STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMAD F. ABDELMESEH d/b/a )

EMAD'S TEXACO, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8321F

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

)

Respondent. )

)

FINAL ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on April 29, 1992, and November 17, 1992, in Tampa, Florida.

APPEARANCES

For Petitioner: Robert W. Merkle, Esquire

Dawn D. Weiger, Esquire Merkle & Magri, P. A.

7650 West Courtney Campbell Causeway Tampa, Florida 33607

For Respondent: Robin L. Suarez,

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

STATEMENT OF THE ISSUE

Whether Petitioner, Emad F. Abdelmeseh, d/b/a Emad's Texaco is entitled to recover attorney's fees and costs in defending the charges made against him in the case of Department of Business Regulation, Division of Alcoholic Beverages and Tobacco vs. Emad F. Abdelmeseh, d/b/a Emad's Texaco, Division of Administrative Hearings, Case No. 91-1618, under the provisions of Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code (formerly 22I-6.035, Florida Administrative Code) and, if so, the amount which Petitioner is entitled to recover.

PRELIMINARY STATEMENT

On October 30, 1991, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco filed an Order of Dismissal dismissing a Notice To Show Cause, issued against Emad Abdelmeseh d/b/a Emad's Texaco (Emad's) on August 16, 1990, in which Petitioner was charged with violating Section

562.11(1)(a), Florida Statutes. Following the Order of Dismissal, the Petitioner filed a Prevailing Party's Application For Attorney's Fees and Costs (Petition) pursuant to Rule 22I-6.035, Florida Administrative Code (now Rule

60Q-2.035, Florida Administrative Code). The Division timely file a response to the Petition, raising the defense that the filing of the Notice To Show Cause was substantially justified. The Petitioner timely requested an evidentiary hearing on its Petition. A formal hearing was held on April 29, 1992. On November 17, 1992, the continuation of the April 29, 1992, hearing was held, with all evidentiary matters being concluded on that date. The Petitioner filed A Prevailing Party's Amended Application For Attorney's Fees and Costs (Amended Petition) which was accepted without objection from the Respondent.

At the hearing on April 29, 1992, the Petitioner presented the testimony of Emad Abdelmeseh, Robert W. Merkle and Theodore R. Seman. Petitioner's exhibits

1 through 11, and 13 through 19 were received as evidence in this case. Petitioner's exhibits 17 and 18 are the depositions of Lonnie Wayne Roddenberry and Carlyle Dennis Phillips respectively, submitted in lieu of their live testimony at the hearing. At the continuation of the hearing on November 17, 1992, the Division presented the testimony of Lt. Robert Bishop, Agent John Blair and J. Karen Raschke, f/k/a J. Karen Smalley. The Division's exhibits 1 through 4 were received as evidence in this case.

The transcript of the April 29, 1992, hearing was filed with the Division of Administrative Hearings on November 17, 1992. The transcript of the November 17, 1992, hearing was filed with the Division of Administrative Hearings on December 17, 1992. The Petitioner filed an unopposed motion for extension of time in which to file Proposed Recommended Orders. The motion was granted extending the time until January 19, 1993, for filing Proposed Recommended Orders with the understanding that the time constraint for entering a Recommended Order imposed under Rule 28-5.402, Florida Administrative Code, was waived in accordance with Rule 60Q-2.031(2), Florida Administrative Code. The parties filed their Proposed Recommended Orders within the extended time frame. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, the Petitioner was licensed by the Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, to sell alcoholic beverages from the premises of Emad's Texaco, having been issued license number 63-2090, 2APS.

   
   

2. The Petitioner timely filed the petition in the instant case in accordance with Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code (now Rule 60Q-2.035, Florida Administrative Code). The Respondent timely filed a written response alleging that Respondent was substantially justified in issuing the Notice To Show. With its response the Respondent filed an Affidavit challenging the amount of attorney's fees and cost requested by the Petitioner. However, this Affidavit was subsequently withdrawn and the Respondent made no further effort to contest the attorney's fees and costs incurred by the Petitioner.

