STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 91-1575

) DORSA INC. and MICHAEL DORSEY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above styled case on May 30, 1991, at Tampa, Florida. This hearing was scheduled to commence at 1:00 p.m. on May 30, 1991. After waiting a reasonable time for Respondent to appear, the hearing proceeded without Respondent present.

APPEARANCES

For Petitioner: Harry Hooper, Esquire

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

For Respondent: Not present or represented

STATEMENT OF THE ISSUES

Whether Respondent violated the Beverage Laws as alleged in Notice to Show cause dated January 3, 1991.

PRELIMINARY STATEMENT

By Motion to Show Cause dated January 3, 1991, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to discipline the 2-COP Beverage License of Dorsa Inc., trading as The Establishment. As grounds therefor it is alleged Respondent failed to maintain control of said business by allowing James John Redman III to become an officer of the corporation without filing notice of such change with Petitioner; and on October 31, 1990 and November 1, 1990 sold alcoholic beverages to numerous underage patrons and allowed underage patrons to possess alcoholic beverages on the premises in violation of Sections 562.11 and 562.111, Florida Statutes.

At the hearing the license file of Dorsa Inc. was admitted into evidence as Exhibit 1, and thereafter Petitioner called 10 witnesses. No transcript was provided and the Petitioner waived the right to submit a proposed recommended order. Having considered the evidence presented, I submit the following.

FINDINGS OF FACT

1. At all times relevant hereto Dorsa Inc., trading as The Establishment, held 2-COP license No. 61-00066 to sell alcoholic beverages at 311 Pennsylvania Avenue, San Antonio, Florida.

   
   

2. On October 31, 1990 several Beverage agents entered The Establishment where a Halloween party was in progress among the St. Leo College students.

   
   

3. Upon entering the bar an employee at the door checked identification and stamped the back of the entering patron's hand. An underage operator with DABT entered with another agent and the stamp placed on the back of the minor's hand could not be distinguished from the stamp on the hand of the adult agent.

   
   

4. The minor went to the bar and purchased beer on two occasions without further questioning or identification by the bartender.

   
   

5. Bartenders had been directed to sell beer to those with stamps or wrist bands as they had been cleared by the bouncer at the door as age-qualified to purchase alcoholic beverages.

   
   

6. During the evening of October 31-November 1, 1990 several minors were arrested for possessing alcoholic beverages (beer) in bottles with Annheuser- Busch labels and several others had purchased beer from the bartender. The ages of these minors were verified by driver's licenses possessed by these patrons.

   
   

7. One of the DABT agents, Sgt. Timothy Allen, had a discussion with James John Redman III who appeared to be in charge of The Establishment. Allen was told by Redman that Redman was the new owner of The Establishment and the papers verifying this ownership were in an attorney's office in Miami.

   
   

8. No application to change ownership has been presented at the district office of the Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, these proceedings.

   
   

10. Section 561.17, Florida Statutes, provides that any person, before engaging in the business of dealing in alcoholic beverages, shall file with the district supervisor of the district in which the business is located a sworn application on forms provided by the district, which forms are intended to insure the applicant is qualified to hold a beverage license. No such form was filed on behalf of Redman.

    
    

11. Here the only evidence presented that Redman was the owner of The Establishment (or was an officer of the corporation) is the hearsay statement attributed to Redman. Redman is not a party in these proceedings and his self- implicating statement does not fit the hearsay exception to the admissibility of admissions against interest of a party. This hearsay testimony is uncorroborated and cannot form the basis for a factual finding. McPherson v. Sch. Bd. of Monroe Co., 505 So.2d 682 (Fla. 3d DCA 1987).

    
    

12. With respect to the charges of selling alcoholic beverages to minors and allowing minors to possess alcoholic beverages on the premises, which is

    prohibited by Sections 562.11 and 562.111, a substantial quantity of reliable and unrebutted evidence was presented to support these charges, regardless of the standard of proof applicable to these proceedings.

    
    

13. In a beverage disciplinary license proceeding the DABT has the burden to prove the allegations by a preponderance of the evidence. These cases are distinguished from professional license disciplinary proceedings where the standard of proof is clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1st DCA 1987).

