STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF BUSINESS ) AND PROFESSIONAL REGULATION, ) DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0536

)

AIMEN MAHMOUD ABUSALAMEH, )

d/b/a PIC A PAC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 26, 1994, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings. 1/

APPEARANCES

For Petitioner: Miguel Oxamendi, Esquire

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Peter N. Hanna, Esquire

500 Southeast 12th Street

Fort Lauderdale, Florida 33316 STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the Notice to Show Cause?

   
   

2. If so, what penalty should be imposed against him?

   
   

   PRELIMINARY STATEMENT

   
   

   On July 17, 1992, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (now the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, and hereinafter referred to as the "Department") issued a Notice to Show Cause alleging the following:

   
   

   1. That on or about June 12, 1992, you, Aimen Mahmoud Abusalameh, doing business as

      Pic A Pac, your agent, servant or employee(s), to wit: Aimen Mahmoud Abusalameh, Licensee, did unlawfully sell, serve or give an alcoholic beverage to a person under twenty-one years of age, contrary to F.S.S. 562.11, within F.S.S.

      561.29(1)(a).

   2. That on or about June 12, 1992, you, Aimen Mahmoud Abusalameh, doing business as Pic A Pac, your agent, servant or employee(s), to wit: Aimen Mahmoud Abusalameh, Licensee, did possess on your licensed premises fireworks contrary to

F.S.S. 791, within F.S.S. 561.29(1)(a).

The Notice to Show Cause advised Respondent of his right to request "an administrative proceeding and hearing on these cha[r]ges" and that if his written request was not timely filed a final order would be entered which "could require the suspension or revocation of [his] alcoholic beverage license or impose a civil penalty."

In November of 1992, the Department, having determined that Respondent had waived his right to such "an administrative proceeding and hearing," issued an order summarily revoking Respondent's alcoholic beverage license. Respondent appealed to the Fourth District Court of Appeal, which, on December 17, 1993, issued its mandate reversing the Department's final order and remanding the case to the Department to give Respondent the opportunity to have "an administrative proceeding and hearing" on the charges set forth in the Notice to Show Cause.

On January 28, 1994, the Department referred the matter to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a hearing officer to conduct a formal hearing on these charges.

The hearing was held on May 26, 1994. At the hearing, the Department presented the testimony of Albert Heinermann, a special agent with the Department, and John Raymond, the "person under twenty-one years of age" referenced in the Notice to Show Cause to whom Respondent allegedly sold alcoholic beverages on June 12, 1992. In addition to the testimony of these witnesses, the Department offered and the Hearing Officer received into evidence four exhibits, one of which was a photograph of Raymond taken on June 12, 1992, shortly after Raymond had left Respondent's store. Respondent testified on his behalf at the hearing. He also presented the testimony of his cousin, Jihad Mahmud, who worked at Respondent's store on the evening of June 12, 1992. Respondent offered no other evidence.

Following the conclusion of the evidentiary portion of the hearing, the Hearing Officer advised the parties of their right to file post-hearing submittals and established a deadline, June 15, 1994, for the filing of such submittals. Respondent and the Department filed their post-hearing submittals on June 13, 1994, and June 14, 1994, respectively. The Hearing Officer has carefully considered these post-hearing submittals. The findings of fact proposed by the parties in these post-hearing submittals are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. At all times material to the instant case, Respondent has held alcoholic beverage license number 16-07413, authorizing him to sell alcoholic beverages on the premises of Pic A Pac (hereinafter also referred to as the "Store").

   
   

2. Respondent was the owner of Pic A Pac until February of 1994, when he sold the Store.

   
   

3. Pic A Pac is a "drive-through" convenience store located at 3390 West Davie Boulevard in Fort Lauderdale, Florida.

   
   

4. It has two "drive through" windows at which motorists are able to purchase items without leaving their vehicles.

   
   

5. On the evening of June 12, 1992, John Raymond drove up to one of these windows in his red, four-door, 1987 Ford Escort and asked Respondent, who was manning the window, for two bottles of Jack Daniels Lynchburg Lemonade, a "wine cooler" product that is marketed as an alcoholic beverage.

   
   

6. Raymond was born on September 25, 1974, and thus was only 17 years of age on June 12, 1994.

   
   

7. Notwithstanding that he had shoulder length hair and was wearing a nose ring and an earring, Raymond's appearance that evening was not such that an ordinarily prudent person would have believed him to be 21 years of age or older. 2/

   
   

8. Moreover, Raymond neither said nor did anything to give Respondent reason to believe that he was not under 21 years of age.