3. Emad Abdelmeseh is domiciled in the state of Florida and is the sole proprietor of an unincorporated business known as Emad's Texaco, located at 101 East Memorial Boulevard, Lakeland, Florida.

   
   

4. Emad's Texaco employs less than 25 employees, and the Petitioner's net worth is less than Two Million Dollars ($2,000,000.00).

   
   

5. Petitioner is a "small business party" as that term is defined under Section 57.111(3)(d), Florida Statutes.

   
   

6. On July 11, 1990, agents for the Division of Alcoholic Beverages and Tobacco (Division), John Blair and Brad Nelson, participated in a joint investigation with the City of Lakeland Police Department (CLPD) in the illegal selling of alcoholic beverages to minors. Throughout the course of this investigation the Division's agents were on official duty.

   
   

7. Agents Blair and Nelson met with the CLPD detectives and Smalley prior to the investigation and remained with the investigation until its conclusion, including the investigation of Emad's Texaco.

   
   

8. The Division, through its agents Blair and Nelson, fully participated in the investigation conducted on July 11, 1990, including Emad's Texaco, and did not simply rely on the CLPD's independent investigation to institute action against Emad's Texaco.

   
   

9. This case was not what the Division considers an "adopted case" - one handled entirely by another law enforcement agency which request the Division to prosecute. Therefore, the investigation, as far as agents Blair and Nelson were concerned, should have been conducted in accordance with the Division's Policy and Procedure.

   
   

10. The investigation of July 11, 1990, involved the use of an underage operative by the name of J. Karen Smalley n/k/a J. Karen Raschke (Smalley) with previous experience working with the Division, and documented as an underage operative by the Division. Prior to July 11, 1990, Smalley had also been used as an underage operative by the CLPD.

    
    

11. During the July 11, 1990 investigation, Smalley was being paid by, and was under the direction of, the CLPD.

    
    

12. Before leaving the Police Department to assist in the investigation on July 11, 1990, Smalley was instructed by both Detective Phillips and Agent Blair, on separate occasions, concerning her duties and responsibilities in regard to the investigation.

    
    

13. During the course of the investigation on July 11, 1990, Smalley was sent on to the premises of Emad's Texaco for purposes of attempting to purchase an alcoholic beverage.

    
    

14. Smalley went to the cooler area in Emad's Texaco's licensed premises and took a six-pack of beer to the check-out counter. Amad Abdelmeseh asked to see Smalley's identification.

    
    

15. Smalley either handed her driver's license to Amad Abdelmeseh or laid her driver's license on the check-out counter.

16. Emad Abdelmeseh looked at Smalley's driver's licenses which showed her date of birth to be July 24, 1970, just a few days short of being 20 years of age.

    
    

17. Although the photograph of Smalley on the driver's license was taken in 1986, she still maintained her youthful appearance on July 11, 1990.

    
    

18. On July 11, 1990, Smalley's hair was blonde, having dyed her hair which was brown when the driver's license was issued. However, Smalley did not dress-up or wear make-up on July 11, 1990, so as to appear older than her age of almost 20 years.

    
    

19. There was insufficient evidence to establish facts to show that at the time Smalley was attempting to purchase the six-pack of beer on July 11, 1990, that she: (a) told Emad Abdelmeseh that she was 21 years of age or older or; (b) produced a driver's license, other than the driver's license referred to above, that listed a date of birth which would have indicated an age of 21 years or older or; (c) in any fashion attempted to misrepresent her age as being 21 years or older

    
    

20. After looking at Smalley's driver's license, Emad Abdelmeseh sold Smalley the six-pack of beer.

    
    

21. After making the purchase of beer, Smalley exited Emad's Texaco and advised Detective Phillips that she had made a purchase of beer from the person inside the store.

    
    

22. Detective Phillips advised Detective Tim Snyder of the purchase. Detective Snyder then went inside Emad's Texaco and identified Emad Abdelmeseh as the person who had sold the beer to Smalley.

