STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-0920

) ANTHONY J. MILAZZO and CESARE A. ) POLIDORO d/b/a CAVALIER MOTOR INN, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on April 19, 1989, in Sanford, Florida.

APPEARANCES

For Petitioner: John B. Fretwell, Esquire

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

For Respondent: Richard A. Colegrove, Jr., Esquire

801 Orienta Avenue, Suite 2600 Altamonte Springs, Florida 32701

STATEMENT OF THE ISSUES

The issue for determination is whether the Respondents or their employee sold an alcoholic beverage to a person under the age of 21, on December 22, 1988, in violation of section 562.11(1)(e), Florida Statutes. If a violation occurred, a recommendation regarding discipline must be made.

In addition to the substantive issue, Respondents claim that the agency's procedures regarding administrative prosecution for beverage license violations are unconstitutional. This issue is preserved for the record, but is not determined here as this is an essentially judicial function. Carrollwood State Bank v. Lewis, 362 So. 2nd 110, 113-14 (Fla. 1st DCA 1978) cert den mem. 372

So. 2nd 467 (1979)

PRELIMINARY STATEMENT

This proceeding arises from Respondents' timely request for a formal hearing in response to a Notice to Show Cause issued by the Division of Alcoholic Beverages and Tobacco on January 4, 1989.

At the hearing each party presented the testimony of three witnesses and each introduced three exhibits into evidence. The parties stipulated that the beverage delivered by the underaged operative to the investigators was alcoholic.

A transcript was filed on May 1, 1989, and shortly thereafter the parties filed proposed recommended orders. Respondents' filed a separate closing argument; Petitioner included its argument within its proposed order. The evidence and arguments have been carefully considered in the preparation of this recommended order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

1. At all times pertinent to the allegation of the Notice to Show Cause, Respondents were doing business at 3200 South Orlando Drive, Sanford, Seminole County, Florida, as Cavalier Motor Inn, under alcoholic beverage license no. 69- 004675.

   
   

2. On the afternoon of December 22, 1988, the Buccaneer Lounge at the Cavalier was busy with office Christmas parties. It was dark, crowded and noisy.

   
   

3. In response to an earlier complaint, two investigators from the Division of Alcoholic Beverages and Tobacco (DABT) entered the lounge around 5:00 p.m. with an underage operative.

   
   

   That operative, Sherri Russell was born on August 18, 1971, thus was 17 years old in December 1988. She is a friend of the daughter of one of the investigators, David Ramey, and had worked for the agency as a volunteer operative on several prior occasions.

   
   

4. Miss Russell entered the lounge with investigators Ramey and Glover a few feet behind her. She found a place in front of the bar, and the female bartender asked what she wanted to drink. She responded a "Bud Light"; the bartender told her how much it cost and got the drink. Miss Russell paid the bartender and took control of the drink from the bartender. At that, Investigator Ramey approached, removed the drink from Miss Russell and identified himself to the bartender. Miss Russell left the lounge with Investigator Glover.

   
   

5. According to previous instructions, Miss Russell had no identification with her. She was told to respond truthfully if asked her age or if asked for identification. The money for the drink was provided by the investigators.

   
   

6. The entire incident took about five minutes. The only person behind the bar was the female bartender. Co-Respondent, Cesare Polidoro, was standing approximately six to seven feet away from Miss Russell, in an opening in the bar, with a clear view of the transaction.

   
   

7. As Investigator Ramey spoke to the bartender, Cesare Polidoro identified himself as the owner and the three moved into another room to talk.

   
   

8. The only person working in the lounge on December 22, 1988, was the female bartender, Sylvia Wilson. Another employee was out sick. Cesare Polidoro was there to keep order and to fetch change, if necessary, but he never

   tends bar and he did not assist on this occasion. Even though the lounge was extremely busy, he did not call to have his partner come help.