   
   

9. He did not show Respondent, nor did Respondent ask him to produce, any identification.

   
   

10. Nonetheless, Respondent sold to Raymond the two bottles of Jack Daniels Lynchburg Lemonade that Raymond had requested. He did not give Raymond a receipt.

    
    

11. After Raymond paid him, Respondent put these alcoholic beverages in a brown paper bag and handed the bag to Raymond. 3/ He did not give Raymond a receipt.

    
    

12. Raymond took the bag and placed it on the disengaged emergency brake between the driver's and front passenger seat. The latter was occupied by Respondent's companion, Jason Campbell, who like Raymond, appeared to be well under 21 years of age. Raymond then drove off. 4/

    
    

13. The transaction between Respondent and Raymond was observed, through binoculars, by Albert Heinermann, a special agent with the Department, who, along with two other Department special agents, was on surveillance in the area.

    
    

14. Heinermann was in a vehicle parked approximately 40 to 50 yards from the Store.

15. When Heinermann saw Raymond drive off, he followed after him in his vehicle and pulled him over less than a block from the Store.

    
    

16. A search of the vehicle revealed the paper bag containing the two bottles of Jack Daniels Lynchburg Lemonade that Raymond had purchased from Respondent. The bottles were unopened.

    
    

17. Heinermann confiscated the alcoholic beverages and arrested Raymond and Campbell.

    
    

18. One of the other special agents working with Heinermann that evening, Mike Fraher, went to the Store and arrested Respondent.

    
    

19. Criminal charges were filed against Respondent. After the conclusion of the criminal case, the two bottles of Jack Daniels Lynchburg Lemonade that Raymond had purchased from Respondent and that Heinermann had confiscated were destroyed.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Department is statutorily empowered to suspend or revoke an alcoholic beverage license, such as the one held by Respondent, based upon any of the grounds enumerated in Section 561.29(1), Florida Statutes, provided that the proof establishing the existence of the such grounds is clear and convincing. See Pic N' Save v. Department of Business Regulation, 601 So.2d

    245 (Fla. 1st DCA 1992); Evans Packing Company v. Department of Agriculture and Consumer Services, 550 So.2d 112, 116 (Fla. 1st DCA 1989). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

21. Where there are grounds to suspend or revoke an alcoholic beverage license, the Department may also impose a civil penalty against a licensee, not to exceed $1,000.00 for violations arising out of a single transaction. Section 561.29(3), Fla. Stat.

    
    

22. Among the grounds upon which the suspension or revocation of an alcoholic beverage license may be based is the "[v]iolation by the licensee 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." Section 561.29(1)(a), Fla. Stat.

    
    

23. Although a literal reading of the language employed by the Legislature in subsection (1)(a) of Section 561.29, Florida Statutes, suggests that a licensee may have its license suspended or revoked based upon a violation of state law committed by its agents, officers, servants, or employees on the licensed premises, regardless of the licensee's own personal fault or misconduct in connection with the unlawful activity, the courts of this state have consistently held to the contrary. Under the well established case law, a license may be suspended or revoked pursuant to subsection (1)(a) only if it is determined that the licensee is culpably responsible for the violation as a result of his own negligence, intentional wrongdoing, or lack of diligence. See Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992) and the cases cited therein.

24. The Notice to Show Cause issued in the instant case alleges that Respondent should be penalized pursuant to subsection (1)(a) of Section 561.29, Florida Statutes, because he personally "did unlawfully sell, serve or give an alcoholic beverage to a person under twenty-one years of age, contrary to F.S.S. 562.11," and "did possess on [his] licensed premises fireworks contrary to

    F.S.S. 791."

    
    

25. At all times material to the instant case, Section 562.11(1)(a), Florida Statutes, has made it unlawful "for any person to sell, give, serve, or permit to be served alcoholic beverages to a person under 21 years of age . . . on the licensed premises."

    
    

26. "Alcoholic beverages," as that term is used in Section 562.11, Florida Statutes, "means distilled spirits and all beverages containing one-half of 1 percent or more alcohol by volume." Section 561.01(4), Fla. Stat.

    
    

27. "Intoxicating liquors" are "alcoholic beverages containing more than

    4.007 percent of alcohol by volume."

    
    

28. In determining whether the proof presented in a prosecution involving an alleged violation of Section 562.11(1)(a), Florida Statutes, is sufficient to establish that the beverages in question were "alcoholic beverages," as defined in Section 561.01(4), Florida Statutes, the "rules of evidence" set forth in Section 562.47, Florida Statutes, which provides, in pertinent part, as follows, must be applied:

    
    

    In all prosecutions for violations of the Beverage Law: . . .