    
    

23. On August 8, 1990, Agent Blair served a Notice of Intent To File Administrative Charges against Emad Abdelmeseh's alcoholic beverage license as a result of his sale of alcoholic beverage to Smalley.

    
    

24. On August 8, 1990, Abdelmeseh complained to Agent Blair about the lapse of time between Smalley making the purchase of beer on July 11, 1990 and the serving of the Notice of Intent on August 8, 1990. Emad Abdelmeseh did not complain to Agent Blair on August 8, 1990 that Smalley had misrepresented her age to him when she made the purchase of beer on July 11, 1990. In fact, Emad Abdelmeseh did not advise Agent Blair, or anyone else with the Division, of his allegation that Smalley had misrepresented her age to him on July 11, 1990, when she purchased the beer from him until after the Notice To Show Cause was issued by Lt. Robert Bishop.

    
    

25. After the Notice of Intent was served on Emad Abdelmeseh, Agent Blair prepared a draft Notice To Show Cause and a synopsis for review by Lt. Robert Bishop, District Four Supervisor. Lt. Bishop has been a supervisor with the Division for 23 1/2 years.

    
    

26. On August 16, 1990, Lt. Robert Bishop, acting with authority from the Division Director, issued a Notice To Show Cause which was served against the Petitioner's alcoholic beverage license on August 17, 1990 alleging that Petitioner had sold alcoholic beverages from the premises of Emad's Texaco to a person under the age of 21 years contrary to Section 562.11(1)(a), Florida Statutes. The issuance of the Notice To Show Cause was the initiation of the

    case against the Petitioner and the Division was not a nominal party in this case.

    
    

27. In issuing the Notice To Show Cause, Lt. Bishop relied solely on the information in the Notice To Show Cause and the synopsis prepared by Agent Blair without any further investigation or discussion with Agent Blair.

    
    

28. The Division had used Smalley as an underage operative on several occasions prior to the investigation on July 11, 1990, and had found her to be a credible and reliable underage operative. Therefore, the Division reasonably relied on Smalley in the issuance to the Notice To Show Cause to Emad Abdelmeseh, notwithstanding that on July 11, 1990, Smalley was being paid by, and was under the direction of, the CLPD.

    
    

29. Agent Blair has been an agent with the Division for 16 years and his reports, according to Lt. Bishop, are impeccable. Therefore, Lt. Bishop had no problem in issuing the Notice To Show Cause to Emad Abdelmeseh based solely on Agents Blair's report, notwithstanding that Agent Blair's report did not specifically indicate that he had strictly adhered to the Division's Policy and Procedure.

    
    

30. Although the record reflects that Agent Blair did not strictly adhere to the Division's Policy and Procedure on July 11, 1990, there is competent substantial evidence to establish facts to show that the CLPD detectives basically filled in the gaps, so the speak.

    
    

31. It is clear from the testimony of Lt. Bishop that even if had he made further inquiry of Agent Blair concerning Agent's Blair's adherence to policy and procedure, it would not have changed Lt. Bishop's mind about issuing the Notice To Show Cause because there was a reasonable basis in law and fact to issue the Notice To Show Cause - there was credible evidence that Emad Abdelmeseh had sold an alcoholic beverage to an underage operative in violation of the Florida Statutes.

    
    

32. Along with the Notice To Show Cause served on Emad Abdelmeseh there was a Notice Of Informal Conference which provided for an Informal Conference between the Division and Emad Abdelmeseh on August 28, 1990 at 3:00 p.m. It was at this informal conference on August 28, 1990, that Emad Abdelmeseh first advised anyone from the Division of his allegation that Smalley had misrepresented her age to him on July 11, 1990.

