STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 98-2008

)

GREEN AND WHITE, INC., d/b/a )

GREEN AND WHITE TEXACO, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on March 10, 1999, in Lakeland, Florida.

APPEARANCES

For Petitioner: Elsa Lopez Whitehurst, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street . Tallahassee, Florida 32399-1007

For Respondent: Tony Dodds, Esquire

825 East Main Street Lakeland, Florida 33801

STATEMENT OF THE ISSUES

Should Respondent's alcoholic beverage license be revoked, suspended, or otherwise disciplined?

PRELIMINARY STATEMENT

By an Administrative Action dated February 18, 1998, the Department of Business and Professional Regulation, Division of Alcoholic Beverages (Department) seeks to revoke, suspend, or otherwise discipline Respondent's alcoholic beverage license. As grounds therefore, the Department alleges that Respondent through its employees, agents, or servants did sell, serve, give, or allow to be consumed, alcoholic beverages on Respondent's licensed premises to persons under the age of 21 years in violation of Section 562.11(1), Florida Statutes.

By a Request For Hearing dated March 13, 1998, Respondent disputed the allegations and requested a formal hearing in accordance with Chapter 120, Florida Statutes. By Notice dated November 24, 1998, the Agency referred this matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a hearing.

At the hearing, the Department presented the testimony of James Carl Clinard, Leron Strong, Crystal Henry, Enrique Ramos, Cleveland McKenzie, Lieutenant (Lt.) Bradley Nelson, and Valerie Ann Mackey. The Department's Exhibits numbered 1-4, 6, and 13-18 were received in evidence. Since the Department's Exhibits numbered 1, 14, and 17 contained an alcoholic beverage, the Department retained custody of those exhibits. Respondent presented the testimony of Raven Bradshaw and Jung I Huang.

Respondent's Exhibits numbered 1 and 2 were received as evidence.

At the close of the hearing, the parties were undecided about ordering a transcript and requested additional time to make a decision. Subsequently, the Department ordered a Transcript.

A two-volume Transcript of this proceeding was filed with the Division on April 30, 1999. Subsequently, the Department filed two unopposed motions for extension of time for filing its proposed recommended order. The motions were granted with the understanding that any time constraint imposed under Rule 28- 1.06.216(1), Florida Administrative Code, was waived in accordance with Rule 28-106.216(2), Florida Administrative Code. The parties filed their Proposed Recommended Orders within the extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At times pertinent to this proceeding, Respondent held alcoholic beverage license No. 63-02541, series 2APS, for an establishment known as Green and White Texaco (the licensed premises), located at 3501 Cleveland Heights Boulevard, Lakeland, Florida.

2. The Department opened an investigation of the licensed premises after an arrest was made by the Lakeland Police Department related to alleged sales of alcoholic beverages to underage persons by Respondent's employees.

3. James Carl Clinard was identified as the underage Investigative Aide No. 97032 in the Administrative Action filed against Respondent by the Department. On December 5, 1997, James Carl Clinard was 18 years of age (date of birth May 23, 1979) and his appearance on December 5, 1997, was that of a person under 21 years of age.

4. On December 5, 1997, Clinard was working with Officer Leron Strong and Lt. Nelson in an attempt, as an underage Investigative Aide, to purchase an alcoholic beverage from the licensed premises.

5. Before beginning work on December 5, 1997, Clinard was instructed by Strong and Nelson that he was not to attempt to deceive anyone as to his age or appearance. Clinard's identification (a valid State of Florida driver's license which indicated his age to be 18 years) was checked by Lt. Nelson and Officer Strong and found to be legitimate. Clinard's photograph on his identification and his appearance on December 5, 1997, were similar and not misleading as to his age listed on his identification.

6. Clinard was only allowed to carry into the licensed premises his identification and the money furnished by the Department for the purchase of the alcoholic beverage.

7. Sometime around 6:20 p.m. on December 5, 1997, Clinard entered Respondent's licensed premises. Both Strong and Nelson waited outside the licensed premises.

8. After entering the licensed premises, Clinard went to the cooler and selected a bottle of "Bud Light" beer which he brought to the counter. Before selling Clinard the beer, the cashier, Robin Ann Boss asked for and Clinard presented his identification. The cashier sold Clinard the beer, notwithstanding that Clinard's identification showed his age to be 18 years of age.