    1. Proof that the beverage in question was contained in a container labeled as "beer," "ale," "malt liquor," "malt beverage," "wine," or "distilled spirits" or with other similar name; and which bears the manufacturer's insignia, name, or trademark is prima facie evidence that such beverage is an alcoholic beverage as defined in s. 561.01.

    2. Any person or persons who by experience in the past in the handling or use of intoxicating liquors, or who by taste, smell, or drinking of such liquors has knowledge as to the intoxicating nature thereof, may testify as to his opinion whether such beverage or liquor is or is not intoxicating, and a verdict based upon such testimony shall be valid.

       
       

29. The evidence clearly and convincingly establishes that on the evening of June 12, 1992, on his licensed premises, Respondent sold "alcoholic beverages," as defined in Section 561.01(4), Florida Statutes, 5/ to John Raymond, a person under the age of 21 years, without even requesting Raymond to produce any identification, notwithstanding that Raymond appeared to be underage and he neither said nor did anything to give Respondent reason to believe otherwise.

    
    

30. In so doing, Respondent committed a violation of Section 561.11(1)(a), Florida Statutes, that was the product of his own lack of due diligence and for

    which therefore he should be held accountable and penalized pursuant to Section 561.29, Florida Statutes. 6/

    
    

31. The evidence, however, is insufficient to support a finding that Respondent "did possess on [his] licensed premises fireworks contrary to F.S.S. 791." This charge therefore should be dismissed.

    
    

32. In determining the penalty the Department should impose upon Respondent for having unlawfully sold alcoholic beverages to Raymond on June 12, 1992, as alleged in the Notice to Show Cause, it is necessary to consult Chapter 61A-2.022, Florida Administrative Code, which contains the penalty guidelines adopted by the Department. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

    
    

33. It provides that the Department will routinely impose upon a licensee the following penalty for an initial violation of Section 562.11(1)(a), Florida Statutes: "$1,000 [fine] and a 7-day license suspension."

    
    

34. There appears to be no reason why the Department's penalty guidelines should not be followed in the instant case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order dismissing the charge in the Notice to Show Cause that Respondent unlawfully possessed fireworks on his licensed premises, finding Respondent guilty of the charge in the Notice to Show Cause that he unlawfully sold alcoholic beverages on his licensed premises to a person under 21 years of age, and penalizing Respondent for such unlawful conduct by suspending his alcoholic beverage license for a period of seven days and fining him $1,000.00.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1994.

STUART M. LERNER

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 24th day of June, 1994.

ENDNOTES

1/ By order issued on March 15, 1994, the instant case had been consolidated with Case No. 93-5034, however, this order was vacated at the May 26, 1994, final hearing.

2/ An examination of Petitioner's Exhibit 3, which is a photograph of Raymond that was taken the evening of June 12, 1992, shortly after his arrest, reveals a young man who, by all appearances, is clearly under 21 years of age.

3/ Respondent had to bend down to hand the bag to Raymond, who was seated in the driver's seat of his vehicle.

4/ Both Raymond and Respondent testified regarding their encounter that evening. To the extent that there is a conflict in their testimony, the Hearing Officer has relied on Raymond's version inasmuch it is more credible.

5/ Although, as Respondent points out in his proposed recommended order, the Department did not "produce a live witness who checked the contents of the [items Respondent sold to Raymond] for alcoholic content," the testimony of such a witness was unnecessary given the provisions of Section 562.47, Florida Statutes, as well as Respondent's own testimony that these items were "alcoholic beverages."

6/ In his proposed recommended order, Respondent argues, among other things, that the Department "did not rebut the testimony of Raymond's marital status and accordingly under Fla. Statute 743.01 the said John Raymond is not a minor as alleged, but an adult." Section 743.01, Florida Statutes, provides as follows:

The disability of nonage of a minor who is married, including one whose marriage is dissolved, or who is widowed, or widowered, is removed. The minor may assume the management of his estate, contract and be contracted with, sue and be sued, and perform all acts that he could do if not a minor.

A "minor," as that term is used in Section 743.01, Florida Statutes, "includes any person who has not attained the age of 18 years." Even assuming that Section 743.01, Florida Statutes, operates to except married minors from the group of persons to whom licensees are forbidden, by Section 762.11, Florida Statutes, to sell alcoholic beverages, Respondent, not the Department, had the burden of proof on the issue of whether Raymond was a married minor on the date in question and his evidentiary presentation at hearing was insufficient to support an affirmative finding on this issue. See Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778, 788 (Fla. 1st DCA 1981)("[i]in accordance with the general rule, applicable in court proceedings, 'the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal'").

