STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-1296

)

LINJACK, INC., d/b/a )

PINK FLAMINGO, )

)

Respondent. )

)

RECOMMENDED ORDER

Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

Harry Hooper, Esquire, of Tallahassee, for Petitioner. Jacob Goldstein, of Tampa, for Respondent.

A formal administrative hearing was held in this case in Tampa on June 22, 1988, on the charges in a Notice To Show Cause, dated January 5, 1988, that the Respondent, Linjack, Inc., d/b/a Pink Flamingo, through Jacob Goldstein, (1) served wine to a minor and (2) possessed on the premises alcoholic beverages (wine) not authorized to be sold by its alcoholic beverage license.

FINDINGS OF FACT /1

1. The Respondent, Linjack, Inc., d/b/a Pink Flamingo, holds alcoholic beverages license number 39-00162, Series 1-COP, for the sale of beer for consumption on the premises at the Pink Flamingo, a cafe located at 210 East Davis Blvd., Tampa, Florida. Jacob Goldstein and his wife own the stock of Linjack, Inc. Jacob Goldstein operates the cafe and serves as its chef.

   
   

2. On December 2, 1987, at approximately 6:35 p.m., C. B. Frock, Jr., a voluntary aide to investigators of the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT), entered the Pink Flamingo, seated himself at a table and told a female hostess that he was waiting for his parents who were meeting him for dinner. Shortly, Jacob Goldstein came from the kitchen, where he was preparing meals, and asked if he could help Frock. Frock ordered a wine cooler. Goldstein told Frock that he did not have wine coolers but that he did have wine. Frock told him he would have wine, and Goldstein soon brought him a glass of wine.

   
   

3. At the time, Frock was only 18 years old and does not appear significantly older than the average 18 year old. Neither Goldstein nor any other employee of the Pink Flamingo asked Frock for proof that he was 21 years old. Goldstein thought Frock looked like he could be 21 years old.

4. Goldstein was in the practice of serving complimentary wine with dinner at the Pink Flamingo although he knew the Respondent's license was for the sale of beer only. In fact, he advertises the practice. He also keeps some wine on the premises for use in preparing meals. 2/

   
   

5. When Goldstein and his wife went to the office of the DABT in Tampa to have the license the Respondent purchased when it purchased the licensed premises transferred to the Respondent, he and the DABT receptionist specifically discussed the limitation of the license to beer sales. During the discussion, the topic of private clubs having members bring their own alcoholic beverages for consumption on the premises or serving members complimentary alcoholic beverages came up. The Respondent did not prove that the receptionist told him and his wife that the Pink Flamingo could serve complimentary alcoholic beverages other than beer. More likely, Goldstein and his wife misunderstood the discussion.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 561.29(1)(a), Florida Statutes (1987), authorizes that Petitioner, the DABT, to revoke or suspend an alcoholic beverage license if the licensee or his or its agents, officers, servants or employees violates state law on the licensed premises. Section 561.29(3), Florida Statutes (1987), also authorizes imposition of a civil penalty, not to exceed $1000 per violation, for violations arising out of a single transaction.

   
   

   Count One

   
   

7. Section 562.11(1), Florida Statutes (1987), makes it illegal to sell, give, or serve alcoholic beverages or permit alcoholic beverages to be served to any person under 21 years of age.

   
   

8. As found, the DABT proved that the Respondent violated Section 562.11(1), and therefore 561.29(1)(a), Florida Statutes (1987). Goldstein, acting for the Respondent, did not ask Frock for any proof of age and did not show that he took any other measures to avoid selling to or serving a minor. Cf. Section 562.11(2), Florida Statutes (1987); Surf Attractions, Inc., v. Department of Business Regulation, etc., 480 So.2d 1354 (Fla. 1st DCA 1985).

   
   

9. The Respondent did not prove his defense of entrapment. He served Frock wine entirely voluntarily.

   
   

   Count Two

   
   

10. Section 562.02, Florida Statutes (1987), prohibits a licensee from having on the licensed premises alcoholic beverages not authorized to be sold by the licensee. The DABT proved that the Respondent violated this statute by having on the licensed premises various wines being used for complimentary drinks with dinner, not just for purposes of preparing meals as permitted by Section 562.025, Florida Statutes (1987).

    
    

11. In order to prove the defense of equitable estoppel against the state, the following elements must be shown: (1) a positive representation as to a material fact, not law, that is contrary to a later-asserted position; (2) reasonable reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. State Department of Revenue v. Anderson, 403 So.2d 397 (Fla.

    1981); Nelson Richard Advertising v. Department of Transportation, 513 So.2d 181 (Fla. 1st DCA 1987); Tri-State Systems, Inc. v. Department of Transportation,

    500 So.2d 212 (Fla. 1st DCA 1986); Kuge v. Department of Administration, Division of Retirement, 449 So.2d 389 (Fla. 3d DCA 1984); Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971). As a general rule, equitable estoppel will be applied against the state only in rare instances and under exceptional circumstances. North American Co. v. Green, 120 So.2d 603 (Fla. 1959). The courts have consistently held that estoppel of the state requires a positive act or statement by a government official. Gay v. Inter-County Tel. & Tel. Co., 60 So.2d 22 (Fla. 1952); Department of Administration v. Flowers, 356 So.2d 14 (Fla. 1st DCA 1978); Greenhut Construction Co. v. Henry A. Knott, Inc., sura. Estoppel cannot rest on mere inadvertence, ignorance, or silence. See also, Special Disability Trust Fund, etc. v. Master Distributors, 418 So.2d 1124 (Fla. 1st DCA 1982)

    
    

12. As found, the Respondent's evidence was insufficient to prove the elements of an estoppel against the DABT.

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order finding the Respondent, Linjack, Inc., guilty as charged under both counts of the Notice To Show Cause and imposing a civil penalty of $1000.

RECOMMENDED this 7th day of July, 1988, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1988.

ENDNOTES

1/ Explicit rulings on the parties' proposed findings of fact may be found in the attached Appendix To Recommended Order, Case No. 88-1296.

2/ Primarily for purposes of assessing the appropriate penalty in this case, it is noted that, after attempting to require the DABT to "cross every 't' and dot every 'I'" in the presentation of its case-in-chief, Goldstein admitted the essential elements of the charges in his own direct testimony.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1296

To comply with Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any):

1.-2. Accepted and incorporated.

3. First sentence, accepted and incorporated; second sentence, accepted but subordinate and unnecessary.

4.-5. Accepted and, to the extent necessary and not subordinate, incorporated.

6.-10. Accepted but subordinate and unnecessary.

COPIES FURNISHED:

Harry Hooper, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Linjack, Inc.

c/o Jacob Goldstein

210 East Davis Boulevard Tampa, Florida 33606

Leonard Ivey, Director

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Joseph A. Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Docket for Case No: 88-001296

Orders for Case No: 88-001296