Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on May 24, 1983.
For Petitioner: William A. Hatch, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Paul S. Carr, Esquire
Pursuant to a Notice to Show Cause issued November 22, 1982, the Respondent was charged with two violations of the beverage laws of this state. Respondent was charged with allowing a person under 19 years of age to consume alcoholic beverages on her licensed premises. Respondent was also charged with continuing to sell alcoholic beverages after discontinuing the sale of full course meals in violation of Florida Statute 561.20(3)(1981) and Rule 7A-3.15, Florida Administrative Code.
At the formal hearing, Petitioner called as witnesses Mr. W. R. Wiggs, a beverage officer for the Division of Alcoholic Beverages and Tobacco; Mr. James Pistole, a deputy for the Hillsborough County Sheriff's Department; and Joe Circhirillo, also a deputy for the Hillsborough County Sheriff's Department.
Respondent testified on her own behalf and called as witnesses Kathryn Singer, James D. DeBusk, and Heidi Buzbee. Petitioner offered no exhibits and Respondent offered and had admitted into evidence one exhibit consisting of four photographs.
Counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted herein, they were considered and determined by the Hearing Officer to be irrelevant to the issues in this cause or not supported by the evidence.
At all times material hereto, Respondent held Beverage License No. 39- 00771, SRX Series 4-COP, issued to Sharon's Surf-n-Turf, located at 111 East Shell Point Road, Ruskin, Florida.
During the course of the hearing, it was stipulated by and between the parties and it is now found that the beverage referred to in Count I of the administrative complaint was an alcoholic beverage.
On October 29, 1982, W. R. Wiggs, an investigator for the Division of Alcoholic Beverages and Tobacco, went to the licensed premises of Sharon's Surf- n-Turf Restaurant and Lounge. He arrived at approximately 9:30 p.m. and the lounge area was full of patrons. Before entering the licensed premises, Investigator Wiggs observed a sign outside the restaurant which reflected that the restaurant was open from 11:00 a.m. to 10:00 p.m. and there was live entertainment from 9:30 p.m. to 3:00 a.m. Beverage Officer Wiggs was accompanied by Beverage Officer Miller. Upon entering the licensed premises, Wiggs and Miller sat at the bar and each ordered a Michelob beer. Beverage Officer Miller asked if he could order a full course meal and the bartender responded that the kitchen was closed.
Beverage Officers Miller and Wiggs were in the licensed premises approximately one and one-half hour and observed no food being served. The patrons in the lounge were consuming alcoholic beverages. The lights were not on in the restaurant portion of the licensed premises, and the door to the restaurant was locked. Neither Officer Wiggs nor Officer Miller checked the kitchen to determine if it was in fact closed.
While in the licensed premises, Officer Wiggs, along with Deputy James Pistole, of the Hillsborough County Sheriff's Department, observed a young lady named Tammy Almond, sitting at one of-the tables and consuming an alcoholic beverage. She appeared to be younger than 19 years of age. After arresting Ms. Almond, it was determined from her driver's license that she was, in fact, 18 years of age, having a date of birth of March 28, 1964. When Officer Wiggs and Deputy Pistole arrested Ms. Almond, she stated that the drink which was seized belong to someone else and she was sipping out of it. There was no evidence that Tammy Almond had purchased the drink or that she had been personally served the drink.
At the time Tammy Almond was arrested, all other persons in the lounge who appeared to be possibly underage were asked for identification. Tammy Almond was the only minor in the licensed premises that evening.
Tammy Almond had previously been married and was now divorced. The Respondent and her employees were aware of her prior marriage. On this evening, James D. DeBusk was checking identification at the door to the licensed premises. He had checked Tammy Almond's identification and it had reflected that she was two or three months over 19 years of age. The identification appeared to be a Florida driver's license. There was nothing suspicious about the identification. The licensed premises always has a doorman checking
identification on Wednesday night through Saturday night. The bartenders and waitresses would also check identification of patrons.
The licensed premises is divided into a restaurant/ dining room area and a lounge. The lounge has tables, chairs, a dance floor, and bandstand. Food is served in the dining room area as well as the lounge area. Menus for food are posted on the wall just inside the doorway of the lounge.
The Respondent, prior to and at the time of the incident involving Tammy Almond, had a strict policy against allowing minors to consume alcoholic beverages on the licensed premises. On the nights when the lounge is busiest, Wednesday through Saturday, a doorman is on duty to check the identification of persons entering the lounge. Waitresses and bartenders were instructed to check the identification of persons who appeared to be younger than 19 years of age. The Respondent's policy was to require two acceptable forms of identification whenever a person produces or shows a questionable identification. If they cannot produce such identification, they are not permitted to enter the licensed premises. The restaurant and lounge are managed and supervised by the Respondent. At the time of Tammy Almond's arrest, the Respondent was in the kitchen area of the licensed premises training a new cook.
Food is served at the Respondent's licensed premises from 11:00 a.m. to closing time. On the evening of October 29, 1982, the kitchen was open and food was actually ordered. At least four meals of steak and eggs were ordered and served after midnight. The licensed premises is primarily a restaurant operation and serves several different types of full course meals. These full course meals were available on the evening of October 29, 1982.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.
Section 561.29(1)(a), Florida Statutes (1981), empowers the Division of Alcoholic Beverages and Tobacco to revoke or suspend an alcoholic beverage license when it finds that the licensee, or its employees, while in the scope of employment, have violated the laws of Florida on the licensed premises. Florida Statute 562.11(1)(1981) makes it unlawful in Florida to sell, serve, or permit to be served alcoholic beverages to a person under 19 years of age.