   
   

9. Although he did not anticipate the one employee would be out sick, Cesare Polidoro did anticipate the crowd on December 22, 1988. There were two parties scheduled in the lounge for around 4:30 or 5:00 p.m. The companies scheduled in advance and alerted the owner that approximately 150 people would be involved.

   
   

10. Cesare Polidoro retired and moved to Florida from Elizabeth, New Jersey, where he had worked for twenty-five years as a fire-fighter. He invested his life savings in the business, at the Cavalier, now known as Cesare's Palace.

    
    

    His policy is to avoid selling alcoholic beverages to minors and he instructs his employees in that regard. Both he and his partner continually remind the employees to check identifications. Minors are not good for business as they cause problems and do not have the kind of money to spend ten or fifteen dollars over the counter, according to Cesare Polidoro. The employees are generally conscientious in verifying ages and identification of patrons.

    
    

11. Sylvia Wilson, who has criminal charges pending with regard to the alleged sale, refused to testify on matters directly related to the criminal charges. Cesare Polidoro denied that he witnessed the sale and claimed that he had never seen Sherri Russell before the hearing. Investigator Glover, however, observed Polidoro looking directly at Miss Russell during the entire transaction.

    
    

12. Polidoro's credibility is discredited by two particularly blatant artifices he employed at the hearing.

    
    

    In response to his attorney's question with regard to educational programs for his employees regarding serving alcoholic beverages to minors, he invoked his experience as a "law enforcement officer" in New Jersey and the many cases he saw involving minor children and drugs. As a firefighter, however, he was not an armed law enforcement officer and had limited arrest powers, not including drug offenses.

    
    

    He also claimed that "a fellow by the name of Mr. York" came up to him on the December 22nd and gratuitously volunteered that the investigator bought the drink and gave it to the young woman. He did not explain how this person, whom he did not know, would be interested in sharing the information or would understand its importance. On the date of the hearing, this ephemeron, just as inexplicably, withdrew his assistance and allegedly told Polidoro he was too busy to come testify.

    
    

13. No evidence adduced at hearing established Anthony Milazzo's culpability or implication in the unlawful sale. Cesare Polidoro was culpable. He watched the incident. Moreover he allowed a single employee to become so "swamped" (her term) that it became virtually impossible for her to meaningfully comply with his instructions regarding checking identifications.

    
    

14. The DABT policy regarding incidents of sales to minors is to file administrative charges immediately if the licensee was on the premises. Otherwise, the licensee receives a notice after the first violation and criminal charges are filed against the employee or agent who made the sale. For the second violation, the licensee is notified that an investigation is open and

    criminal charges are filed against the person serving the minor. For the third violation, administrative charges are filed against the licensee and criminal charges are filed against the employee.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to section 120.57(1), Florida Statutes.

    
    

16. Section 562.11(1)(a), Florida Statutes, provides in pertinent part: "It is unlawful for any person to sell, give, serve, or permit to be served alcoholic beverages to a person under 21 years of age or to permit a person under 21 years of age to consume such beverages on the licensed premises. . ."

    
    

    Section 561.29, Florida Statutes provides, in pertinent part:

    
    

    1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:

       1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of the state or of the United States; except that whether or not the licensee or his or its agents, officers, servants, employees have been convicted in any criminal court any violation as set forth in this paragraph shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by chapter 92 or the rules of evidence.

          
          

          (3) The division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, or any rule issued pursuant thereto, not to exceed $1,000 for violations arising out of a single transaction. If the licensee fails to pay the civil penalty, his license shall be suspended for such period of time as the division may specify. The funds so collected as civil penalties shall be deposited in the state General Revenue Fund.

17. The licensee may be guilty of violating the beverage law and of operating a nuisance if he is guilty of intentional wrongdoing or if he fails to exercise due diligence in supervising and maintaining surveillance over the licensed premises. Jones v. State, Department of Business Regulation, 448 So. 2nd 1109, 1111 (Fla. 1st DCA 1984). While sanctions may be imposed for a single violation by a corporate officer, the agency must still prove lack of due diligence by the officer. Surf Attractions v. Department of Business Regulation, 480 So. 2nd 1354 1456 (Fla. 1st DCA 1985)

    
    

    In Jones, supra, there was no evidence to show that the licensee had knowledge of the illegal activity on the premises. In Surf Attractions, supra, the licensee's officer approved the sale based on the purchaser's use of a Missouri traffic ticket and a photo identification card from a community center. In both cases, the courts overturned the agency's imposition of a penalty.

