Judges: D. R. ALEXANDER
Agency: Department of Business and Professional Regulation
Latest Update: Apr. 27, 1989
Summary: Licensee found guilty of selling beer to minor.
89-0323STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 89-0323
) BLUE SUN, INC., d/b/a PHILLIPS ) CORNER CRUISE-THRU, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 11, 1989, in Tampa, Florida.
APPEARANCES
For Petitioner: Harry L. Hooper, III, Esquire
725 South Bronough Street Tallahassee, Florida 32399-1007
For Respondent: Nancy Krueger, Manager
2245 East Fletcher Avenue Tampa, Florida 33612
BACKGROUND
This matter arose when petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, issued a notice to show cause on November 28, 1988 charging that respondent, Blue Sun, Inc. d/b/a Phillip's Corner Cruise-Thru, a licensed beer vendor, had violated state law by selling an alcoholic beverage to a minor on three occasions. Thereafter, respondent requested a formal hearing under Subsection 120.57(1), Florida Statutes (1987), to contest the agency's action. The matter was referred by petitioner to the Division of Administrative Hearings on January 19, 1989 with a request that a hearing officer be assigned to conduct a hearing.
By notice of hearing dated February 16, 1989 a final hearing was scheduled on April 11, 1989 in Tampa, Florida. On April 7, 1989 the case was transferred from Hearing Officer Arnold E. Pollock to the undersigned. At final hearing, petitioner presented the testimony of Keith B. Hamilton, a Division investigator, and James L. Leschner, a Division investigative aide. Also, it offered petitioner's exhibits 1-10. All exhibits were received in evidence.
Respondent presented the testimony of Nancy Krueger, its manager, Robert Krueger, the manager's brother, and Dale Johnson, a customer and friend of the manager. There is no transcript of hearing. Proposed findings of fact and
conclusions of law were filed by the petitioner on April 21, 1989. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order. 1/
The issue is whether respondent's license should be disciplined for the reasons alleged in the notice to show cause.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
At all times relevant hereto, respondent, Blue Sun, Inc. d/b/a Phillip's Corner Cruise-Thru, was a licensed beer vendor having been issued Series 2-APS license number 39-01076 by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent uses its license at a business known as University Texaco located at 2245 East Fletcher Avenue, Tampa, Florida. The store is located close to the University of South Florida campus. Its manager is Nancy Krueger, who appeared on behalf of the licensee.
On the evening of December 4, 1987 a Division investigator, Keith B. Hamilton, conducted an investigation of respondent's licensed premises to determine if respondent was selling beer to minors. The investigation was prompted by an unidentified complaint that beer was being sold to minors. It was the Division's practice that when such complaints were received, it sent a minor onto the premises for the purpose of purchasing alcoholic beverages. In this case, a sixteen year old minor, Scott Meredith, drove his personal car to the store and, while Hamilton stayed across the street and observed the transaction, ordered a twelve ounce can of Budweiser beer. The store clerk, John A. Damm, did not check Scott's identification or verify his age and sold him the beer. Afterwards, Hamilton met with Damm, obtained his identification and issued a criminal citation for Damn to appear in court for selling beer to a minor.
Around 10:45 p.m. on July 8, 1988 Hamilton and a Division investigative aide, James Leschner, who was then 17 years of age, visited respondent's licensed premises for the purpose of determining if Leschner could purchase beer. While Hamilton stayed across the street and observed the transaction, Leschner drove to the front of the store in his own car and ordered a six-pack of Budweiser beer. The clerk, Brian Szcinski, did not check Leschner's identification or verify his age and sold him the beer. Szcinski was issued a citation requiring him to appear in court. After the incident occurred, Szcinski advised the manager what had happened.
On September 10, 1988 Hamilton and Leschner returned to respondent's licensed premises. Again, while Hamilton observed from across the street, Leschner drove his own car to the front parking area and ordered a can of Budweiser beer. The order was initially placed with an unidentified male clerk but Krueger accepted the money and handed the beer to Leschner. The minor's identification was not checked. After the sale took place, Hamilton issued Krueger a criminal citation requiring her to appear in court. Also, a notice to show cause was later issued against the licensee seeking to impose a fine and suspend its license.
Krueger blamed the three incidents on a high turnover of employees and the failure of a few employees to conform to store policy. According to
Krueger, despite posting signs, advising employees of the rule on sales to minors, and instituting a policy of checking the identification of every person who looked under thirty years of age, these three sales inadvertently occurred. She asked for leniency given the number of years the business has been operating and the isolated instances of misconduct. She also complained that after the December 4, 1987 sale occurred, the Division did not personally advise her or the owner of the incident but merely served a citation on the clerk.
According to agency records, respondent entered into consent agreements with the Division in 1983 and 1985 for the same type of violation.
The agency does not have a rule containing suggested penalty guidelines for violations by licensees. However, its investigator recommended the imposition of a 60-day suspension of respondent's license and a $3,000 civil penalty as being appropriate under the circumstances.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).
Since respondent's business license is not a "professional license," Ferris v. Turlington, 510 So.2d 292 (Fla. 1987), the Division need only prove its allegations in the notice to show cause by a preponderance of the evidence.
Subsection 562.11(1)(a), Florida Statutes (1987) makes it "unlawful for any person to sell ... alcoholic beverages to a person under 21 years of age..." In addition, Subsection 561.29(1)(a), Florida Statutes (Supp. 1988) authorizes the Division to discipline a licensee for violating "any of the laws of this state."
By a preponderance of the evidence, petitioner has demonstrated that, on three occasions, respondent violated subsection 562.11(1)(a) by selling beer to a minor. Given respondent's prior record, and considering all mitigating circumstances, the agency's recommended penalty is appropriate.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection
562.11(1)(a), Florida Statutes (1987) on three occasions. It is further recommended that respondent's APS license number 39-01076 be suspended for sixty days and it pay a $3,000 civil penalty.
DONE and ENTERED this 27th day of April, 1989, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1989.
ENDNOTE
1/ Respondent submitted a post-hearing letter containing further argument on its behalf. The letter was received on April 24, 1989 and has been considered by the undersigned in the preparation of this Recommended Order.
APPENDIX
Petitioner:
Covered in finding of fact 1.
Covered in finding of fact 2.
Covered in finding of fact 3.
Covered in finding of fact 4.
Covered in findings of fact 1 and 5. 6-7. Covered in finding of fact 5.
8. Covered in finding of fact 6.
COPIES FURNISHED:
Harry L. Hooper, III, Esquire 725 South Bronough Street Tallahassee, Florida 32399-1007
Nancy Krueger, Manager 2245 East Fletcher Avenue Tampa, Florida 33612
Leonard Ivey, Director
Division of Alcoholic Beverages and Tobacco
725 South Bronough Street Tallahassee, Florida 32399-1007
Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Docket for Case No: 89-000323
Orders for Case No: 89-000323
