vs. ) CASE NO. 75-2013
Respondent. )
Pursuant to notice, a hearing was held on January 22, 1976, at 1300 West Lee Road, Orlando, Florida, before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings.
William A. Hatch, Esquire Department of Business Regulation 725 Bronough Street
Whether or not on or about August 16, 1975, Castlewood International Corporation, a licensed vendor and/or its agent, servant or employee, to wit: Brent Hanry Hansell, did permit and/or allow a person, Johnny Pannell, under the age of 18, to consume alcoholic beverages on its licensed premises, contrary to Florida Statute 562.11(1).
The Petitioner presented its case based upon certain oral testimony offered in the course of the hearing and certain tangible items of evidence offered at the hearing.
Before placing any witnesses on the stand, certain stipulation were entered into the record between the parties. The first such stipulation was to the effect that no violations of the sort alleged in the administrative complaint had been committed by the Respondent in any of the six facilities which it had in the Division of Beverage District Five area, in the two years proceeding the date of the hearing. It was also stipulated that Petitioner's
Exhibit 4, which was a drinking glass, allegedly taken from Johnny Pannell on or about August 16, 1975, while Johnny Pannell was in Big Daddy's number 53, which contained a chemical substance which had as a part alcohol, and that the chain of custody of the glass and contents while in the care of the Division of Beverage Authority and their affiliates remained inviolate, up to and including the date of the hearing. It was further stipulated that Petitioner's Exhibit 1, which is a copy of a license issued for 1975-76 could be admitted into evidence without objection. Further stipulations included an agreement that the Respondent had been duly served with a notice to show cause and attendant administrative complaint, and that the Respondent was duly noticed of the hearing date for January 22, 1976.
The Petitioner called as its first witness, James Lee Yeager, Jr., an agent for the Division of Beverage. On August 15, 1975, the officer met with a group of other officers for purposes of going to check bars in the Kissimmee area for possible violation of the beverage laws, specifically the sale of alcoholic beverages to minors. At around 12:30 A.M. August 16, 1975, the witness entered the premises of the Respondent and momentarily observed the patrons. He indicated that there were 75 to 100 customers in the bar. He then returned outside and met with the other officers, and together they reentered the bar for purposes of checking identifications of select patrons.
On both occasions when the witness entered the bar, he indicated that there was a white female taking cover charge money but that she never asked for any identification.
While in the bar, the witness approached one white male, later identified as Johnny Pannell. When requested to produce some identification, Pannell produced an identification card which has been admitted into evidence as Petitioner's Exhibit 2. This identification card is a photo I.D. with the word Identification affixed and the back of the card has finger prints together with a notary seal. It is noted that the notary has certified the signature, photo and thumb prints; however, the date of birth is not notarized. It was later established through the witness, Johnny Pannell, that the matters set forth on the card, with the exception of the age were correct.
Officer Yeager indicated that when Johnny Pannell was approached that Pannell had in his hand the glass, which has been stipulated to at the commencement of this hearing as to the chain of custody and as to the contents.
When the officer asked for further identification, Pannell produced a drivers license which showed that Pannell was 17 years of age on August 16, 1975. Pannell was therefore placed under arrest for an offense of drinking under age.
Officer Cruz, Division of Beverage, took the stand and indicated that he assisted Officer Yeager in the interrogation of Johnny Pannell, while in the Respondent's premises. The witness recalls that Pannell admitted being 17.
Officer Cruz also agreed with officer Yeager, in that he did not see the lady at the door check any identification when the officers entered. One additional observation solicited in the course of Officer Cruz's testimony, was to the effect that the premises were dark in the main part of the bar.
Agent Perry Lee Lyle of the Division of Beverage, took the stand and testified that he was involved in the identification check in the bar. He
further testified that he arrested Brent Hanry Hansell for permitting the sale of alcoholic beverages to a minor.
Johnny Pannell took the stand for the Petitioner and testified that he was 17 years old, born September 13, 1958. When he entered the bar, according to the witness, the lady asked him for identification and he showed her Petitioner's Exhibit 2. He had purchased this bogus identification card in Orlando, for a price of $5.00, and had used it 5 or 6 times before the night of August 16, 1975. When the officers entered the bar and approached him, he had a drink in his hand and that drink has been identified as Petitioner's Exhibit 2.
When Officer Yeager asked him for further identification the witness said that he did not volunteer that identification but that Officer Yeager found a drivers license which showed the witness to be 17 years of age. One final observation by the witness, was to the effect that he never told the officers that he was under 18 years of age.
At the close of the Petitioner's case the Respondent's attorney moved to dismiss the case because the Petitioner had failed to prove that the premises as existing on August 16, 1975, was a premises licensed to sell alcoholic beverages, by the State of Florida, Division of Beverage. Therefore, according to the Respondent, there could be no proof of the consumption of alcoholic beverages on a licensed premises. This motion will be subsequently considered in the findings of fact in the section of this recommended order entitled CONCLUSIONS OF LAW.
