STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 97-4378

)

VAMPIRE CAFE, INC., d/b/a )

VAMPIRE CAFE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 28, 1998, in Vero Beach, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Miguel Oxamendi

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Eric Lappalainen, pro se

3865 North Highway A1A

Fort Pierce, Florida 34949 STATEMENT OF THE ISSUES

Whether the Respondent committed the violation alleged in the Administrative Action dated June 30, 1997, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

On June 30, 1997, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco ("Department"), filed an Administrative Action charging that, on or about May 14, 1997, an agent or employee of the Vampire Cafe, Inc., d/b/a Vampire Cafe, sold an alcoholic beverage to a person under the age of twenty-one years, in violation of Section 562.11(1)(a), Florida Statutes. The Vampire Cafe, through Eric Lappalainen, its secretary/treasurer, requested a formal hearing, and the Department forwarded the case to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, a hearing was held on January 28, 1998.

At the hearing, the Department presented the testimony of Special Agent Charlene Murphy, an employee of the Department, and Detective Richard Boyd, an officer with the Vero Beach Police Department. The Petitioner did not offer any exhibits into evidence. The Vampire Cafe presented the testimony of Jason Richard Thatcher and Eric Lappalainen, and Respondent's Exhibit 1 was offered and received into evidence. At the request of the Department, official recognition was taken of Rule 61A-2.022, Florida Administrative Code.

No transcript was filed in this case, but the parties timely filed proposed recommended orders, 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, the Vampire Cafe held alcoholic beverage license number 41-01242, series

   2-COP, which authorized the sale of alcoholic beverages on the premises of the Vampire Cafe, located at 1306 20th Street, Vero Beach, Indian River County, Florida. At all times material to this proceeding, Eric Lappalainen was the secretary/treasurer of the Vampire Cafe, holding twenty percent ownership interest.

3. At approximately 10:30 p.m. on May 14, 1997, Detective Richard Boyd of the Vero Beach Police Department entered the Vampire Cafe to conduct an undercover investigation of underage drinking on the premises; he was alone. Detective Boyd observed that no one was checking identification at the door of the establishment, which was a coffee house open to persons of all ages and in which both nonalcoholic and alcoholic beverages were served.

4. Detective Boyd sat at the bar and observed that Eric Lappalainen was tending bar; although Detective Boyd thought

   Mr. Lappalainen was the only employee in the cafe at the time, a part-time employee named Nathan Palmer was working also. The cafe was a small establishment, and it was crowded, with approximately forty people standing or sitting at tables and at the bar. Even though the lights were low, Detective Boyd could distinguish facial features from one end of the bar to the other.

5. Detective Boyd observed a young man approach the bar about seven feet from where he was seated and hand

   Mr. Lappalainen two one-dollar bills, which he put into the cash register. Detective Boyd could not hear the conversation between Mr. Lappalainen and the young man, but the young man did not show Mr. Lappalainen any identification. Mr. Lappalainen drew two glasses of dark liquid from a tap labeled "Guinness Stout," and he handed them to the young man. Detective Boyd tested the liquid drawn from the tap by ordering a Guinness Stout, and he confirmed that it was an alcoholic beverage.

6. Detective Boyd believed that the young man he saw purchase the beers was Jason Thatcher. He based this identification on his contact with Jason several weeks prior to May 14, 1997, when he had arrested Jason for possession and cultivation of drugs.

7. Jason was born on October 10, 1978, and was nineteen years old on May 14, 1997. Based upon my observation of Jason at

   the hearing, his appearance suggests that he could have been twenty-one years of age.

8. Detective Boyd did not arrest either Mr. Lappalainen or Jason at the time he observed the sale because he was still conducting his undercover investigation. However, Jason was arrested two weeks after the incident, and Mr. Lappalainen was arrested on June 25, 1997, over a month after the incident.

9. It was Mr. Lappalainen's habit to ask for identification from each person purchasing an alcoholic beverage in the Vampire Cafe to verify that he or she was of legal age; the only exception to this practice was when Mr. Lappalainen knew the person and knew that he or she was twenty-one years of age or older. Mr. Lappalainen asked for identification when a person purchased his or her first alcoholic beverage and did not usually require further identification from the same person during the evening.

10. Jason Thatcher was in the Vampire Cafe at the time Detective Boyd entered the premises.

11. The evidence presented by the Department is sufficient to establish that Mr. Lappalainen sold an alcoholic beverage to a Jason Thatcher, who is under the age of twenty-one years. However, the evidence is not sufficient to establish that Detective Boyd observed Jason purchase his first beer at the cafe on the night of May 14, 1997.

12. Mr. Lappalainen was first confronted with the charges of sale of an alcoholic beverage to a minor at the time of his arrest on June 25, 1997. He could not, therefore, be expected to recall precisely whether he had asked for Jason's identification and whether the identification produced showed that Jason was twenty-one years of age. Under these circumstances, the evidence presented by Mr. Lappalainen that it was his habit to request identification before selling an alcoholic beverage is sufficient to give rise to the inference that he asked Jason to provide identification before he purchased his first beer on May 14, 1997. Had Jason produced false identification in response to the request, his appearance is such that Mr. Lappalainen could reasonably have believed him to be twenty-one years old.

    CONCLUSIONS OF LAW

    
    

13. 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 (1997).

14. Section 562.11(1)(a), Florida Statutes, 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.”

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

    
    

    A licensee who violates paragraph (a) 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.

16. Because the Department seeks to impose administrative penalties which may include the suspension or revocation of Vampire Cafe'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).

17. Based on the facts found herein, the Department has met its burden of proving by clear and convincing evidence that

    Mr. Lappalainen violated Section 562.11(1)(a) when he sold two

    glasses of Guinness Stout to Jason Thatcher on the premises of the Vampire Cafe.

18. However, based on the facts found herein, the Vampire Cafe has proven the elements set forth in Rule 61A-3.052(1), thereby establishing a complete defense to this administrative action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order dismissing the Administrative Action against the Vampire Cafe, Inc., dated June 30, 1997.

DONE AND ENTERED this 6th day of April, 1998, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1998.

COPIES FURNISHED:

Miguel Oxamendi, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Eric Lappalainen, pro se 3865 North Highway A1A

Fort Pierce, Florida 34949

Lt. Bob Young

800 Virginia Avenue, Suite 7 Fort Pierce, Florida 34982

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco

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: 97-004378

Orders for Case No: 97-004378