    
    

    Here, the licensee did not make the sale, but watched it. Even if he had not seen it, he was directly responsible for the conditions which made it possible. Cesare Polidoro's testimony with regard to the crowd and lack of help was the same as the other witnesses' testimony. Moreover, he freely admitted that he had advance notice the parties would be convening in his lounge and the number of people involved. In the face of this, he had a duty to assure that his establishment would be properly supervised.

    
    

18. In his proposed recommended order, counsel for Petitioner suggests revocation as an appropriate penalty. There is no evidence of prior violations and no rules or guidelines regarding appropriate penalties. A range of penalties is available in sections 561.29(1) and (3), Florida Statutes, and the recommendation for the ultimate penalty for a first offense is not supported by evidence or argument.

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED: that a Final Order be entered finding the licensee guilty of a violation of section 561.29(1)(a), Florida Statutes and section 562.11(1)(a), Florida Statutes, and imposing a civil penalty of $1,000.00.

DONE and ENTERED this 23rd day of June, 1989 in Tallahassee, Florida.

MARY CLARK

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 23rd day of June, 1989.

APPENDIX

The following constitute specific rulings on the findings of fact proposed by the parties.

PETITIONER'S PROPOSED FINDINGS

1. Adopted in Paragraph #1.

   
   

2. Adopted in substance in paragraphs #3, 4, and 5.

   
   

3. Rejected as cumulative.

   
   

4. Adopted in substance in paragraph #3.

   
   

5. Rejected as cumulative and unnecessary, except for the observation of Polidoro, which is adopted in paragraph #11.

   
   

6. Adopted in substance in paragraphs #2 and 8.

   
   

7. Rejected as unnecessary, except for Ms. Smith's nonappearance at work on the 22nd, which is adopted in paragraph #8.

   
   

8. Adopted in part in paragraphs #10 and 11, otherwise rejected as unnecessary.

   
   

9. Adopted in substance in paragraphs #8, 10, and 12.

   
   

10. Rejected as unnecessary.

RESPONDENT'S PROPOSED FINDINGS

1. Adopted in paragraph #1.

   
   

2. through 4. Adopted in paragraph #3.

1. Adopted in paragraph #2.

   
   

2. and 7. Rejected as contrary to the weight of evidence.

1. Adopted in paragraph 8.

   
   

2. Rejected as contrary to the evidence relating to the incident in issue.

   
   

3. Rejected in part, as the age of Sherri Russell was not checked in the incident at issue. Otherwise adopted in paragraph #8.

   
   

4. Adopted in paragraph #4.

   
   

5. Rejected as contrary to the weight of evidence.

   
   

6. Adopted in paragraph #14.

7. Rejected as unnecessary.

   
   

8. and 16. Rejected as cumulative.

COPIES FURNISHED:

JOHN B. FRETWELL, ESQUIRE ASSISTANT GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1007

RICHARD A. COLEGROVE, JR., ESQUIRE 801 ORIENTA AVENUE

SUITE 2600

ALTAMONTE SPRINGS, FLORIDA 32701

STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING

725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000

LEONARD IVEY, DIRECTOR

DEPARTMENT OF BUSINESS REGULATION DIVISION OF ALCOHOLIC BEVERAGES

AND TOBACCO

725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000

JOSEPH A. SOLE GENERAL COUNSEL

DEPARTMENT OF BUSINESS REGULATION 725 S. BRONOUGH ST.

TALLAHASSEE, FLORIDA 32399-1000

Docket for Case No: 89-000920

Orders for Case No: 89-000920