The licensee is not, however, an insurer against violations of law committed on its licensed premises. Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). Specifically, with regard to selling to minors, the First District Court of Appeal has held:
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 substantial com-
petent evidence to support that finding. Id. at 48.
License revocation proceedings, such as this, are penal in nature. The prosecuting agency must prove its charges by clear and convincing evidence and by evidence as substantial as the consequences of the particular action or violations charged. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2d DCA 1975); Bowling
v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).
To establish negligence, it must he found that the licensee failed to exercise ordinary care in the maintenance of the premises or the supervision of its employees. See, Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979); Lash, Inc. v. Department of Business Regulation, 411 So.2d
276 (Fla. 3d DCA 1982)
Measured by these standards, it is concluded that Petitioner has failed to prove that Respondent violated Florida Statute 561.11(1) 1981), as alleged in the first charge of the Notice to Show Cause. The charge of sale to a minor in this case involved a single isolated incident of one minor consuming part of one drink on the licensed premises. There was no evidence that the drink was actually served or sold to the minor by Respondent or one of her employees. On the evening of the incident, Respondent was present and supervising her employees. There was a doorman on duty, whose only duty was to check I.D.s of persons seeking to enter the lounge. The lounge was very crowded and after checking I.D.s of all young appearing persons in the lounge, the beverage officers and deputies found no other minors present in the licensed premises.
The minor's identification had been checked when she entered the lounge. At the time of her arrest, she refused to produce any identification. The young Than who checked her identification noticed nothing irregular about her identification and felt that she appeared to be over 19 years of age. The beverage officer testified that to him, Tammy Almond appeared younger than 19. However, age, like beauty, is in the eyes of the beholder. No photograph or other such evidence of the physical appearance of Tammy Almond was offered into evidence.
The evidence did establish that Respondent had a strict policy against permitting minors to consume alcoholic beverages on the licensed premises. A doorman checking identification was on duty Wednesday through Saturday night.
As a backup, waitresses and bartenders were also instructed to check the identification of any patrons of questionable age. Respondent personally checked identification of patrons on occasion. She had on at least two prior occasions checked Tammy Almond's identification. She was also aware that Tammy Almond had previously been married and divorced. There was no evidence that Respondent had previously been charged with selling alcoholic beverages to minors.
Respondent was also charged with violating Florida Statute 561.20(3) and Rule 7A-3.15, Florida Administrative Code. A special restaurant beverage license, such as the one in the instant case, is an exception to the quota limitations which otherwise apply to the issuance of beverage licenses in the State of Florida. In order to qualify and maintain such a license, Section 561.20(2)(a)3., Florida Statutes, requires that the restaurant have:
. . . 2,500 square feet of service area and [be] equipped to serve 150 persons full-course meals at tables at one time, and deriv[e] at least 51 percent of its gross revenue from the sale of food
and nonalcoholic beverages; . . . nor shall intoxicating beverages be sold under such license after the hours of serving food have elapsed.
Further, Rule 7A-3.15, Florida Administrative Code, provides in relevant part:
All restaurants holding a special restaurant license, in addition to the quota limitation imposed by Section 561.20(1), Florida Statutes, must dis- continue the sale of alcoholic beverages whenever the service of full course meals is discontinued. A hotel, motel or motor court holding a license issued
under Section 561.20(2), Florida Statutes, or any applicable special act, must dis- continue the sale of alcoholic beverages during periods when such hotel, motel
or motor court is closed.
The Division considers the following as the minimum requirements for bona fide full course meals, prepared.
Salad
Entree
Dessert
Beverage
Bread and Butter
The following criteria will be used in determining whether or not the holder of a special restaurant license is a bona fide restaurant:
The restaurant must derive at least
51 percent of its gross revenue from the sale of food and nonalcoholic beverages, except
those restaurants issued special restaurant licenses prior to April 18, 1972 which shall
be required to derive at least 30 percent of its gross revenue from the sale of food and non- alcoholic beverages. The 51 percent or 30 percent shall be determined by taking the average monthly gross revenue of the sale of food and non alcoholic beverages over a period of any
calendar year.
The principal business of the restaurant must cater to and serve full course bona fide meals to the general public.
In the instant case, DABT seeks to discipline the Respondent's license for failing to discontinue sales of alcoholic beverages on October 29, 1982, after full course meal service had been discontinued. The evidence established that the door to the restaurant/dining room area was locked and the lights in that area were off. Beverage Officer Miller was told by an employee that the kitchen was closed when Officer Miller asked if he could order a full course meal. The beverage officers did not go into the kitchen area to determine if, in fact, the kitchen was closed. Beverage Officer Wiggs and not Beverage Officer Miller testified about the statement by the employee that the kitchen was closed. The beverage officers did not observe any food served while they were present in the licensed premises. However, the law does not require that patrons actually order food. The rule and statute only requires that the Respondent serve and make available full course meals while serving alcoholic beverages.
The evidence established that the kitchen was, in fact, open and a cook was on duty. There were at least four meals with steak served after midnight. At the time Tammy Almond was arrested, Respondent herself was in the kitchen area working with a new cook. Based upon these facts, Petitioner has failed to prove that Respondent had, in fact, discontinued serving full course meals on October 29, 1982, and continued to serve alcoholic beverages.
