STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5971

) AHMAD ENTERPRISES CORP., d/b/a ) HIALEAH SUPERMARKET, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case by video teleconference on April 10, 1997, before Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings. The participants were in Miami, Florida and the Judge was in Tallahassee, Florida.

APPEARANCES

For Petitioner: Miguel Oxamendi, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Laureano Cancio, Esquire

815 Ponce de Leon Boulevard Coral Gables, Florida 33134

STATEMENT OF THE ISSUES

This is a license discipline case in which Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged unlawful sale of an alcoholic beverage and cigarettes to a minor.

PRELIMINARY STATEMENT

At the final hearing in this case the Petitioner presented the testimony of three witnesses; two Special Agents of the Division of Alcoholic Beverages and Tobacco and one Investigative Aide. The Respondent presented the testimony of two witnesses; the owner of the Respondent corporation and her husband. The Respondent also offered one exhibit, which was received in evidence.

At the conclusion of the final hearing the parties decided not to order a transcript of the hearing. The parties requested, and were granted, ten days from the conclusion of the hearing within which to file proposed recommended orders. The Petitioner filed a timely proposed recommended order on April 21, 1997.1 As of the date of this Recommended Order, the Respondent has not filed any post-hearing document.

FINDINGS OF FACT

1. At all times relevant and material to this proceeding, the Respondent held license number 23-12104, series 2-APS, authorizing it to sell alcoholic beverages on the premises of New Hialeah Supermarket, located at 3201 East 4th Avenue, Hialeah,

   Dade County, Florida (hereinafter "the licensed premises"). Aleya Ribhi Maali (hereinafter "Maali") is the sole corporate officer and shareholder of the respondent corporation.

2. On September 24, 1996, Special Agents Spayd, Smith, and Delmonte conducted random tests of alcoholic beverage licensees' compliance with laws prohibiting the sale of alcoholic beverages to persons under the age of 21 and tobacco to persons under the age of 18.

3. On September 24, 1996, Investigative Aide C. R.2 entered the licensed premises in furtherance of the above referenced investigation. C. R.'s date of birth is August 15, 1979. She was 17 years of age at all times relevant to these proceedings.

4. C. R. selected a can of Budweiser beer from the back of the store. She then approached Maali at the cash register counter and asked her for a pack of Marlboro cigarettes. Maali handed C. R. the pack of cigarettes which she had retrieved from the display behind the register counter. Respondent proceeded to sell C. R. the can of Budweiser beer and the Marlboro cigarettes. Maali did not request to see any identification as proof of legal age, nor did she ask C. R. her age.

5. Maali was questioned by Agents Delmonte and Smith. Maali admitted that she had not been paying attention to what she had been doing. She said that she had been working in the store since 8:00 a.m. At the formal hearing she testified that the

   sale to C. R. was a consequence of being tired and confused because of the long work day. She testified that at the time of the sale she had been thinking about going home to make dinner.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

7. Section 561.29(1), Florida Statutes, provides that the Division of Alcoholic Beverages and Tobacco is given full power and authority to revoke or suspend a beverage license under the Beverage Law upon proof that the licensee or his or her agents, officers, servants, or employees on the licensed premises violated any of the laws of this State or of the United States.

8. Section 562.11, Florida Statutes, provides:

   
   

   (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 s. 775.082 or s. 775.083.

9. Section 562.11(1)(b), Florida Statutes, further provides, in pertinent part, that it is a complete defense to a violation of Section 562.11(1)(a), 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), Florida Statutes. [Emphasis added.]

10. Section 859.06, Florida Statutes, provides:

    
    

    1. It is unlawful to sell, deliver, barter, furnish, or give, directly or indirectly, to any person who is under 18 years of age, any cigarette or other tobacco product or cigarette wrapper. As used in this section, the word 'cigarette' includes a clove cigarette or tobacco substitute.

       
       

    2. Any person who violates subsection (1) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or 775.083.

       
       

    3. A person charged with a violation of subsection (1) has a complete defense if, at the time the cigarette or other tobacco product or cigarette wrapper was sold, delivered, bartered, furnished or given:

       1. The buyer or recipient falsely evidenced that he was 18 years of age or older;

       2. The appearance of the buyer or recipient was such that a prudent person would believe the buyer or recipient to be 18 years of age or older; and

       3. Such person carefully checked a driver's license or an identification card issued by this state or another state of the United States, a passport, or a United States armed services identification card presented by the buyer or recipient and acted in good faith and in reliance upon the representation and appearance of the buyer or recipient in the belief that the buyer or recipient was 18 years of age or older. [Emphasis added.]

11. The defenses under Sections 562.11(1)(b), and 859.06(3), Florida Statutes, are not available to the Respondent in this case for several reasons. C. R. did not make any false statements about her age. Maali did not ask to see C. R.'s

    identification. The appearance of C. R. was such that an ordinary prudent person would not believe her to be of legal age to purchase or consume alcoholic beverages or tobacco.

12. Section 562.47, Florida Statutes, reads in part:

    
    

    1. Proof that the beverage in question was contained in a container labeled '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 facia 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 the 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.

13. Although there is no similar provision for tobacco, clear and convincing evidence was presented that C. R. purchased a pack of Marlboro cigarettes. C. R. asked Maali to sell her a pack of Marlboro cigarettes. Agent Spayed observed the purchased evidence. He had smoked Marlboro cigarettes in the past, and being familiar with the packaging and trademark, he concluded that the item sold to C. R. was a pack of Marlboro cigarettes.

14. The facts evidenced at the formal hearing demonstrated by clear and convincing evidence violations of Sections 562.11(1)(a) and 859.06, Florida Statutes, as alleged in the Administrative Action document. The Respondent's sole corporate

    officer and shareholder failed to exercise diligence when she illegally sold the products to C. R. By her own admission she was too tired to think about the sale she was transacting. She was instead thinking about making dinner. The admissions of the licensee, being tired or confused and thinking about making dinner, fail to demonstrate due diligence.

15. Rule 61A-2.022, Florida Administrative Code, contains the Division's penalty guidelines. The penalty guideline for violations of Section 562.11, sale of alcoholic beverages to persons under the age of 21, is a seven day license suspension and a $1,000 civil penalty. The penalty guideline for violations of Section 859.06, sale of cigarettes to persons under the age of 18, is a $500 civil penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered in this case concluding that the Respondent is guilty of the two unlawful sales charged and imposing a penalty consisting of a 7-day license suspension and administrative fines in the total amount of $1,500.00

DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.

ENDNOTES

1/ The Petitioner's proposed recommended order contains an accurate and complete discussion of the factual and legal issues in this case. Almost all of the findings of fact and conclusions of law proposed by the Petitioner have been incorporated into this Recommended Order.

2/ Because the Investigative Aide is a minor, initials have been substituted for her name. Her name was disclosed at the hearing.

COPIES FURNISHED:

Miguel Oxamendi, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Laureano Cancio, Esquire 815 Ponce de Leon Boulevard

Coral Gables, Florida 33134

Maj. Jorge R. Herrera

8685 Northwest 53rd Terrace, Suite 100

Miami, Florida 33166

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco 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: 96-005971

Orders for Case No: 96-005971