STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-2457

) LINDA F. WILLIAMS AND JOHN M. ) MACKER, d/b/a SPEIDI SHACK, )

)

Respondents. )

)

RECOMMENDED ORDER

Notice was provided and on August 4, 1989, in the Commission Chambers, Deland City Hall, Deland, Florida, a formal hearing was held in this case pursuant to Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: John B. Fretwell, Esquire

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

For Respondent: John M. Macker, pro se

238-240 North Atlantic Avenue Daytona Beach, Florida 32018

STATEMENT OF THE ISSUES

The issues presented are those set forth in a notice to show cause filed by Petitioner against Respondents in Case No. AY-74-87-0201. In particular, it is alleged that on March 16, 1988, October 21, 1988 and February 24, 1989, that the Respondents or their agents, servants or employees sold alcoholic beverages to minors in violation of Sections 561.29, Florida Statutes and 562.11(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

This Recommended Order is being entered following review of notes taken at the final hearing and Exhibits admitted in that hearing. An amendment was allowed to Count III to change the reference from Section 561.19, Florida Statutes to 561.29, Florida Statutes.

Parties were given the opportunity to submit proposed recommended orders.

Petitioner availed itself of that opportunity. Respondent did not. The suggested fact finding of the Petitioner is discussed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times which pertain to this Notice to Show Cause/Administrative Complaint, Respondents were doing business at 238-240 Atlantic Avenue, Daytona Beach, Volusia County, Florida under the business name Speidi Shack and pursuant to a beverage license issued by Petitioner. That license number was and continues to be number 74-01802, Series 2-COP.

   
   

2. On March 16, 1988, and again on October 21, 1988, Michael Vanorder, whose birthday is March 27, 1969, purchased a Light beer from employees of the Respondents in the licensed premises.

   
   

3. On February 24, 1989, Tina May purchased a Light beer from an employee of the Respondents in the licensed premises. Her date of birth is August 4, 1968.

   
   

4. The Light beers that were purchased by those two individuals are alcoholic beverages.

   
   

5. In the incident of March 16, 1988, Vanorder entered the licensed premises as an underage operative of the Petitioner. The purpose of underage operatives is to assist the Petitioner in investigations to ascertain whether suspected alcoholic beverage license holders will sell alcoholic beverages to minors.

   
   

6. Vanorder was provided money from the Petitioner to purchase the alcoholic beverage if the licensees, their agents or employees would sell. Betty Warner and Tanya Pandarakis, who are Alcoholic Beverage Agents for Petitioner were in the bar and watched as Vanorder was asked by the bartender what Vanorder wanted. Vanorder indicated that he wanted a Light beer. Mark

   Barker, the bartender, brought a Light beer to Vanorder and accepted payment for that beer. In this purchase, Vanorder was not asked to produce any identification nor was he asked how old he was. Vanorder was under instructions from Petitioner's agents to validly respond to any questions about his age and to provide accurate identification in support of his remarks. The beer that he was given had been opened by the bartender. These events occurred around 8:35

   p.m. The beer that was purchased was then given from Vanorder to Warner. Barker was then arrested by Warner and another Alcoholic Beverage Agent, Fred Dunbar, for selling alcoholic beverages to a minor.

   
   

7. The arrest occurred when Dunbar entered the licensed premises following the sale and identified himself as an Alcoholic Beverage Agent. Prior to leaving the premises on that occasion, Respondent John M. Macker was told of the arrest and why an investigation had been made in the first place about suspected sales to minors in the licensed premises.

   
   

8. Macker came the next day to meet with Dunbar at the invitation of Dunbar. Macker was told that a complaint file would remain open and that underage operatives would continue to be sent into the licensed premises to see if Macker had corrected the problem of selling to underage patrons. Respondent Macker promised that he would have closer supervision and would give training to his employees about proper identification techniques for sales of alcoholic

   beverages in the licensed premises. An official notice was given to the Respondents, a copy of which may be found as Petitioner's Exhibit No. 3 which was admitted into evidence. That notice is dated March 17, 1988 and is issued from Dunbar and is acknowledged as having been received by Respondent Macker.

   It identifies the facts of the sale to a minor and the arrest of Mark Barker and warns Respondents that if the violation occurs again, that Respondents could be charged with the violation of March 16, 1988 and any future violations.

   Throughout this warning phase associated with the sale of March 16, 1988 Respondent Macker was cooperative in his attitude.

   
   

9. As forecast, Petitioner sent Vanorder back into the licensed premises on October 21, 1988 to see if Respondents, their agents, servants or employees would sell him alcoholic beverages. Beverage Agent John Szabo, Agent Dunbar, Lt. Powell and Vanorder went to the licensed premises on that evening. Their activities at the licensed premises commenced around 8:55 p.m. At this time, there were around 10-20 patrons in the bar. Szabo went in first and sat down at the bar and ordered a beer. Vanorder came in some 2-3 minutes later and sat down at the bar. A white female bartender who was identified later as Beth Ann Marsden approached Vanorder and asked him what she could get for him. He asked for a Bud Light. The bartender went to the cooler and came back with an open can of Bud Light and said that the cost of that beer would be $1.25. Vanorder paid her and she gave him back change. Vanorder then went outside the licensed premises and gave the beer to Dunbar. During the course of this purchase, Vanorder was not asked his age or asked for any form of identification which would demonstrate his age. As before, Vanorder was prepared to show a valid identification and give his correct age.