    
    

33. The Informal Conference did not resolve the issues and a Request For Formal Hearing signed by Emad Abdelmeseh and dated September 4, 1990 was filed with the Division. In the Request For Hearing Emad Abdelmeseh sets out what he considers to be the disputed issues of fact. In this request there is an allegation that the underage operative was misleading in that when asked if she was 21 years of age she continued to purchase the beer as if she was an adult. There was no mention of Smalley presenting her driver's license

    
    

34. By letter dated February 12, 1991, Emad Abdelmeseh again sets out what he considers to be the facts. Among other things, he alleges that Smalley claimed that she was over the age of 21 years and that she did present her driver's license for identification.

    
    

35. On March 11, 1991, the matter was referred to the Division of Administrative Hearings for conduct of a formal hearing.

36. The Division prosecuted this action in the case of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco vs. Emad Abdelmeseh, d/b/a Emad's Texaco, Division of Administrative Hearings Case No. 91-1618.

    
    

37. On October 30, 1991 the Division exercised its administrative discretion and entered an Order of Dismissal dismissing the charges against Emad Abdelmeseh set forth in the Notice To Show Cause issued on August 16, 1990. The reasons behind the Division's dismissal of the case were not presented at the hearing on April 29. 1992 or November 17, 1992.

    
    

38. The Petitioner is the prevailing small business party as that term is defined in Section 57.111(3)(c), Florida Statutes.

    
    

39. The hourly rate and the total number of hours expended by Petitioner's attorney, and others under his control, and the costs incurred in the defense of the Petitioner as set out in Amended Affidavit and attached as Exhibit B to the Petitioner's Amended Petition in the amount of $11,429.77 are reasonable, and should be the amount awarded in the event Petitioner is successful in presenting his Amended Petition.

    
    

40. There is competent, substantial evidence to establish facts to show that at the time the Notice To Show Cause was issued on August 16, 1990 the Division had made a meaningful inquiry into the matter and there was a reasonable basis in fact and law to initiate the action.

    
    

41. No special circumstances exist which would make the award unjust.

    
    

    CONCLUSIONS OF LAW

    
    

42. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding pursuant to Sections

    57.111 and 120.57(1), Florida Statutes.

    
    

43. This case arises under the Florida Equal Access To Justice Act, Section 57.111, Florida Statutes. Section 57.111(4)(a), Florida Statutes, provides as follows:

    
    

    (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to Chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust. (Emphasis supplied)

    
    

44. The burden of proof is on the Petitioner to prove that he was the prevailing small business party in a proceeding initiated by a state agency that was not a nominal party. Once the Petitioner meets that burden, the burden then shifts to the Division to establish that its actions were substantially justified or that circumstances exist which would make the award unjust.

    Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (1 DCA Fla. 1987). The Petitioner has met his burden of showing that he was a prevailing small business party in a proceeding initiated by a state agency that was not a nominal party. Since there were no circumstances that exist

    which would make the award unjust, the only issue left to be determined was whether the Division was substantially justified in initiating this action.

    
    

45. A proceeding is substantially justified if it had a reasonable basis in law and fact at the time the case was initiated by the state agency. Section 57.111(3)(e), Florida Statutes. In this case, Lt. Bishop issued the Notice To Show Cause based solely on the draft of the Notice To Show Cause and synopsis of the investigation prepared and presented to him by Agent Blair without any further investigation. Although the record reflects that the Division's Policy and Procedure were not followed to the letter, the record is clear that Emad Abdelmeseh had sold an alcoholic beverage to a minor in violation of Florida Statutes. Therefore, Lt. Bishop's reliance solely on Agent Blair's report to issue the Notice To Show Cause was reasonable and appropriate. See, Department of Professional Regulation v. Toledo Realty, Inc., 549 So.2d 715 (1 DCA Fla. 1989).

    
    

46. To support a defense that its actions were substantially justified it is sufficient that an agency show that a meaningful inquiry was conducted and that the agency had before it evidence which would constitute prima facie proof that a violation occurred. Gentele v. Department of Professional Regulation, 9 FALR 311 (DOAH 1985), aff'd. 513 So.2d 672 (1 DCA Fla. 1987). The Division has sustain its burden to show that it was substantially justified in issuing the Notice To Show Cause on August 16, 1990. It is, therefore,

ORDERED that the Petitioner's Prevailing Party's Amended Application For Attorney's Fees and Costs be denied.