9. After paying for the beer, Clinard took possession of the beer and exited the licensed premises. Subsequently, Clinard turned the beer over to the Department's agents. Clinard does not remember the cashier giving him a receipt for the beer. Likewise, the agents do not remember Clinard turning in a receipt for the beer.

10. As a result of selling the alcoholic beverage to Clinard, Robin Ann Boss was arrested by Officer Strong.

11. On December 8, 1997, Lt. Nelson mailed Respondent an Official Notice advising Respondent that its employee, Robin Ann Boss, had been "warned or charged" for selling, giving, or serving persons under 21 years of age alcoholic beverages in violation of Section 562.11, Florida Statutes.

12. Crystal Henry was identified as the underage Investigative Aide No. 97028 in the Administrative Action filed against the Respondent by the Department. On January 7, 1998, Henry was 16 years of age (date of birth October 22, 1981) and

    her appearance on January 7, 1998, was that of person under the age of 21 years.

13. On January 7, 1998, Henry was working with Agent Cleveland McKenzie and Anne Ekstrand in an attempt, as an underage Investigative Aide, to purchase alcoholic beverages or tobacco products from the licensed premises.

14. Before beginning work on January 7, 1998, Henry was instructed by Agents McKenzie and Ekstrand that she was not to attempt to deceive anyone as to her age or appearance. Agents McKenzie and Ekstrand checked Henry's identification (a valid State of Florida driver's license which indicated her age to be

    16 years) and found it to be legitimate and found that her identification was not misleading as to her age or her appearance on January 7, 1998.

15. Henry was only allowed to carry into the licensed premises her identification and the money furnished to her by the Department for the purchase of the alcoholic beverage and tobacco product.

16. Sometime around 5:00 p.m. on January 7, 1998, Henry entered the licensed premises. Upon entering the licensed premises, Henry proceeded to the beer cooler and obtained a Bacardi Breezer wine cooler. Henry then walked to the check-out counter with the wine cooler and asked the clerk for a five-pack of Black and Mild Cigars. The sales clerk completed the sale without asking Henry for any form of identification. Henry paid

    the sales clerk $1.79 for the cigars and $2.09 for the wine cooler.

17. Henry took possession of the wine cooler and cigars and exited the licensed premises. Subsequently, Henry turned the wine cooler and cigars over to Agent McKenzie. Henry does not remember the clerk giving her a receipt for the wine cooler and cigars. Likewise, the agents do not remember Henry turning in a receipt for the wine cooler and cigars.

18. The clerk was identified as Valerie Ann Walker, who was subsequently charged with and arrested for, the sale of an alcoholic beverage and tobacco product to an underage person in violation of Section 562.11, Florida Statutes.

19. A Final Warning was issued to Respondent on January 9, 1998, advising Respondent of the violation and giving Respondent notice that another violation would result in the issuance of an Administrative Action by the Department which could subject Respondent's alcoholic beverage license to formal revocation or suspension proceedings.

20. Enrique Ramos was identified as the underage Investigative Aide No. 97033 in the Administrative Action filed against the Respondent by the Department. On February 17, 1998, Ramos was 18 years of age and his appearance on February 17, 1998, was that of a person under the age of 21 years.

21. On February 17, 1998, Enrique Ramos was working with Agents McKenzie and Ekstrand in an attempt, as an underage

    Investigative Aide, to purchase alcoholic beverages from the licensed premises.

22. Before beginning work on February 17, 1998, Ramos was instructed by Agents McKenzie and Ekstrand not to attempt to deceive anyone about his age or appearance. Agents McKenzie and Ekstrand checked Ramos' identification (a valid State of Florida driver's license which indicated his age to be 18 years) and found his identification to be legitimate and his identification not misleading as to his age or appearance.

23. Ramos was only allowed to carry into the licensed premises his identification and the money furnished by the Department for the purchase of the alcoholic beverage.

24. At approximately 4:15 p.m. on February 17, 1998, Ramos entered the licensed premises and went to the beer cooler and obtained a six-pack of Budweiser Beer (12-ounce bottles) and approached the check-out counter and placed the beer on the counter. The clerk sold Ramos the beer without checking his identification. Ramos paid the clerk $5.19 for the beer. Ramos took possession of the beer from the clerk and exited the licensed premises where he subsequently turned the beer over to Agents McKenzie and Ekstrand. The clerk was later identified as Ravin E. Bradshaw. Bradshaw was charged with selling an alcoholic beverage to a person under the age of 21 in violation of Section 562.11, Florida Statutes.