The Respondent presented a case in chief, notwithstanding its motion to dismiss, because the possibility existed that the motion would not be accepted by the undersigned and/or the Director.
The first witness was Enid Marie Hunt. Miss Hunt was working on the door on August 16, 1975, and was the lady that the officers observed in making their entry. Additionally, she was the door checker when Johnny Pannell entered the bar that evening. She recalls checking the identification of Johnny Pannell, specifically the Petitioner's Exhibit 2. She did not ask for further identification although a sign in the foyer indicated that this was a policy of the Respondent to check two identifications.
Some of the comments by the witness about policy matters relating to identifications, were to the effect that they look for identification cards with pictures; however, it was not their policy to accept cards with the initials
I.D. or the words Identification Card. The witness further stated that she remembers the picture in the particular instance and the fingerprints and notary stamp and other matters reflected on the front side of the card, and found this to be satisfactory. She didn't have any explanation for accepting a card with the word Identification, nor did she think that the photo on the identification card made Johnny Pannell appear to be 18 years of age at the time the card was issued. Nevertheless, she said that she felt that he looked 18 years of age at the time he entered the bar on August 16, 1975.
The witness had been working there only two nights, and apparently had not had an opportunity to familiarize herself with the written policy by the Respondent on the subject of identification checks. She did indicate, that Mr. Hansell had instructed her six times on how to check identification cards. Considerations suggested by Mr. Hansell, other than those mentioned before, were that you check identification on persons who appear to be 18 through 22 years old. You do not, as a practice, check those persons who appear to be older.
The witness also seemed to suggest that the policy of checking two identifications could be disregarded if the first identification card appeared obviously legitimate.
Brent Hanry Hansell who was the manager of Big Daddy's number 53, on the night in question and who is still acting in that capacity, took the stand. He testified that he instructed Miss Hunt that she could accept picture drivers license, a draft card, a voter registration card, and a military identification. He indicated that cards with the word Identification or the initials I.D., birth registration cards were types of identification that were not sufficient. He did seem to believe that the notary stamp attached a certain air of legality to an identification document. He stated that the manual issued by the Respondent to the employees of the Respondent sets out the identification procedures to be utilized. He did not testify that Miss Hunt had had an opportunity to read and familiarize herself with that manual. His comment about Miss Hunts training was to the effect that she was working there on the second night, though usually there is a week training period. In the defense of his position of allowing Miss Hunt to work on the second night, he stated that he had briefed her several times on the duties of an identification card checker.
Robert E. Betz took the stand. Mr. Betz is the area supervisor for the Respondent and one of his functions is to assist in the hiring of identification checkers. He stated that the manual discusses those documents which would constitute a sufficient identification. In alluding to the sign found in the foyer of the subject premises, he said that the sign was primarily one designed to discourage under age persons from attempting to purchase or consume alcoholic beverages on the premises.
As commented before, the motion to dismiss was made at the close of the Petitioner's presentation. An examination of the testimony offered by the Petitioner's witnesses, together with the tangible items of evidence would seem to support a finding of a violation on the part of the Respondent, were it not for the failure of one necessary element of proof. The element of proof not shown, is the affirmative proof that the premises in question was a premises licensed to sell alcoholic beverages, under the laws of the State of Florida. The Petitioner's Exhibit 1 does not show that a license was in existance on August 16, 1975, and the record is devoid of any other proof of that fact. Consequently, though the facts, as produced by the Petitioner, show that a sale of alcoholic beverages was made to Johnny Pannell, a minor, and that the identification card would not have been accepted by a proprietor using due diligence and that the acceptance has not been effectively defended against in the Respondent's case in chief, the Petitioner has failed to make out a prima facie case or to establish a violation by the standard of proof necessary in this cause.
CONCLUSIONS OF LAW
The Petitioner has failed to provide that on or about August 16, 1975, Castlewood International Corporation, an alleged licensed vendor, and/or its agent, servant or employee, to wit: Brent Hanry Hansell, did permit and/or allow a person, Johnny Pannell, under the age of 18 to consume alcoholic beverages on its licensed premises, contrary to Florida Statute 562.11(1). It has failed, because it did not prove by prima facie evidence or by the standard of proof necessary in an administrative charge, to show that the premises in question was a premises licensed under the laws of the State of Florida, for the purposes of selling alcoholic beverages. All other elements to prove commission of the offense were shown, in that a showing was made that an alcoholic beverage was
sold to Johnny Pannell, after the production of an identification card which a proprietor exercising due diligence would not have allowed, nor would one of his employees who was using due diligence have allowed.
It is recommended that the Respondent, Castlewood International Corporation, t/a Big Daddy's number 53, be released from further prosecution for the matters set forth in this cause.
DONE and ENTERED this 18th day of February, 1976, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
William A. Hatch, Esquire Department of Business Regulation 725 Bronough Street