    
    

14. The burden of proof in any proceeding is a due process issue. Addington v. Texas, 441 U.S. 426, 99 S.Ct. 1804 (1979). Addington involved the standard of proof required to commit an individual involuntarily for an indefinite period in a state mental hospital. The court stated at p. 1808:

    
    

    The function of standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks it should have in the correctness of factual conclusions for a particular type of adjudication.' In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1076, 25 L.Ed. 2d 368

    (1970) (J. Harlan concurring). The standards serve to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.

    
    

    Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimum concern with the outcome of such private suits, plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.

    
    

    In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, supra.

    The intermediate standard, which usually employs some combination of the words 'clear,' 'cogent,' 'unequivocal,' and 'convincing,' is less commonly used, but nonetheless is 'no stranger to the civil law.' Woodby v. INS, 385 U.S. 276, 285,

    87 S.Ct. 483, 488, 17 L.Ed. 362 (1966). See

    also, McCormick, Evidence s. 320 (1954); 9 J. Wigmore, Evidence s. 2498 (3rd ed. 1940).

    One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having reputation tarnished erroneously by increasing the plaintiff's burden of proof.

    Similarly, this Court has used the 'clear, unequivocal and convincing' standard of proof to protect particularly important individual interests in various civil cases. See e.g.

    Woodby v. INS, supra, at 285, 87 S.Ct. at 487 (deportation); Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 149, 5 L.Ed. 2d

    120 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159 63 S.Ct. 1333, 1336, 1357, 87 L.Ed. 1796 (1943) (denaturalization).

    
    

15. After noting that the function of the legal process is to minimize the risk of erroneous decisions; that commitment for any purpose constitutes a significant deprivation that requires due process protection; that the state has a legitimate interest in providing care for its citizens unable because of emotional disorders to care for themselves; and that the state also has the authority under its police powers to protect the community from dangerous tendencies of the mentally ill, the court in Addington v. Texas, supra, concluded the middle ground between preponderance of the evidence and beyond a reasonable doubt, viz "clear and convincing" evidence was required to meet the due process guarantee. Similarly, in Williams v. Williams, 424 So.2d 159 (Fla. 1st DCA 1983) the court held the standard of proof in proceedings for noncriminal involuntary confinement is clear and convincing evidence.

    
    

16. In Florida the legislature has determined that the beverage industry represents a substantial risk of harm to the population of Florida and has regulated the beverage industry under the State's police powers. In the beverage industry the primary concern is to protect the community from people and practices representing a risk of harm to the community. The issuance of a beverage license is a privilege the granting of which requires the applicant to demonstrate he meets all of the requirements for issuance. Punitive consequences do not result from the revocation of an alcoholic beverage license similar to the consequences resulting from involuntary confinement, denaturalization, or exportation. Accordingly, the risk of error to the licensee is certainly less in an alcoholic beverage license proceedings than it is to someone facing involuntary confinement or loss of a professional license. In fact, the risk of error is certainly less in a beverage license revocation proceeding than in the dismissal of a teacher for cause in the county school

    system. In Dileo v. Sch. Bd. of Dade County, 15 FLW D 2781 (Fla. 3d DCA 1990) the court held the correct standard to apply in school teacher dismissal cases is the preponderance of the evidence standard. Accordingly, the correct standard of proof in alcoholic beverage license proceedings is preponderance of the evidence.

    
    

17. From the foregoing it is concluded that Petitioner has failed to prove Respondent violated Section 561.117, Florida Statutes, as alleged but has proved that Respondent violated Sections 562.11 and 562.111, Florida Statutes.

RECOMMENDATION

It is recommended that the 2-COP alcoholic beverage license No. 61-00066 issued to Dorsa Inc., trading as The Establishment, be revoked.

RECOMMENDED this 7th day of June, 1991, in Tallahassee, Florida.

K. N. AYERS 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 7th day

of June, 1991.

COPIES FURNISHED:

Harry Hooper, Esquire

Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007

Lance Joseph, Esquire

9990 S.W. 77 Avenue, Suite 210

Miami, FL 33156

Richard W. Scully, Director Division of Alcoholic Beverages

and Tobacco

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Don D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-001575

Orders for Case No: 91-001575