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-0536

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their post-hearing submittals:

The Department's Proposed Findings

1. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

2. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3-4. Accepted as true and incorporated in substance.

1. First and third sentences: Accepted as true and incorporated in substance; Second sentence: Rejected because it is contrary to the greater weight of the evidence; Fourth sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Fifth sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

2. First and second sentences: Accepted as true and incorporated in substance; Third sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Fourth sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

3. First and third sentences: Accepted as true and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third and fourth sentences: Rejected as findings of fact because they are more in the nature of a summaries of testimony than findings of fact based upon such testimony.

Respondent's Proposed Findings

Proposed Findings Labeled "Findings of Fact and the Case"

To the extent that these proposed findings state that "[t]he evidence confiscated at the time of arrest was . . . destroyed," they have been accepted as true and incorporated in substance. Otherwise, they have been rejected as findings of fact because they are more in the nature of statements of the case concerning the instant case and Case No. 93-5034 than findings of fact pertinent to the instant case.

Proposed Findings Labeled "Conclusions"

First unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact. Moreover, to the extent that it asserts that the Department failed to prove that Respondent unlawfully sold alcoholic beverages on his licensed premises to a person under

21 years of age, as alleged in the Notice to Show Cause, it is unpersuasive argument.

Second unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of commentary on testimony adduced by the Department than a finding of fact.

Third unnumbered paragraph, before comma: Rejected as a finding of fact because it is more in the nature of a statement describing a "question" raised by testimony adduced at hearing than a finding of fact resolving such question.

Third unnumbered paragraph, after comma: Accepted as true and incorporated in substance.

Fourth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of argument concerning the Department's evidentiary presentation than a finding of fact. Moreover, to the extent that it asserts that the Department failed to prove that the items Respondent sold to Raymond

were "alcoholic beverages," as defined in Section 561.01(4), Florida Statutes, it is unpersuasive argument.

Fifth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of statement describing a conflict in the testimony adduced by the Department than a finding of fact resolving such conflict.

Sixth unnumbered paragraph: To the extent that this proposed finding states that "two people were in [Raymond's] vehicle" at the time of the purchase, it has been accepted as true and incorporated in substance. To the extent that it states that "only one [of these two people] appeared as a witness" at hearing, it has been rejected as a finding of fact because it is more in the nature of a statement of the case than a finding of fact. To the extent that it states what Heinermann testified to at hearing, it has been rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact.

Seventh unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a statement purporting to describe testimony the Department failed to present at hearing than a finding of fact. Moreover, to the extent that it suggests that Heinermann did not testify as to "what was put into the bag," it is inaccurate.

Eighth unnumbered paragraph, before first comma: Accepted as true and incorporated in substance.

Eighth unnumbered paragraph, after first comma, but before second comma: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

Eighth unnumbered paragraph, after second comma: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact. Moreover, it is unpersuasive argument.

Ninth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Moreover, the Hearing Officer disagrees with the suggestion made in this proposed finding that the testimony Raymond gave reflects that Raymond had the appearance of "a mature looking person . . . at the time of his arrest."

Tenth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.

Eleventh unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of statement describing a conflict in the testimony adduced at hearing than a finding of fact resolving such conflict.

Twelfth unnumbered paragraph, before first comma: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony. Moreover, the testimony in question is less credible than the testimony with which it conflicts.

Twelfth unnumbered paragraph, after first comma: Rejected as a finding of fact because it is more in the nature of argument concerning the credibility of testimony adduced by the Department. Moreover, it is unpersuasive argument.

Thirteenth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony

Fourteenth unnumbered paragraph: Rejected because it is contrary to the greater weight of the evidence.

Fifteenth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony. Moreover, the testimony in question is not worthy of belief.

Sixteenth unnumbered paragraph: Rejected because it is not supported by sufficiently persuasive evidence.

Seventeenth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

Eighteenth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony. Moreover, the testimony in question is less credible than testimony given to the contrary.

Nineteenth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a statement describing evidence the Department failed to present at hearing than a finding of fact.

Twentieth through twenty-third unnumbered paragraphs: Rejected as findings of fact because they are more in the nature of summaries of testimony than findings of fact based upon such testimony. Moreover, the testimony in question is less credible than testimony given to the contrary.

COPIES FURNISHED:

Miguel Oxamendi, Esquire Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Peter N. Hanna, Esquire

500 Southeast 12th Street

Fort Lauderdale, Florida 33316

John J. Harris, Acting Director Division of Alcoholic

Beverages and Tobacco Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Jack McRay, Esquire General Counsel

Department of Professional and Business Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency 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: 94-000536

Orders for Case No: 94-000536