STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, ) CASE NO.: 96-5554

)

vs. )

)

SUPERETTE #3, INC. d/b/a )

SUPERETTE #3, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated administrative law judge, Mary Clark, held a formal hearing in the above-styled case on March 19, 1997, in Orlando, Florida.

APPEARANCES

For Petitioner: Thomas D. Winokur, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Steven G. Horneffer, Esquire

101 Sunnytown Road, Suite 109 Casselberry, Florida 32707

STATEMENT OF THE ISSUES

The issues for disposition are whether Respondent sold alcoholic beverages to an underage person in violation of section 562.11(1)(a), Florida Statutes, as alleged in the Petitioner’s Administrative Action dated February 20, 1996, and if so, what penalty or discipline is appropriate.

PRELIMINARY STATEMENT

In response to the Administrative Action, Respondent disputed the factual allegations and requested a formal administrative hearing. The case was referred to the Division of Administrative Hearings and proceeded to hearing as described above.

At the hearing, Petitioner presented testimony of Officer Larry Johnson, Lake Mary Police Department; Darrell Brewer; and Capt. Tommy Ewing, Division of Alcoholic Beverages and Tobacco. Respondent presented the testimony of Salim Dhanani, sole officer and owner of Superette # 3, and offered four exhibits, received into evidence as Respondent’s exhibits no. 1-4.

Respondent’s motion for dismissal based on double jeopardy was taken under advisement and is addressed in the conclusions of law, below.

Both parties filed proposed recommended orders which have been considered in the preparation of this recommended order. The transcript of hearing was not filed.

FINDINGS OF FACT

1. Respondent is the holder of alcoholic beverage license no. 69-01472, Series 2APS, for a licensed premises doing business as Superette #3, located at 199 North Country Club Road, Lake Mary, Seminole County, Florida.

2. On February 8, 1996 and at all relevant times, Salim Dhanani was the sole corporate officer and sole shareholder of Superette #3, Inc., the holder of the above-referenced alcoholic beverage license.

3. The “City/County Investigative Bureau” (CCIB) is a task force of officers from the Seminole County Sheriff’s Department and surrounding cities assigned to investigate crimes relating to drugs, alcohol and vice, including the sale of alcohol to minors. CCIB acts on complaints and works with the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT).

4. Darrell Brewer, born March 18, 1976, was a police explorer who was asked to help the CCIB investigate sales of alcohol to underage persons. On February 8, 1996, he was 19 years old and was working with Officers Johnson and Hartner.

   
   

   
   

5. On February 8, 1996, in the evening around 8:00 p.m., Brewer and a CCIB agent entered the licensed premises, Superette #3. Brewer wore jeans and a tee-shirt and carried cash and a valid ID, which he was instructed to present if requested.

6. Brewer picked out a 6-pack of Miller Genuine Draft beer and took it to the counter, where he purchased it without being asked for identification or any question regarding his age.

7. Brewer turned over the beer to Officer Johnson, who returned to the store and arrested the clerk who had made the sale, Salim Dhanani.

8. In May 1996, Dhanani went to court and pled no contest to the criminal charge of sale of alcohol to an underage person. He paid a fine. In his eleven years in the United States, this is the only violation by Dhanani. He worked in several places before taking over Superette #3 in November 1993, and he never had problems with DABT.

9. After the Brewer incident, Dhanani hired a private consultant to train his wife and him and their one employee. They learned to “ID” everyone, including regular customers; they posted signs and notices informing customers of their “responsible vendor policy” and their intent to prosecute minors attempting to purchase alcohol.

   
   

   
   

10. Dhanani admits that he sold beer to Brewer without asking for identification and without questioning his age. Brewer is a large, mature youth who, at the time of hearing, looked to be in his mid-20’s. To Dhanani, at the time of sale, Brewer appeared to be “28 or so”. Under the responsible vendor program any customer who appears to be under the age of 30 must be required to present proper identification.

11. Through Capt. Ewing, DABT presented unrebutted evidence that the premises in Lake Mary has been vacated by the licensee, Superette #3, Inc., and a new license was issued to the landlord of the premises. Cancellation of the Superette #3 license is in abeyance pending this proceeding.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.27(1), Florida Statutes.

13. Section 561.29, Florida Statutes provides, in pertinent part:

    561.29 Revocation and suspension of license; power to subpoena

    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 violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages or license requirements of special licenses issued under section 561.20....

14. Section 562.11(1), Florida Statutes provides in pertinent part:

    562.11 Selling, giving, or serving alcoholic beverages to person under age 21; misrepresenting or misstating age or age or another to induce licensee to serve alcoholic beverages to person under 21; penalties.

