STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 97-3819

)

MAHMOUD F. MOHAMED, d/b/a )

KWIK STOP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 30, 1997, at West Palm Beach, Florida, before

Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James D. Martin, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Mark R. Hanson, Esquire

224 Datura Street, Suite 1300 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

Whether Respondent, the holder of a license to sell alcoholic beverages, sold an alcoholic beverage to a minor as alleged in the Administrative Action dated June 17, 1997, and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

The Administrative Action filed against Respondent alleged that he sold an alcoholic beverage to a minor in violation of Section 562.11(1)(a), Florida Statutes. Respondent timely filed a request for a formal hearing, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, the Petitioner presented the testimony of Andrew Panzer and Casey Fand. Mr. Panzer is an experienced investigator employed by Petitioner. Mr. Fand was

17 years of age at the times pertinent to this proceeding and was employed by Petitioner to assist Agent Panzer in a general investigation of sales of alcoholic beverages to minors. Petitioner presented one exhibit, which was accepted into evidence. At the request of the Petitioner, official recognition was taken of pertinent statutes and rules. Respondent testified on his own behalf and presented one exhibit, which was accepted into evidence.

No transcript of the proceedings has been filed. Petitioner filed a proposed recommended order, which has been duly considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent,

   Mahmoud Mohamed, was doing business as Kwik Stop, which is a convenience store located at 1200 Broadway, Riviera Beach, Florida. Respondent holds license number 60-02476, series 2APS, which authorizes him to sell alcoholic beverages at his business location (the licensed premises).

2. On June 13, 1997, the Division initiated a general investigation to determine whether persons under the age of 21 were being sold alcoholic beverages by licensees of the Division.

3. As part of that general investigation, two special agents employed by the Petitioner and an investigative aide employed by the Petitioner made a random stop at the licensed premises between 8:30 p.m. and 9:00 p.m. One of the special investigative agents was Andrew Panzer, an experienced law enforcement officer. The other special agent was Agent Panzer's partner, who did not testify. The investigative aide was

   Casey Fand, a seventeen-year-old high school student.

   
   

4. The special agents instructed Mr. Fand to enter the licensed premises and to attempt to purchase a beer.

5. Mr. Fand entered the premises first, and shortly thereafter, Mr. Panzer entered the store. The other agent remained outside the premises.

6. Mr. Fand went to the cooler, selected a 12-ounce can of Budweiser beer, and walked to the counter where Respondent was working. Mr. Panzer selected a soft drink and followed Mr. Fand to the counter. Mr. Panzer stood behind Mr. Fand and was in

   position to observe and hear what transpired between Mr. Fand and the Respondent.

7. There is a dispute in the record as to what happened next. Respondent testified that when Mr. Fand came to the counter with the beer, Respondent asked him for identification. Respondent further testified that Mr. Panzer then took the beer from Mr. Fand. Respondent testified that Mr. Panzer paid for the beer and the soft drink. The testimony of Mr. Fand and

   Mr. Panzer conflicted with Respondent's testimony. Both Mr. Fand and Mr. Panzer testified that Respondent never asked Mr. Fand for identification and that Mr. Fand paid for the beer and left the store. They both testified that Mr. Panzer thereafter paid for the soft drink and left the store. Mr. Panzer testified that after he conferred outside with his partner and Mr. Fand, he re- entered the premises, advised Respondent of the violation, and issued him a notice to appear. In resolving the conflicts in the evidence, it is determined that the clear and convincing testimony of Mr. Fand and Mr. Panzer is more credible than that of the Respondent. In reaching this conclusion, the undersigned has considered the demeanor of the witnesses, the training and experience of Mr. Panzer, and the fact that neither Mr. Panzer nor Mr. Fand has an apparent motive to fabricate evidence.

8. Based on the more credible testimony, it is found that on June 13, 1997, Respondent sold a beer, which is an alcoholic beverage, to a minor, Mr. Fand, without asking for

   identification.

   
   

9. Respondent's license has not been previously disciplined by Petitioner.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

11. Section 562.11(1)(a), Florida Statutes, provides, in pertinent part, as follows:

    (1)(a) It is unlawful for any person to sell

    . . . alcoholic beverages to a person under

    21 years of age. . . .

    
    

12. Section 561.29(1)(a), Florida Statutes, provides, in pertinent part, as follows:

    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, officials, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state. . . .

13. Petitioner has established by clear and convincing evidence that Respondent sold an alcoholic beverage to a minor on June 13, 1997. This sale violated the provisions of Section 562.11(1)(a), Florida Statutes, and, consequently, Section 561.29(1)(a), Florida Statutes.

14. Rule 61A-2.022, Florida Administrative Code, provides penalty guidelines that are pertinent to this proceeding. The recommended penalty for selling an alcoholic beverage to a minor is the imposition of an administrative fine in the amount of

$1,000 and the suspension of licensure for seven days. There are

no aggravating or mitigating factors present in this proceeding that require deviation from that penalty guideline.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that incorporates the findings of fact and conclusions of law contained herein. It is further recommended that the Final Order impose an administrative fine against Respondent in the amount of

$1,000 and suspend his license for a period of seven days.

DONE AND ENTERED this 5th day of December, 1997, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 5th day of December, 1997.

COPIES FURNISHED:

James D. Martin, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Mark R. Hanson, Esquire

415 Fifth Street

West Palm Beach, Florida 33401

Captain Debbie Beck

400 North Congress Avenue, Suite 150 West Palm Beach, Florida 33401

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: 97-003819

Orders for Case No: 97-003819