STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 98-0059

) D & S CLEANING SERVICES, INC., ) d/b/a GOLDEN ACRES MARKET, #2, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida, on March 12, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: George G. Lewis, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Deborah Sargeant, President

Stanley Szymczak, Personal Representative

` D & S Cleaning Services, Inc.

11441 Osceola Drive

New Port Richey, Florida 34654 STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Respondent’s alcoholic beverage license for the premises located at 11441 Osceola Drive in New Port Richey, Florida, should be disciplined because of the matters alleged in the Administrative

Action filed in this matter.

PRELIMINARY MATTERS

By Administrative Action dated October 21, 1997, Captain Bruce E. Ashley, for the Director, Division of Alcoholic Beverages and Tobacco, charged Respondent with a violation of Section 859.06, within Section 561.29(1)(a), Florida Statutes, by unlawfully selling a package of cigarettes to a person under the age of eighteen years. Respondent demanded a formal hearing on the allegation and this hearing ensued.

At the hearing, Petitioner presented the testimony of Special Agent Michael S. Freese, of the Division of Alcoholic Beverages and Tobacco, and Jeremy N. Teller, an investigative aide with the Division. Petitioner also introduced Petitioner’s Composite Exhibit 1. Respondent presented the testimony of Deborah Sargeant and Stanley Szymczak, its president and secretary respectively.

No transcript of the proceedings was furnished. Only Petitioner submitted proposed Recommended Order. It was carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Division of Alcoholic Beverages and Tobacco, was the state agency charged with the responsibility to license and regulate the sales of alcoholic beverages and tobacco products in

   Florida. Respondent, D & S Cleaning Services, Inc., operated the Golden Acres Market #2 at 11441 Osceola Drive in New Port Richey, Florida, under 2-APS license number 61-00306.

2. Pursuant to a request from the Food and Drug Administration, Special Agent Freese set up a random compliance check of the Respondent’s facility for sales of tobacco products to minors. This is routinely done as the result of an ongoing practice whereby FDA requests the Division to check specific business establishments. On the day in question, of the list of places to be checked, the majority were in Pasco County.

3. On Saturday, October 11, 1997, working with an investigative aide, Mr. Teller, who was fifteen years old at the time, Special Agent Freese conducted a controlled buy at the Respondent’s facility. Freese briefed Teller before sending him into Respondent’s store, and also searched him to ensure he had no cigarettes, false identification, or other contraband on him. Freese then instructed Teller to go into the store and attempt to buy a package of cigarettes from whomever was on duty inside. Teller was to make no gratuitous representations about his age, and if asked for identification, was to be truthful.

4. At approximately 3:00 p.m. on the day in question, Teller entered Respondent’s store, with Freese following shortly thereafter. According to Freese, the store is a typical convenience store. No customers were inside at the time. From fifteen to twenty feet away, Freese observed Teller approach

   Ms. Sargeant, who was manning the register, and ask for a package of Marlboro Light cigarettes. Freese neither saw nor heard

   Ms. Sargent ask Teller for proof of age, or for identification. She sold him the cigarettes for $1.71, including sales tax.

   Teller, who is not a regular patron of the Respondent’s facility, contends that Ms. Sargeant neither asked him his age nor sought any identification. He was dressed in clothing consistent with that of a teenager, without a hat, at the time of the purchase.

   When Teller left the licensed premises, he gave the cigarettes he had purchased to Freese who marked them for evidence on the spot.

5. Thereafter, Freese went back to the Respondent’s facility the following Monday and advised Ms. Sargeant of the unauthorized purchase. She had no recollection of it. Freese waited until the following Monday to notify the licensee of the alleged violation because of a Division policy which required investigators to ensure that investigative aides are removed from the scene of a violation prior to any arrest or in-person notice of a violation is made. By the time the agency participants got home on Saturday, it was late. The following day was Sunday, in the absence of an emergency situation a non-work day, so the actual notice of violation was not given until the following Monday. Both Ms. Sargeant and Mr. Szymczak contend that by the time they were questioned on Monday, neither could remember a particular patron who purchased a pack of cigarettes.

