STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 96-4458

)

WHISTLE STOP, INC. d/b/a )

WHISTLE STOP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 17, 1996, via video teleconference with the petitioner and the respondent appearing in West Palm Beach, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas D. Winokur, Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Jeff M. Brown, Esquire

Lavalle, Brown, Ronan and Soff, P. A. 750 South Dixie Highway

Boca Raton, Florida 33431

STATEMENT OF THE ISSUE

Whether the respondent committed the violations alleged in the Administrative Action dated June 19, 1996, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In an Administrative Action dated June 19, 1996, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (“Department”), charged Whistle Stop, Inc., with one violation of section 562.11(1)(a), Florida Statutes, alleging that, on June 15, 1996, Rose Sherrod DuMond, an employee or agent of the corporation, “did sell, serve, or give an alcoholic beverage on your licensed premises to a person under the age of 21.” Whistle Stop timely requested an administrative hearing, and the Department forwarded the matter to the Division of Administrative Hearings for the assignment of an administrative law judge. By amended notice dated November 1, 1996, the case was scheduled for a final hearing via video teleconference on December 17, 1996.

At hearing, the Department presented the testimony of Andrew A. Panzer, a special agent with the Division of Alcoholic Beverages and Tobacco, and of Timothy Saloney, an investigative aide with the Division of Alcoholic Beverages and Tobacco. Petitioner’s exhibit 1, an Amended Stipulation of Fact, was offered and received into evidence. Whistle

Stop offered the testimony of Rose S. DuMond, its president and owner. It offered no exhibits into evidence.

No transcript of the hearing was filed. The parties timely submitted proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with enforcing Florida’s Beverage Law and, specifically, with regulating the sale of alcoholic beverages in the state. Sections 561.02 and .11(1), Florida Statutes.

2. At all times material to this proceeding, Whistle Stop, Inc., held alcoholic beverage license number 60-00055, Series 4COP, for an establishment known as the Whistle Stop, located at 196 and 198 Camino Real, Boca Raton, Palm Beach County, Florida. At all times material to this proceeding, Rose S. DuMond was president and owner of Whistle Stop, Inc.

3. When investigating sales to underage persons, the Department uses “investigative aides.” These aides are under 21 years of age, who must volunteer to participate in the program and have parental consent to do so.

   Investigative aides are directed to answer truthfully if asked their age; even thought they are also directed to show identification if asked, the aides generally do not carry identification when attempting to make a purchase. An investigative aide always works with a law enforcement person, who must witness the sale.

4. The Department opened an investigation of the Whistle Stop on May 30, 1996, to check for compliance with the laws prohibiting the sale of alcoholic beverages to persons under 21 years of age.

5. An investigative aide attempted to purchase an alcoholic beverage at the Whistle Stop on June 7, 1996, however, the clerk asked for identification and the purchase was not completed.

6. Consistent with the Department’s practice to offer the targeted establishment a second opportunity to sell an alcoholic beverage to an underage person before closing an investigation, a second visit to the Whistle Stop was made on June 15, 1996.

7. At approximately 8:30 p.m., Special Agent Andrew Panzer drove Investigative Aide Timothy Saloney to the Whistle Stop. Timothy was an experienced investigative aide, who, on the night in question, was 19 years of age. Timothy indicated that he had not received any formal training but just did what he was instructed to do by the

   agent in charge of the investigation. Usually, his instructions were to enter the establishment under investigation, to select a beer from the cooler and put it on the counter, and to leave it on the counter after paying for it. Timothy was also instructed to tell the truth if asked his age; if asked for identification, he was instructed to tell the clerk he did not have any with him.

8. On this particular night, Special Agent Panzer instructed him to leave his identification in the vehicle. He was to enter the Whistle Stop package store and to attempt to purchase one Budweiser beer.

9. The package store was locked, but a man opened the door of the adjacent lounge area and beckoned him in. Timothy went into the lounge, walked to the bar, and asked Rose DuMond, who was tending bar that night, for a Budweiser. She asked “Are you old enough?” Timothy did not answer by telling Ms. DuMond the truth about his age; rather he replied “Well, what do you think?” or “Why, don’t I look old enough?” Ms. DuMond replied something to the effect that he looked old enough, but she did not ask for identification. She placed a glass on the bar in front of Timothy and poured part of a bottle of Budweiser beer into the glass. She rang up the sale, and Timothy paid for the beer.

10. Agent Panzer entered the bar right after Timothy and stood in the back because Ms. DuMond knew him. He observed Timothy at the end of the bar, saw him in conversation with Ms. DuMond, and saw her serve him the beer. After Timothy had paid Ms. DuMond, Agent Panzer signaled him to leave the bar. Agent Panzer moved forward, took possession of the bottle of beer, and poured some of the contents of the glass into a specimen bottle, which he then sealed.

11. The evidence is clear and convincing that Ms. DuMond sold an alcoholic beverage to a person under the age of 21 years.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to section 120.57(1), Florida Statutes (Supp. 1996).

13. Section 562.11(1)(a), Florida Statutes (1995), makes it “unlawful for any person to sell, give, serve or permit to be served alcoholic beverages to a person under the age of 21 years of age.”

14. Section 562.11(1)(b) provides in pertinent part:

    
    

    A licensee who violates paragraph

    1. shall have a complete defense to any civil action therefor, except for an administrative action by the division under the Beverage Law, if, at the time the alcoholic beverage was sold, given,

       served, or permitted to be served, the person falsely evidenced that he was of legal age to purchase or consume the alcoholic beverage and the appearance of the person was such that an ordinarily 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 following forms of identification with respect to the person: a driver’s license, an identification card . . ., a passport, or a United States Uniformed Services identification card, and acted in good faith and reliance upon the person’s representation and appearance of the person in the belief that he was of legal age to purchase or consume the alcoholic beverage. . . .

       The Department, in rule 61A-3.052(1), Florida Administrative Code, has provided a defense to an administrative action which contains virtually identical elements.

15. Because the Department seeks to impose administrative penalties which may include the suspension or revocation of Whistle Stop’s license to sell alcoholic beverages and/or the imposition of an administrative fine, the Department has the burden of proving the allegations in the Administrative Action by clear and convincing evidence. Osborne Stern and Company v. Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

16. On the basis of the facts found herein, the Department has met its burden of proving that Whistle Stop,

    Inc., violated section 562.11(1)(a) when the alcoholic beverage was sold to Timothy Saloney on its premises. Furthermore, the defense to this violation permitted by rule 61A-3.052(1) is not available to Whistle Stop, Inc., because Ms. DuMond did not attempt to verify Timothy’s age by examining one of the specified forms of identification.

17. The penalty specified in rule 61A-2.022 for a first offense violation of section 562.11 is an administrative fine in the amount of $1,000 and suspension of the alcoholic beverage license for seven days. There are no mitigating or aggravating circumstances to support modification of this penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order finding Whistle Stop, Inc., guilty of violating section 562.11(1), Florida Statutes (1995), imposing an administrative fine in the amount of

$1,000, and suspending its license for a period of seven (7) days.

DONE AND ENTERED this 24th day of February, 1997, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1997.

COPIES FURNISHED:

Thomas D. Winokur, Senior Attorney Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Jeff M. Brown, Esquire

Lavalle, Brown, Ronan and Soff, P. A. 750 South Dixie Highway

Boca Raton, Florida 33431

Richard Boyd, Director Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004458

Orders for Case No: 96-004458