DONE and ORDERED this 9th day of March, 1993, at Tallahassee, Florida.

WILLIAM R. CAVE

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 March, 1993.

APPENDIX TO FINAL ORDER, CASE NO. 91-8321F

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner's Proposed Findings of Fact.

1. The following proposed findings of fact are adopted in substance as modified in the Final Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(3,4); 2(1); 3(6); 4(7,12); 5(13,21- 22); 7(8-10); 10(36); 12(2)and; 13(39).

2. Proposed findings of fact 6, 8 and 9 may have been relevant had this case been prosecuted to its fullest. However, successful prosecution of this case is not necessary in order to show that the agency was "substantially justified" in initiating this case by issuing the Notice To Show Cause since the Division had credible evidence at that time to show that Emad Abdelmeseh had sold an alcoholic beverage to a minor in violation of Florida Statutes.

   
   

3. It is true that Respondent continued to prosecute this case and that Petitioner retained counsel who conducted discovery in both this case and the criminal case but that is not relevant to this case. However, the balance of the first sentence of proposed finding of fact 11 is not supported by competent, substantial evidence in the record and is thereby rejected. The second sentence of proposed finding of fact 11 is adopted in Finding of Fact 37.

Respondent's Proposed Findings of Fact.

1. The following proposed findings of fact are adopted in substance as modified in the Final Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s)) of fact: 1(1,3); 2-3(6); 4(7); 5(14); 6(15); 7(20); 8(19); 10(17-18); 11(19); 12(7);13(7,28); 14(23); 15(14); 16(25); 17- 18(26); 19(25); 20-21(29); 26-27(32); 28(31); 29(19,24,32); 33(28)and; 34(37,40).

   
   

2. Proposed finding of fact 9 is adopted in Finding of Fact 21 with the exception that Smalley reported to Detective Phillips on exiting the store rather than Agent Blair.

   
   

3. The matter concerning the Division's Policy and Procedure in proposed finding of fact 22 are not supported by competent, substantial evidence in the record and are thereby rejected. The Division's Policy and Procedure were neither introduced as evidence nor was it requested that they be Offically Recognized.

   
   

4. That portion of proposed finding of fact 23 concerning what each individual section in the Division's Policy and Procedure purports to relate to is rejected for the same reason set out above in paragraph 3. The other matters addressed in this proposed finding of fact have been addressed in other Findings of Fact.

   
   

5. Proposed finding of fact 24 is rejected for the same reason set out above in paragraph 3.

   
   

6. Proposed finding of fact 25 is adopted in Finding of Fact 26 exception of the date of service of the Notice To Show Cause on Emad Abdelmeseh which was August 17, 1990 rather than August 16, 1990. See bottom of Notice To Show Cause for date of service.

   
   

7. Proposed finding of fact 30 is rejected as being a restatement of Emad Abdelmeseh's testimony for the purpose of argument in proposed finding of fact

   31 which is rejected as argument.

   
   

8. There is no proposed finding of fact numbered 32.

COPIES FURNISHED:

Robert W. Merkle, Esquire Dawn D. Weiger, Esquire Merkle & Magri, P. A.

7650 W. Courtney Campbell Causeway Tampa, Florida 33607

Robin L. Suarez, Esquire Assistant General Counsel Department of Business Regulation

Division of Alcoholic Beverages and Tobacco 725 S. Bronough Street

Tallahassee, Florida 32399-1007

Donald D. Conn General Counsel

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

Janet E. Ferris, Secretary Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Richard W. Scully, Director

Division of Alcoholic Beverages and Tobacco 725 South Bronough Street

Tallahassee, Florida 32399-1007

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-008321F

Orders for Case No: 91-008321F