STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-2707

) RICHARD N. AND ANNE M. JIOSNE ) d/b/a BEVERAGE CASTLE-BRANDON, )

)

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, in Tampa, Florida, on November 17, 1983.

   
   

   APPEARANCES

   
   

   For Petitioner: James N. Watson, Jr., Esquire

   Staff Attorney

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

   
   

   For Respondent: Richard N. Jiosne

   2205 Cornell Drive

   Brandon, Florida 33511 ISSUES AND BACKGROUND

   This case concerns the issue of whether the Respondents' beverage license should be suspended, revoked, or otherwise disciplined for permitting the sale of alcoholic beverages to a minor on the licensed premises. At the formal hearing the Petitioner called as witnesses Larry Scoffield, Captain Ervine A. Hooger, Michael A. Olsen, and Charlene Carroll Rogers. The Respondent, Richard Jiosne, testified on his own behalf and called as a witness John Hanks.

   
   

   Counsel for the Petitioner and the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that these proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions contained in this order, they were considered by the Hearing Officer and rejected as being unsupported by the evidence or as unnecessary to the resolution of this cause.

   FINDINGS OF FACT

   
   

   1. At all times relevant to the proceedings in this matter, the Respondents held beverage license No. 39-186, Series 2-APS. The license is issued to a drive-through beverage facility called the Beverage Castle located in Brandon, Florida. The Beverage Castle is owned by the Respondents and managed by Mr. Richard Jiosne.

      
      

   2. On April 29, 1983, Deputies Scoffield and Olsen of the Hillsborough County Sheriff's Department initiated surveillance at the licensed premises because of complaints that their office had received of sales of alcoholic beverages to minors. Deputy Olsen located himself in a wooded area approximately 25 to 30 yards from the licensed premises. Officer Scoffield was in a patrol car approximately 100 yards north of the licensed premises. Officer Olsen observed the licensed premises with a set of field glasses.

      
      

   3. At some point on the evening of April 29, 1983, the specific time being unknown, two white females in a red and white Mustang drove into the licensed premises and purchased a six-pack of Michelob beer. The driver of the Mustang was Tammy Jo Gibson and her passenger was Charlene Carroll Rogers. Both of these women were 18 years of age at the time of the purchase. Neither of the two women was asked for any identification prior to their purchase of the six- pack of beer.

      
      

   4. Tammy Jo Gibson did not testify at the formal hearing and the officers could not give a detailed description of her dress and physical appearance. Charlene Rogers testified but could not identify the person who sold the beer to them. The evidence was conflicting as to whether an employee, John Hanks, or the Respondent, Richard Jiosne, actually sold the beer to Ms. Gibson. From the evidence presented, it could not be determined who actually sold the beer to the two women and thus had the responsibility for checking identification.

      
      

   5. Respondents have a clear policy against selling alcoholic beverages to minors and, prior to this incident, had instructed their employees to check identification of all purchasers.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   7. 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 if 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.

      
      

   8. 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 diligence. The record should contain substantial competent evidence to sup- port 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)

      
      

   9. 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).

      
      

   10. In the instant case the evidence established that alcoholic beverages had been sold to a minor at the licensed premises. However, the evidence did not establish a failure on the part of the Respondents to exercise ordinary care, and thus no culpability was shown.

RECOMMENDATION

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

That the Respondents be found not guilty of the violation charged and that the charge be dismissed.

ENTERED this 28th day of December, 1983, at 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 28th day of December, 1983.

COPIES FURNISHED:

James N. Watson, Jr., Esquire Staff Attorney

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

Richard N. Jiosne Anne M. Jiosne 2205 Cornell Drive

Brandon, Florida 33511

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

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

Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-002707

Orders for Case No: 83-002707