STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

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

)

Petitioner, )

)

vs. ) Case No. 97-1852

)

CRICKETERS ARMS, INC. d/b/a )

CRICKETERS ARMS, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on September 24, 1997, in Orlando, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Leslie Anderson-Adams

Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Phillip G. Coppen, pro se

Cricketers Arms, Inc.

8445 International Drive, Suite 110

Orlando, Florida 32818

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated Sections 569.006 and 569.007, Florida Statutes (1995), by selling cigarettes to a person under 18 years of age and by failing to have the cigarette vending machine in the line of sight, and, if so, what, if any, penalty should be imposed pursuant to Florida Administrative Rule 61A-2.022, 2/

PRELIMINARY STATEMENT

Petitioner filed an Administrative Action against Respondent on August 8, 1996. Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of four witnesses and submitted four exhibits for admission in evidence. Respondent called one witness and submitted three exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the record of the hearing.

Neither party requested a transcript of the hearing. Petitioner timely filed its proposed recommended order ("PRO") on October 6, 1997. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating the sale of retail tobacco products. Respondent holds retail tobacco products permit number 58-05704T.

2. The licensed premises are located at 8445 International Drive, Orlando, Florida (the "licensed premises"). Respondent

   operates the licensed premises for the sale of liquor at tables and a bar.

3. On August 7, 1996, special agents Walter Russell and Linda Greenlee initiated a routine tobacco compliance investigation of the licensed premises. Agents Russell and Greenlee directed investigative aide Megan Holbrook, age 15, to enter the licensed premises and attempt to buy cigarettes from the vending machine.

4. Ms. Holbrook and agents Russell and Greenlee entered the licensed premises at approximately 3:30 p.m. The cigarette vending machine was located just inside the doorway of the licensed premises.

5. Agents Russell and Greenlee sat at the bar. Ms. Holbrook inserted the necessary amounts into the vending machine and purchased one package of Winston cigarettes.

6. None of Respondent's employees questioned Ms. Holbrook concerning her age or identification. Approximately three employees were engaged in a conversation behind the bar during the time that Ms. Holbrook purchased the cigarettes. No patrons were present at the time except Ms. Holbrook and agents Russell and Greenlee.

7. The cigarette vending machine was positioned so that a person standing behind the bar could not see the face of anyone purchasing cigarettes unless the purchaser was at least six feet tall. A view of the purchaser is obstructed by beams and shelves.

8. The vending machine is approximately five feet tall. It is not in the direct line of sight of an employee who is responsible for monitoring the purchase of cigarettes.

9. Ms. Holbrook and agents Russell and Greenlee exited the premises after the purchase. Ms. Holbrook turned over the cigarettes to agents Russell and Greenlee.

10. Agents Russell and Greenlee returned inside the premises. They advised the employees inside that an unlawful sale of cigarettes had occurred and served the required documents.

    CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

12. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that

    Respondent committed the acts alleged in the Administrative Action and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Petitioner satisfied its burden of proof.

13. Respondent violated Section 569.06 by allowing a person under 18 years of age to purchase tobacco products from a vending machine located on the licensed premises. Respondent violated Section 569.07 by failing to locate the cigarette vending machine within the unobstructed line of sight of an employee who is

    responsible for preventing persons under 18 years of age from purchasing tobacco products.

14. Rule 61A-2.022 authorizes Petitioner to impose a fine up to $1,000 for the violations committed by Respondent. Petitioner seeks a fine of $750.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 569.06 and 569.07 and imposing a fine of $750.

DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Florida.

DANIEL MANRY

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 18th day of November, 1997.

ENDNOTES

1/ All references to chapters and sections are to Florida Statutes (1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order.

COPIES FURNISHED:

Richard Boyd, Director Department of Business and

Professional Regulation

Division of Alcoholic Beverages & Tobacco Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Leslie Anderson-Adams Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

Phillip G. Coppen, pro se Cricketers Arms, Inc.

8445 International Drive, Suite 110

Orlando, Florida 32818

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: 97-001852

Orders for Case No: 97-001852