Judges: MARY CLARK
Agency: Department of Business and Professional Regulation
Latest Update: Oct. 09, 1989
Summary: The issue for determination is whether the Respondents violated Section 562.11(1)(a), Florida Statutes by selling alcoholic beverages to a person under the age of 21 on two separate occasions, as alleged in a Notice to Show Cause dated March 13, 1989.Employee checked underage person's ID but still sold the beer. Licensee has exercised diligence and not liable for this violation.
89-2725STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION,) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 89-2725
) MAX R. AND ESTHER M. JONES, d/b/a ) JONES GROCERY & MEATS, )
)
Respondent. )
)
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 September 14, 1989, in Kissimmee, Florida.
APPEARANCES
For Petitioner: Thomas A. Klein, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
For Respondent: Addison E. Walker, Esquire
4313 Neptune Road
St. Cloud, Florida 32769 STATEMENT OF THE ISSUES
The issue for determination is whether the Respondents violated Section 562.11(1)(a), Florida Statutes by selling alcoholic beverages to a person under the age of 21 on two separate occasions, as alleged in a Notice to Show Cause dated March 13, 1989.
PRELIMINARY STATEMENT
Respondent, Max Jones, requested this proceeding in response to a Notice to Show Cause issued by the Division of Alcoholic Beverages and Tobacco. In his request he stated that both sales in issue were made by an employee without his knowledge or consent.
At the hearing, the Division presented the testimony of Investigator Steve Green, Investigator Mark Douglas, Michelle Haynes Newman and Kris VanSchaick Copeland. The Division's two exhibits were received in evidence.
Respondent, Max Jones, testified in his own behalf and offered no other witnesses nor any exhibits.
After the hearing Petitioner filed a proposed recommended order and Respondent filed a letter summarizing his defenses. These have been considered in the preparation of this recommended order. The findings of fact proposed by Petitioner are substantially adopted herein.
FINDINGS OF FACT
Max R. Jones owns a small family grocery at 2020 North Main Street in Kissimmee, Florida. He and his wife, Esther M. Jones, doing business as Jones Grocery and Meats at that address, are now and at all relevant periods have been licensed by the Division of Alcoholic Beverages and Tobacco (DABT) for the sale of wine and beer under license number 59-00056 2APS.
Besides beer and wine, the Jones' sell groceries, meats and delicatessen items. Mr. Jones and his wife run the business with the assistance of four or five employees.
Sometime prior to December 16, 1988, DABT received an anonymous complaint that underage persons were purchasing alcoholic beverages at the Jones' licensed premises.
On December 16, 1988, at approximately 2:55 p.m., DABT Investigators, Steven Green and Ellie Doyle, entered Jones Grocery and Meats with an underage operative, Michelle Haynes Newman. Ms. Newman, whose birthdate is March 7, 1970, was eighteen years old at the time.
As instructed previously by Investigator Green, Ms. Newman took the money he gave her, went to the cooler and obtained a 6-pack of Miller draft beer. She proceeded to the checkout counter and paid for the beer.
At no time did the clerk who sold her the beer ask her age or request any identification.
Ms. Newman immediately gave the beer to one of the investigators who accompanied her out of the store. She had never been in the premises before and has not visited there since the December 16th occasion.
Investigator Green interviewed the clerk, Lisa K. Dahlhauser, and informed her that she had sold alcoholic beverages to an underage person. He later informed Max Jones of the sale and violation. Consistent with the policy of the DABT, no administrative complaint was filed on this first offense.
Lisa Dahlhauser had been working for Jones only one or two days. He had personally observed her checking identification during the day. She left her employment at Jones' grocery about four weeks after the incident.
On February 20, 1989, at approximately 4:30 p.m., Investigator Green; another DABT Investigator, Mark Douglas; and an underage operative, Kris Ann VanShaick, approached Jones Grocery and Meats. Ms. VanShaick, now married and known as Kris Copeland, was born on March 30, 1970, and was eighteen years old at the time.
The agents gave the operative their standard instructions: to use a correct driver's license; if asked, to present the license and to tell her correct age; and to receive, but not consume, the alcoholic beverage.
Ms. VanShaick entered the store with Investigator Douglas. She obtained a single can of Coors Light beer and took it to the counter. The clerk, Irene Bower, asked for identification and she produced her driver's license, showing her correct birthdate. The clerk examined the license, took the money and sold her the beer.
At the time of the December 16, 1988 sale, Max Jones was not near the counter and was unaware of the sale until he was informed by Investigator Green.
On the second occasion he was near the cashier when Ms. VanShaick obtained the beer from the cooler. He thought she looked young and told the clerk to check her identification. He was going toward the back room of the store when the purchase was actually made. He heard the clerk ask for the identification and saw the young woman present it.
The clerk was terminated at the end of the week.
Max Jones counsels new employees regarding checking identification cards. He does not have a formal training program and has not taken advantage of the training offered by the DABT, but he has conveyed to his employees that he does not tolerate sales to minors.
There is a card on the cash register with the date by which the customer must be born in order to purchase alcoholic beverages. Max Jones presumes that his employees can read and compute figures.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes.
The Division of Alcoholic Beverages and Tobacco is authorized to revoke or suspend the license, or to impose a fine, when the licensee or his agents, servants, or employees, violate a law of the state regarding the sale of alcoholic beverages. See Section 561.29(1) and (4), Florida Statutes.
Section 562.11(1)(a), Florida Statutes, prohibits the sale of alcoholic beverages to a person under 21 years of age.
Although the statutes facially imply strict liability, over thirty years of cases have held that the agency must show a lack of due diligence on the part of a beverage licensee before sanctions may be imposed. Cohen v. Schott, 48 So 2nd 154 (Fla. 1950); Trader Jon, Inc. v. State Beverage Department, 119 So 2nd 735 (Fla. 1st DCA 1960); Lash, Inc. v. State Department of Business Regulation, 411 So 2nd 276 (Fla. 3rd DCA 1982); Surf Attractions v. Dept. of Business Regulation, 480 So 2nd 1354 (Fla. 1st DCA 1985), reh. den. Jan. 20, 1986, review denied 492 So 2nd 1331 (1986).
Petitioner argues that Respondent's lack of a formal training program and failure to take advantage of the Division's free training evinced lack of due diligence. Petitioner concedes that some positive steps were taken by the licensee in the second incident, when Mr. Jones specifically instructed his clerk to check the customer's identification.
Until the first incident of unlawful sale Max Jones would not have been on notice that the precautionary measures he was taking were inadequate. In the second incident of a sale, he attempted to take an additional precaution
by instructing the clerk directly. It is clear that virtually no amount of due diligence would have prevented this sale. The clerk did not testify, and the error is unexplained. Under these circumstances, liability cannot be imputed to the licensee.
RECOMMENDATION
Based on the foregoing, it is hereby, RECOMMENDED
That a Final Order be entered dismissing the Notice to Show Cause.
DONE AND RECOMMENDED this 9th day of October, 1989, in Tallahassee, Leon County, 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 9th day of October, 1989.
COPIES FURNISHED:
Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Addison E. Walker, Esquire 4313 Neptune Road
St. Cloud, Florida 32769
Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1000
Joseph A. Sole General Counsel
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Leonard Ivey, Director
Division of Alcoholic Beverages and Tobacco
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Docket for Case No: 89-002725
Orders for Case No: 89-002725
| Issue Date |
Document |
Summary |
|
Nov. 06, 1989 |
Agency Final Order
|
|
|
Oct. 09, 1989 |
Recommended Order
|
Employee checked underage person's ID but still sold the beer. Licensee has exercised diligence and not liable for this violation.
|