25. Respondent's back-up cash register tapes (Respondent's Exhibit number 2) do not reflect a beer sale during the period of time Ramos testified that he purchased the six-pack of Budweiser Beer on February 17, 1998. However, I find the testimonies of Ramos, Agent McKenzie, and Agent Ekstrand to be more credible concerning the purchase of the beer on February 17, 1998, than the back-up cash register tapes or the testimony of Bradshaw, Respondent's clerk and Jung I. Huang, Respondent's manager.

26. The testimony of Respondent's clerks were that they were instructed to "card" or check each alcoholic beverage or tobacco product purchaser's identification to determine if the purchaser was 21 years old or older. However, it was also the practice of Jung Huang and his wife, Yu Chin Lin, a.k.a Michelle, president of Green and White, Inc., to become angry with a clerk who was "carding" every customer. In some instances, both Huang and Michelle would advise a clerk not to card certain customers.

27. Respondent failed to comply with all the training and record-keeping requirements of the Responsible Vendor Program set out in Sections 561.701-561.706, Florida Statutes, notwithstanding the testimony of Jung Huang to the contrary and whose testimony I find lacks credibility.

    CONCLUSIONS OF LAW

    
    

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

29. Section 562.11(1)(a), Florida Statutes, provides as follows:

    (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. . . .

    
    

30. The Division of Alcohol Beverages and Tobacco (DABT) is statutorily empowered to suspend or revoke an alcoholic beverage license, such as the one held by Respondent, based upon any of the grounds enumerated in Section 561.29(1)(a), Florida Statutes, which in pertinent part provides:

    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 her or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States . . . or permitting another on

          
          

          the licensed premises to violate any of the laws of this state or of the United States

          . . . .

          
          

31. A literal reading of the language of Section 561.29(1), Florida Statutes, suggests that a licensee may have its license suspended or revoked based on a violation of state law committed by its agents, officers, servants, or employees on its licensed premises, regardless of the licensee's own personal fault or misconduct in connection with the unlawful activity. However,

    the courts of this state have consistently held to the contrary. Under the well-established case, a license may be suspended or revoked pursuant to Section 561.29(1)(a), Florida Statutes, only if it is determined that the licensee is culpably responsible for the violation as a result of its own negligence, intentional wrongdoing, or lack of diligence. Pic N' Save vs. Department of Business Regulation 601 So. 2d 245 (Fla. 1st DCA 1992) and the cases cited therein. Clearly Respondent's sales clerks violated Section 562.11(1)(a), Florida Statutes, when they sold beer to those persons under the age of 21 years. Likewise, it also clear that Respondent is culpably responsible for those violations in that it was through the negligence, intentional wrongdoing, or lack of diligence on the part of its officers (Manager Huang and the president of the corporation, Yu Chin Lin) that these violations occurred. Furthermore, it has been shown that Respondent has failed to comply with the all the training and record-keeping requirements of the Responsible Vendor Program set out in Sections 561.701 - 561.706, Florida Statutes, and therefore would not be entitled to any of the benefits under that program.

32. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 ( Fla. 1st DCA 1977). To meet this burden, the Department must establish those facts by

clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection vs. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987); Pic N' Save vs.

Department of Business Regulation, 601 So. 2d. 245 (Fla. 1st DCA 1992. DABT has shown by clear and convincing evidence that Respondent, through its employees, did sell alcoholic beverages to persons under the age of 21 years on December 5, 1997, January 7, 1998, and February 17, 1998, and has proven the allegations of the Administrative Action filed in this case by clear and convincing evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order suspending Respondent's alcoholic beverage license No.

63-02541, 2APS for a period of seven days and it is further

recommended that Respondent be required to pay an administrative fine of $1,000.00 to the Division of Alcoholic Beverages and Tobacco.

DONE AND ENTERED this 10th of August, 1999, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1999.

COPIES FURNISHED:

Elsa Lopez Whitehurst, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Tony Dodds, Esquire 825 East Main Street

Lakeland, Florida 33801

Joseph Martelli, Director Division of Alcoholic Beverages

and Tobacco

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

William Woodyard, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 98-002008

Orders for Case No: 98-002008