STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1934

)

GOODLETTE FOOD MART, INC., )

t/a GOODLETTE FOOD MART, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before Marvin

1. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on September 12, 1983, in Fort Myers, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Janice G. Scott, Esquire

   Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

   
   

   For Respondent: Antonino Sciarrino, President

   Goodlette Food Mart, Inc.

   499 Goodlette Road Naples, Florida

   
   

   ISSUES AND BACKGROUND

   
   

   The issue in this case is whether the Respondent's alcoholic beverage license should be revoked, suspended, or otherwise disciplined for a violation of Section 562.11, Florida Statutes, a provision of the Florida Beverage Law, which prohibits the sale of alcoholic beverages to a minor.

   
   

   At the formal hearing the Petitioner called as witnesses: Thomas L. Stout, Bernard W. Cooper, Timothy J. Culley, and Craig Brady Cooper. Mr. Antonino Sciarrino testified on behalf of respondent. The Petitioner offered and had admitted into evidence two exhibits and the Respondent offered no exhibits into evidence.

   
   

   Both the Respondent and counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the hearing officer. To the extent that those proposed findings and conclusions of law are inconsistent with the findings and conclusions contained within this order they were considered by the hearing officer and rejected as being unsupported by the evidence or unnecessary to the resolution of this cause.

   FINDINGS OF FACT

   
   

   1. At all times material to this action the Respondent was the holder of beverage license number 21-478, Series 2COP. This license was issued for the licensed premises located at 499 Goodlette Road, Naples, Florida.

      
      

   2. The licensed premises is a convenience store that also sells various types of food and dry good items plus sandwiches and beer.

      
      

   3. The Goodlette Food Mart, Inc. is owned and managed by Antonino Sciarrino, the President of the Respondent corporation. The Goodlette Food Mart opened for business on January 1, 1982. Prior to this time Mr. Sciarrino operated a deli in New York City where he also sold beer.

      
      

   4. Sometime during October, 1982 (the specific date being unknown) , Craig Cooper, a minor, 16 years of age was stopped by a Naples police officer and found to be in the possession of a six-pack of beer. This beer had been purchased by Craig Cooper at the Goodlette Food Mart and he informed the police officer of this fact. Mr. Cooper was asked by the police officer if he would be willing to cooperate in a controlled buy at the Goodlette Food Mart. Mr. Cooper indicated that he would.

      
      

   5. Subsequent to the October stop Craig Cooper agreed to cooperate with the police in making a controlled purchase of alcoholic beverages at the Goodlette Food Mart and on November 6, 1982, Mr. Cooper was contacted by a Naples police officer and was given cash. He was asked to go to the Goodlette Food Mart and to use the cash he had been given to attempt to purchase alcoholic beverages. From the police station Craig Cooper drove to the Goodlette Food Mart and Officer Culley of the Naples Police Department followed him. While Craig Cooper went inside the Goodlette Food Mart Officer Culley observed from the parking lot,

      
      

   6. Craig Cooper entered the Goodlette Food Mart and went directly to the cooler area where soft drinks and alcoholic beverages are kept. He removed a six-pack of Heineken Beer. He then proceeded to the cash register and paid for the beer. The cashier on duty was Robert Peterson. He did not question Craig Cooper or ask him for any identification at the time that Mr. Cooper paid for the beer. Mr. Cooper then left the store and turned the beer over to Officer Culley.

      
      

   7. At the time of the purchase by Craig Cooper, the manager Antonino Sciarrino was not present in the store. Mr. Sciarrino, was in the store 10 to

      12 hours a day, but was generally not present in the evenings. Robert Peterson had been hired as a part-time employee approximately two or three months prior to November 6, 1982. Mr. Sciarrino had no prior problems with Robert Peterson and was not aware of any instances where he had sold beer to minors.

      
      

   8. At the time Robert Peterson was hired, he was instructed to not sell to minors and to always ask for and check identification prior to selling alcoholic beverages. There was also a sign posted in the employees room where they clock in and clock out which warned them that they could be criminally prosecuted for failing to check identification and for selling alcoholic beverages to minors.

      
      

   9. The Goodlette Food Mart had a policy against selling to minors and all employees were instructed regarding this policy and were required to check identification prior to selling alcoholic beverages. There were signs posted on

      the cooler and the cash register informing customers that minors were prohibited from purchasing alcoholic beverages and that identification was required, There was also a sign next to the cash register which reminded the cashier to check the customers' I.D. when purchasing alcoholic beverages. This sign also gave the date and year which the birthdate on the identification had to predate in order for the person to purchase alcoholic beverages. The purpose of this sign was to enable employees to more efficiently and more accurately check identifications.

      
      

   10. Immediately following notification of the November 6, 1982, sale to Craig Cooper, Mr. Sciarrino terminated Robert Peterson's employment with the Goodlette Food Mart.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

       
       

   12. Section 561.29(1)(a), Florida Statues (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.

       
       

   13. 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 deter- mine 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 vio-

       lation as a result of his own negligence, intentional wrongdoing or lack of dilli- gence. The record should contain substantial competent 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).

       
       

   14. To establish negligence, it must be 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).

   15. In the instant case the licensed premises is a convenience store which is managed by Antonino Sciarrino, the owner and president of the Respondent corporation. Mr. Sciarrino has instructed all Respondent's employees on the requirements of asking for identification and the possible consequences of selling alcoholic beverages to minors. There is a sign posted in the room where the employees clock in and clock out which states that an employee can be criminally prosecuted for selling alcoholic beverages to minors. There are signs on the cooler area as well as the cash register that informs customers that minors are not allowed to purchase alcoholic beverages and that identification of some type will be required in order to make such a purchase. There is also a sign on the clerk side of the cash register which displays the date before which a person must have been born in order to purchase alcoholic beverages. This sign is changed daily and aids the clerk or cashier in checking identification more accurately.

       
       

   16. The Respondent has a clear policy against selling alcoholic beverages to minors. The employees are made aware of this policy when they are hired and each day thereafter by the sign in the employee room. Mr. Sciarrino is present at the licensed premises 10 to 12 hours per day. He was not present when the sale to Craig Cooper occurred. There was no evidence that Mr. Sciarrino was aware or had any reason to suspicion that his employee Robert Peterson was selling alcoholic beverages to minors. Although the facts establish a clear illegal sale to a minor, the facts do not establish any culpability or negligence on the part of the Respondent. By failing to prove that Respondent did not meet the reasonable standard of diligence to which it is held, the Petitioner has failed to prove the violation as alleged in the Notice to Show Cause. See, Trader Jon, Inc. v. State Beverage Department, 119 So.2d 735 (Fla. 1st DCA 1960).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED:

That thee Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed.

DONE and ORDERED this 14th day of October, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1983.

COPIES FURNISHED:

Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Antonino Sciarrino, President Goodlette Food Mart, Inc.

499 Goodlette Road Naples, Florida

Gary Rutledge, Secretary Department of Business Regulation

The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Howard M. Rasmussen, Director Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-001934

Orders for Case No: 83-001934