6. Some time later, on November 10, 1997, an Administrative

   Action was issued, indicating the Division’s intention to take disciplinary action against the licensee because of the unlawful sale of tobacco products to a minor.

7. According to both Sargeant and Szymscak, there is no way Teller or anyone else could have purchased a pack of Marlboro Lights at their store for $1.71, including tax. At the time in issue, Marlboro was having a large promotion and had supplied them with several signs, for both outside and inside the store, which listed Marlboro Lights for sale at $1.88 per pack, plus tax, for a total of $2.00 per pack. The pricing structure for other cigarettes at the time, they claim, priced generic cigarettes at $1.69 per pack, plus tax, for a total of $1.80 per pack, and, at times, other less known brands on sale for $1.49 per pack plus tax. None, they claim, sell or were sold for $1.71 per pack, either with or without tax.

8. Mr. Szymscak, who claims he is always in the store, also denies having seen either Freese or Teller in the licensed premises until Freese came in on the evening of Monday,

   October 13, 1997. When the Administrative Action was initially served on the Respondent, it did not contest that the sale had been made. Mr. Szymscak and Ms. Sargent avowed no knowledge of it, however. They were initially contesting the amount of the proposed fine as excessive. However, having heard both Freese and Teller testify at hearing as to the $1.71 price of the cigarettes, they now state they are convinced the purchase was

   not made at their establishment. The more credible weight of the evidence establishes that the alleged sale was made at Respondent's store.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case.

   Section 120.57(1), Florida Statutes.

   
   

10. Section 569.101(1), Florida Statutes, makes it an offense to sell, deliver, barter, furnish, or give, directly or indirectly, any tobacco product to any person who is under 18- years old. The licensee has a defense to action being taken under that statute, or a rule promulgated thereunder, if the buyer gave false evidence of age; if the buyer’s appearance was such that a prudent person would believe the buyer was 18 or older; and if the licensee, in good faith, carefully checked a driver’s license or other identification card issued by a governmental entity, and in reliance thereon and on the buyer’s appearance, acted in the belief the buyer was 18 or older.

1. Here there is an allegation by a state officer, supported by the testimony of an investigative aide, that the licensee, Ms. Sargeant, on the date alleged, without asking for or checking any form of identification, sold a pack of cigarettes to the aide, a youth well under the age of 18, who, at the time, appeared to be and was dressed in a manner consistent with his age. If the sale was made, it constitutes a clear violation of

   the statutory and rule prohibition.

   
   

2. On the other hand, however, both Ms. Sargeant and her partner, Mr. Szymczak, not only deny that cigarettes were ever sold at their premises for the price cited by the agent and the aide, but also contend that they do not recall having seen either Freese or Teller in their store.

3. Evaluating the evidence as presented, it is clear that the sale took place as alleged. Freeze testified that Respondent's licensed premises was on the list submitted for investigation, and both he and the aide testified they were in the store. Both identified Respondent Sargeant as the individual from whom the purchase was made. While Mr. Szymczak and Ms. Sargent contend they did not ever sell cigarettes for the price indicated by Freeze and Teller, they did not present any documentary evidence supporting their pricing assertions. Since Teller is clearly shown to be under the age of 18, the violation allegation has been established.

4. Section 569.006, Florida Statutes, as incorporated in the Department’s Rule 61A-2.022, Florida Administrative Code, sets forth the penalty guidelines for proven violations of the statute. The violation alleged herein carries a recommended penalty of an administrative fine of $500. Petitioner intends to impose this penalty. This is within its parameters.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order in this case imposing the minimum appropriate penalty for the offense of unlawfully selling one pack of cigarettes to a minor under the age of 18.

DONE AND ENTERED this 18th day of April, 1998, in Tallahassee, Leon County, Florida.

_ ARNOLD H. POLLOCK

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1998.

COPIES FURNISHED:

George G. Lewis, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Deborah Sargeant, President

Stanley Szymczak, Secretary-Treasurer D & S Cleaning Services, Inc.

Post Office Box 1723

New Port Richey, Florida 34656

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Richard Boyd, Director Division of Alcoholic

Beverages and Tobacco Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

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: 98-000059

Orders for Case No: 98-000059