable only for his or her personal misconduct. In Pic N' Save, supra, at 250, the court stated:

    Although the statutory language in section 561.29(1) has since 1957 spoken in terms of the Division's power to revoke or suspend a beverage license for violation of the beverage law committed by a licensee or "its agents, officers, servants, or employees," the courts of this state have consistently construed and applied this disciplinary authority only on the basis of personal

    misconduct by the licensee. Thus, while an employee may violate the beverage law in making illegal sales of alcoholic beverages to minors, the licensee's culpable responsibility therefor is measured in terms of its own intentional wrongdoing or its negligence and lack of diligence in training and supervising its employees regarding illegal sales. This limitation on the licensee's liability is consistent with the notion, also long recognized by the courts of this state, that one's license to engage in an occupation is not to be taken away except for misconduct personal to the licensee.

    
    

21. There is no dispute that it is the responsibility of the licensee or its agents to determine the age of all patrons prior to selling alcoholic beverages to them. Lash, Inc. v. Department of Business and Professional Regulation, 411 So. 2d

    276 (Fla. 3d DCA 1982). However, the fact that a licensee or agent sold an alcoholic beverage to an underage person is not sufficient, on its own, to subject the licensee to sanctions. The sale must appear to have been made "knowingly and willfully, or that it was made negligently, without care to diligently attempt to prevent such sales." Trader Jon, Inc. v. State

    Beverage Department, 119 So. 2d 735, 739-40 (Fla. 1st DCA 1960). The facts of the instant case do not indicate a knowing, willful or negligent violation by the licensee.

22. In Woodbury v. State Beverage Department, 219 So. 2d 47, 48 (Fla. 1st DCA 1969), citing in part Trader Jon, supra, the Court stated:

    [A] liquor licensee is not an insurer against violations of law committed on his premises by or through his employees. The licensee is responsible to determine who is underage, but since the inquisition into a charge of violation is equitable in nature and not criminal, he is held only to a reasonable standard of diligence. Before a license can be suspended or revoked, the licensee should be found by the Director to have been culpably responsible for such violation as a result of his own negligence, intentional wrongdoing or lack of diligence. The record should contain competent substantial evidence to support that finding.

    
    

23. The facts in this case point to the conclusion that Respondent was neither negligent, intentionally doing wrong, nor lacking in diligence. He trained his employees, he reiterated the need to request identification, and he had run his business for two years without citation or suspicion on the part of the Division. There is no competent substantial evidence in the record to support a finding against him.

24. In the Pic N' Save case, supra, the licensee was charged with having at least three separate incidents where his agents sold alcohol to underage persons. Nonetheless, that court held that "these incidents cannot legally provide a basis for the inference of negligence and lack of due diligence necessary to support the Division's imposition of discipline." 601 So. 2d at 250. How less culpable was the licensee in the

    instant case where the violation was admittedly a single incident, unprecedented at his place of business.

25. Citing Pauline v. Lee, 147 So. 2d 359, (Fla. 2d DCA 1962), the Pic N' Save court went on to say:

    [T]he holder of an alcoholic beverage license is not, nor can he be, an absolute insurer of the propriety of all conduct and human activities upon his premises, either the general public as patrons or his employees and agents working for him. True, he is held to a high degree of accountability for law violation occurring during the operation of his establishment; but after all, he is still simply the designated holder of a right to do a privileged business under the laws of Florida, the same as a citrus fruit dealer holding a packing house license, or the owner of a driver's license operating a motor vehicle. He must maintain a rigid standard of rectitude, both in his own personal conduct and also in supervising his employees, in the operation of his privileged business; but such conduct and such operation of his privileged business must always be judged on balance and not by any isolated instance. The beverage law, like the real estate license law, is aimed at flagrant and chronic offenders. 194 So. 2d at 328-29. [Emphasis applied]

    
    

    Pic N' Save, 601 So. 2d at 252.

    
    

26. There is not sufficient evidence in this matter to sustain a sanction of the beverage license at issue.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, dismissing the charges against the license of Respondent.

DONE AND ENTERED this 6th day of June, 2007, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 6th day of June, 2007.

ENDNOTES

1/ Respondent's Proposed Recommended Order did not cite to the record, contain conclusions of law, or include a recommendation. Notwithstanding the inadequacy of the Proposed Recommended Order, the findings of fact herein are based on a full review of the record.

2/ Unless specifically stated otherwise herein, all references to Florida Statutes are to the 2006 version.

COPIES FURNISHED:

Michael J. Wheeler, Esquire Department of Business and Professional Regulation Northwood Centre, Suite 40

1940 North Monroe Street Tallahassee, Florida 32399-2202

Roshawn Banks, Esquire The All Law Center Post Office Box 25978

Fort Lauderdale, Florida 33320

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Steven M. Hougland, Ph.D., Director Division of Alcoholic Beverages

and Tobacco

Department of Business and Professional Regulation

Northwood Centre

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: 07-000631

Orders for Case No: 07-000631