   
   

10. After Dunbar was given the beer, he came into the licensed premises and he and Szabo confronted the bartender with the fact that she had sold beer to an underaged patron. They asked if the owner was on the premises and she said that he was not. The bartender was then charged with selling to a minor. She was given a Notice of Appearance for October 25, 1988 which constituted of a letter of final warning to the licensee.

    
    

11. A third phase of the investigation occurred on February 24, 1989 when Tina May, an underaged operative for the Petitioner assisted in the investigation of sales to minors. Around 10:50 p.m., Officer Szabo, Beverage Officer Sullivan and Tina May went to the licensed premises. Szabo went in the bar first. One customer was in the bar. Szabo asked for a beer and was asked for his identification and showed his license and was served a beer. Before Tina May entered the license premises, she had been instructed to dress in normal attire and to carry her drivers license and to tell the truth about her age and to give the correct identification. Once inside the licensed premises, May sat where she could be seen by Officer Szabo. The other patron left the bar. Around 11:00 p.m., May was approached by Beth Ann Marsden who asked May what she wanted. May replied that she wanted a Bud Light. The bartender asked for identification and a driver's license was produced which showed May to be underage. Marsden was seen to count on her fingers when shown the identification. She opened up a Bud Light beer for May and gave it to her and said that the price of the beer was $1.25. May gave her $5.00 and received change. She then gave the beer to Szabo. Szabo then told the bartender that he was a Beverage Officer. Marsden recognized Szabo from the prior incident with Vanorder on October 21, 1988. Marsden told Szabo that May was 21 years old. Szabo got the driver's license from May and showed it to the bartender who admitted that she had made a mistake and that she didn't look at the month of the birth. She had only looked at the year, 1968. Out of this incident, an Official Notice was prepared, a copy of which may be found as Petitioner's

    Exhibit No. 4 admitted into evidence. It sets out the violations of March 16, 1988, October 21, 1988 and February 24, 1989 and the intention of the Petitioner to file administrative charges against the Respondents for sales to minors.

    Since the Respondents were not there, the list was left with a Rosemarie Savini. That notice was served on November 2, 1989.

    
    

12. Before the time of the final hearing in this case, the sole ownership of the licensed premises had been left with John M. Macker. Linda F. Williams no longer is involved with the license in question.

    
    

13. Respondent Macker's principle business is that of a commercial fisherman. During the pendency of this investigation, he was gone a lot from his licensed premises because of his other work and relied on his employees to act appropriately concerning sales to minors. In the period 1985 until January, 1989, he had not experienced problems with this. He had posted notices around the bar about sales to minors and had instructed his employees about being careful not to sell to minors. He has calendars from beer distributors which assist in ascertaining the age of minors. March 16, 1988 was Barker's first day on the job, as was October 21, 1988 the first day on the job for Beth Ann Marsden. His instructions to his employees was to check identification if people did not look at least in their fifties or older than Respondent. Since these events, Respondent has taken more detailed steps and placed other signs to avoid sales to minors. He doesn't wish these problems to occur again and regrets that they happened on this occasion. On the other hand, he did not ask for help from the Petitioner after the October 21, 1988 incident as was offered. Following the third sale, he has moved into the licensed premises to maintain better control of the circumstance. No other incidents were reported to have occurred beyond that adjustment concerning sales to minors.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case under the authority of Section 120.57(1), Florida Statutes.

    
    

15. Section 562.11(1)(a), Florida Statutes, makes it unlawful for any person to sell, give, serve or permit to be served alcoholic beverages to persons under 21 years of age. Section 561.29(1), Florida Statutes, authorizes the Petitioner to revoke or suspend the beverage license if the licensee, his agents, officers, servants or employees, on the licensed premises, violate the laws of the State of Florida regarding consumption of alcoholic beverages. Petitioner has proven that on these three occasions employees of the Respondents unlawfully sold alcoholic beverages to minors. Respondents were not active participants in those sales but their lack of diligence allowed this continuing course of conduct through the failure to supervise and maintain surveillance in the licensed premises. See Simmons v. Division of Alcoholic Beverages and Tobacco, 465 So.2d 578 (Fla. 1st DCA 1985). Having seen the two persons who were minors at the time of the sales to them, that is, Vanorder and May, prudence would have demanded that those persons when they were sold the alcoholic beverages on those several occasions should have been asked their age and been made to show identification. Moreover, Respondent allowed his employees, on their first evening of employment, to make choices about checking identification of patrons purchasing alcoholic beverages without assistance from Respondent who was not on the scene when the purchases were made. Respondent was also advised of the continuing nature of the investigation following the first incident.

RECOMMENDATION

Having considered the facts, and the conclusions of law reached, it is,

RECOMMENDED that a Final Order be entered which fines the Respondents in the amount of $500 for these violations.

DONE and ORDERED this 19th day of October, 1989, in Tallahassee, Florida.

CHARLES C. ADAMS

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 19th day of October, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2457

Those facts as suggested by the Petitioner are subordinate to facts found in this Recommended Order.

COPIES FURNISHED:

Leonard Ivey, Director

Department of Business Regulation Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1007

Stephen R. MacNamara, Secretary Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

John B. Fretwell, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

John M. Macker

238-240 North Atlantic Avenue Daytona Beach, Florida 32018

Docket for Case No: 89-002457

Orders for Case No: 89-002457