    (1)(a) It is unlawful for any person 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. Anyone convicted of violation of the provisions hereof is guilty of a misdemeanor of the second degree, punishable as provided in section 775.082 or section 775.083.

    1. A licensee who violates paragraph

    1. shall have a complete defense to any civil action therefor, except for any 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 issued under the provisions of section 322.051 or, if the

       
       

       
       

       person is physically handicapped as defined in section 553.45(1), a comparable identification card issued by another state which indicates the person’s age, a passport, or a United States Uniformed Services identification card, and acted in good faith and in reliance upon the representation and appearance of the person in the belief that he was of legal age to purchase or consume the alcoholic beverage. Nothing herein shall negate any cause of action which arose prior to June 2, 1978.

15. Although section 562.11(1)b), Florida Statutes, by its terms does not apply in administrative proceedings such as this, DABT, by rule, provides an identical defense to licensees in administrative proceedings. See rule 61A-3.052(1), Florida Administrative Code. Respondent is not entitled to the defense, as Brewer did not falsely evidence he was of legal age, nor did the clerk attempt to verify his age.

16. Respondent was not “entrapped” into selling alcoholic beverages to an underage person. Respondent was merely provided with the opportunity to commit a crime and promptly availed himself of the opportunity. See Munoz v State, 629 So.2d 90 (Fla. 1993). In Munoz, where the court found entrapment, the underage person presented a false membership card, lied about her age and made repeated visits to the video store where she rented X-rated movies. Brewer, in the instant case, did none of this and did nothing to affirmatively induce the violation.

    
    

    
    

17. Respondent is not entitled to the “responsible vendor” defense described in section 561.706, Florida Statutes. The defense does not apply to a licensee who personally made the illegal sale. Moreover, Respondent only made an effort after the violation to obtain training, and there is insufficient evidence to establish that Respondent has accomplished all of the detailed requirements for a qualified responsible vendor described in section 561.705, Florida Statutes.

18. Finally, Respondent argues that license discipline for the same offense for which he as already been punished in a criminal case constitutes double jeopardy. Citing the U.S. Supreme Court case relied on by Respondent, United States v. Halper, 490 US 435 (1989), the First District Court of Appeal rejected that claim in a case involving discipline of a physician for medicare fraud. Borrego v. Agency for Health Care Administration, 675 So.2d 666 (Fla. 1st DCA 1996). Like the practice of medicine in Florida, selling liquor is a privilege, not a right. Morey’s Lounge v. State, Dept. of Bus., 673 So.2d

    538 (Fla. 4th DCA 1996). In Florida, in a license discipline case, a civil penalty after criminal punishment is not double jeopardy.

19. The agency has proven by clear and convincing evidence that Respondent committed the violation alleged in the

    
    

    
    

    Administrative Action. Department of Banking and Fin. v. Osborne Stern, 670 So.2d 932 (Fla. 1996).

20. Under the agency’s penalty guidelines in rule 61A- 2.022, Florida Administrative Code, a first occurrence warrants a

    $1000.00 fine and 7-day suspension. Counsel for the agency suggests, however, that the license should be revoked, as the licensee has abandoned the licensed premises and a suspension would have no practical effect.

21. Rule 6A-3.008(2), Florida Administrative Code requires that licenses issued to vendors must be for a permanent location at which the business is to be operated. Sections 561.29(1)(h) and (i), Florida Statutes, provide that failure to maintain the licensed premises in an active manner is cause for revocation or suspension of a license. Section 561.33, Florida Statutes, provides for application by a licensee to move his place of business to a new location.

22. In this proceeding, the Respondent was not charged with a violation of the rule and statutes cited above, and it would be inappropriate to assess a penalty based on those violations. The penalty of $1000.00 and 7-day suspension is appropriate unless it is impossible to reinstate a license after suspension without an identified premises. In that case, Respondent should be given the opportunity to find and apply for approval of a new location.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

That the Division of Alcohol Beverages and Tobacco enter its final order finding that Respondent committed the violation alleged in the Administrative Action, assessing a fine of

$1000.00, and suspending the license for 7 days, or until Respondent has found an approved new location.

DONE and ENTERED this 17th day of April 1997 in Tallahassee, Leon County, Florida.

MARY CLARK

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 17th day of April 1997.

COPIES FURNISHED:

Thomas D. Winokur, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Steven G. Horneffer, Esquire Suite 109

101 Sunnytown Road Casselberry, Florida 32707

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-005554

Orders for Case No: 96-005554