STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NOS. 89-6621
) 89-6622
NEGRIL COVE, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled cases was held on March 23, 1990, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Thomas A. Klein
Assistant General Counsel Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1000
For Respondent: Attorney Jerry S. Luxenburg
1214 East Robinson Street Orlando, Florida 32801
STATEMENT OF THE ISSUES
The issues in these cases are whether Respondent is guilty of serving alcoholic beverages to minors and, if so, what penalty is appropriate.
PRELIMINARY STATEMENT
By Notice to Show Cause filed July 14, 1989, Petitioner alleged that Respondent sold alcoholic beverages to four underage persons on June 10, 1989, in violation of Section 562.11(1)(a), Florida Statutes. By Notice to Show Cause filed August 16, 1989, Petitioner alleged that Respondent sold, gave, served, or permitted to be served alcoholic beverages to two underage persons on August 5, 1989, in violation of Section 562.11 Florida Statutes.
By separate letters dated October 12, 1989, Respondent requested a formal hearing on the charges.
At the hearing, Respondent requested a continuance. The request was denied. Petitioner called two witnesses and offered into evidence six exhibits. Respondent called no witnesses and offered into evidence one exhibit.
Petitioner's Exhibits One through Four consisted of a copy of the drivers' licenses and a photograph for each of four of the underage patrons. Respondent objected to these exhibits on the grounds of hearsay and best evidence. These objections are sustained as to the drivers' licenses, but not the photographs. However, Petitioner withdrew these exhibits.
Pursuant to leave, Petitioner filed on April 9, 1990, the deposition of Mary Ann Carmody. Respondent's objection to the use of the deposition of Staci Bailey was sustained.
No transcript was filed. Petitioner filed a proposed recommended order.
All proposed findings are adopted.
FINDINGS OF FACT
Respondent holds license number 58-01997, series 2-COP, for the retail sale of alcoholic beverages. The licensed premises were located at 536 West Church Street, Orlando, Florida.
Respondent abandoned the premises at the end of August, 1989. The bar owned and operated by Respondent is no longer in operation, and the license is no longer active.
On at least three occasions prior to the incident in question, one or more representatives of Petitioner had warned Lester Thomas, the sole shareholder and officer of Respondent, that he or his company's employees were serving alcoholic beverages to underage persons. On one of these occasions, Mr. Thomas complained, "Every time you come around here, there are problems. You catch me."
At about 11:15 p.m. on August 5, 1989, two representatives of Petitioner entered the Negril Cove bar and observed Mary Ann Carmody, age 16 years, consuming an alcoholic beverage that a companion had purchased from Respondent. At all material times on that evening, Mr. Thomas himself was tending the bar at Negril Cove. At no time was Ms. Carmody asked for any identification. Under the circumstances, Mr. Thomas permitted Ms. Carmody to consume the alcoholic beverage on the premises.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
Petitioner is responsible for disciplining the licenses of persons authorized to sell alcoholic beverages. Section 561.29, Florida Statutes.
Petitioner may revoke or suspend the license of anyone authorized to sell alcoholic beverages for any violation, by the licensee or its employees, on the licensed premises, of any state law. Section 561.29(1)(a), Florida Statutes.
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 562.11(1)(a), Florida Statutes.
The prior warnings, young age of the underage patron, and attitude of Respondent's owner, who failed to appear at the hearing, warrant the revocation of the license.
Based on the foregoing, it is hereby recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking the license of Respondent.
RECOMMENDED this 23rd day of April, 1990, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1990.
COPIES FURNISHED:
Leonard Ivey, Director
Division of Alcoholic Beverages and Tobacco Department of Business Regulation
The Johns Building
725 South Bronough Street Tallahassee, FL 32399-1000
Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, FL 32399-1000
Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, FL 32399-1000
Thomas A. Klein
Assistant General Counsel Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, FL 32399-1000
Jerry S. Luxenburg
1214 East Robinson Street Orlando, FL 32801
Issue Date | Proceedings |
---|---|
Apr. 23, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
Issue Date | Document | Summary |
---|---|---|
May 29, 1990 | Agency Final Order | |
Apr. 23, 1990 | Recommended Order | Liquor license revoked after repeated sales to underaged persons following warnings. |