STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93-2229

) JIN I. JEON, d/b/a DIWAN FOOD STORE, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 18, 1993, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings. The following appearances were entered:

APPEARANCES

For Petitioner: Miguel Oxamendi, Esquire

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

For Respondent: Jin I. Jeon

7504 N. Florida Avenue Tampa, Florida 33604

STATEMENT OF THE ISSUES

The issue presented in this case is whether the Petitioner has established by a preponderance of the evidence that Respondent sold alcoholic beverages to a person under the age of 21, in violation of Section 562.11(1)(a), Florida Statutes, as alleged in the Notice To Show Cause issued October 8, 1992.

PRELIMINARY STATEMENT

On or about October 22, 1992, a Notice To Show Cause was issued in DABT Case No. TA-39-92-0226, alleging one count of sale of alcoholic beverages to a person under the age of 21. The case was referred to the Division of Administrative Hearings on or about April 20, 1993, and was given DOAH Case No. 93-2229. By Notice of Hearing issued on or about May 14, 1993, the case was scheduled for final hearing in Tampa, Florida.

At final hearing, the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (the Division, or DABT) called as witnesses two law enforcement officers and an investigative aide. The Division

also had three exhibits admitted in evidence. The Respondent did not personally testify but presented the testimony of a former employee, Min Sup Lee, who also served as an English language translator for the Respondent.

Neither party ordered the preparation of a transcript of the final hearing.

The parties were given ten days in which to file proposed recommended orders. Only the Division filed one, and the proposed findings of fact contained in the Division's proposed recommended order are accepted and incorporated to the extent not subordinate or unnecessary.

FINDINGS OF FACT

1. At all times relevant and material to this proceeding, the Respondent, Jin I. Jeon, (licensee), held license number 39-03637, series 2-APS, authorizing him to sell alcoholic beverages on the premises of the Diwan Food Store, located at 7504 N. Florida Avenue, Tampa, Hillsborough County, Florida (premises).

   
   

2. On or about September 16, 1992, Special Agent A. Murray, Special Agent

   K. Hamilton, Investigative Aide D. Snow and Intern M. Dolitsky went to Diwan Food Store to investigate complaints of alcoholic beverage sales to minors. Investigative Aide D. Snow's date of birth is November 11, 1973. She was 18 years of age on September 16, 1992.

   
   

3. In accordance with the intructions of the law enforcement officers, Investigative Aide Snow entered the premises and selected a one-quart bottle of Budweiser beer, an alcoholic beverage, from a cooler. The bottle of beer was sealed and clearly marked as an alcoholic beverage. She proceeded to the cash register, where the Respondent was waiting. Snow paid the Respondent, who rang up the sale on the register. The Respondent did not request to see Snow's identification, nor did he ask her whether she was at least 21 years of age.

   
   

4. The Respondent's defense was that he was not the person who sold Snow the beer. When he was confronted with the charges, he disclaimed any knowledge of them and blamed an employee, Min Sup Lee, whom he believed must have been the person involved in the sale. He immediately fired Lee because of the charges.

   
   

5. Lee testified that he was employed by the Respondent from March 1992 through January, 1993. Lee testified that he worked for Respondent six days a week, primarily at night, and that he was the person in charge of the cash register the majority of the time. He asserted that he probably worked the cash register on the night of the violation. However, he denied ever having seen either Special Agent Murray or Special Agent Hamilton, or Investigative Aide Snow, and he denied any knowledge of the incident. It seems clear that Lee was not the person who sold the beer to the Investigative Aide Snow.

   
   

6. Communication problems (the Respondent's English language limitations) may be at the root of the Respondent's inability to understand and to carry out his responsibilities as a vendor under the Beverage Law. Later on the evening of the sale in question, Special Agent Murray returned to the store to talk to the Respondent about the violation but she was not confident that he understood anything she was saying. It is possible that, due to the Respondent's lack of facility with the English language, he did not understand that Murray was charging him with illegal sale of alcoholic beverages to a minor and that, when, some time later, the Respondent came understand the nature of the charge against him, he assumed that his employee must have been responsible.

7. On the other hand, it is possible that the Respondent knows full well his responsibilities under the Beverage Law, and knows full well that he failed to meet those responsibilities on September 16, 1992, but that he knowingly and unfairly tried to use his employee to avoid his own responsibity.

   
   

8. In any event, it is found that it was the Respondent, not Lee, who sold the beer to Snow and that, in all likelihood, Lee either was not working on September 16, 1992, or was occupied elsewhere with other responsibilities when Snow and Murray were in the store.

   
   

9. The Division's standard penalty for the violation alleged in the Notice to Show Cause is a twenty-day license suspension and a thousand dollar ($1,000.00) civil penalty. This standard penalty has been noticed as proposed Rule 7A-2.022, Penalty Guidelines, pending public workshop and approval.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 561.29, Fla. Stat. (1991), contains the following relevant provisions:

    
    

    1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:

       1. Violation by the licensee or his or its agents, officers, servants or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or . . . permitting another on the licensed premises to violate any of the laws of this state or of the United States. . ..

       2. Violation by the licensee . . . of any laws of this state or any state or territory of the United States.

          * * *

          (3) The division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, or any rule issued pursuant thereto, not to exceed

          $1,000 for violations arising out of a single transaction. If the licensee fails to pay the civil penalty, his license shall be suspended for such period of time as the division may specify.

          
          

11. Section 562.11(1)(a), Fla. Stat. (1991), makes it unlawful 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.

    
    

12. Section 562.11(1)(b), Fla. Stat. (1991), provides in pertinent part that it is a complete defense to a violation of Section 562.11(1), Florida Statutes, that the underage person was of legal age or that "the appearance of the person was such that an ordinary prudent person would believe him to be of legal age to purchase or consume the alcoholic beverage and if the licensee carefully checked" one of the forms of identification listed in the statute.

    Section 562.11(1)(b), Fla. Stat. (1991). (Emphasis added.) The Respondent did not ask to see any of Investigative Aide Snow's identification showing proof of age, or even ask her what her age was.

    
    

13. The facts evidenced at the formal hearing demonstrated by clear and convincing evidence a violation Section 562.11(1)(a), Florida Statutes, as alleged in the Notice to Show Cause.

    
    

14. Respondent's sole defense is that, if any sale of alcoholic beverages to a minor occurred, it was done by Mr. Lee, Respondent's employee at the time of the violation, and not by himself. The facts found do not support this defense.

    
    

15. There is some question whether the Respondent fully understood his responsibilities as a vendor under the Beverage Law and whether his English language limitations may have contributed to his failure to carry them out. But those factors do not excuse the Respondent's violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: (1) finding the Respondent guilty as charged in the Notice to Show Cause; (2) suspending the Respondent's alcoholic beverage license for twenty days; and (3) ordering the Respondent to pay a $1,000 civil penalty.

RECOMMENDED this 27th day of July, 1993, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 27th day of July, 1993.

COPIES FURNISHED:

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

Jin I. Jeon

7504 N. Florida Avenue Tampa, Florida 33604

John Harrison, Acting Director Division of Alcoholic Beverages

and Tobacco Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Donald D. Conn, Esquire General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee Florida 32399-1000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 93-002229

Orders for Case No: 93-002229