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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs NOW, INC., AND AZAM, MOHAMMED MONSURUL, D/B/A RED BARN, 98-003598 (1998)

Court: Division of Administrative Hearings, Florida Number: 98-003598 Visitors: 5
Petitioner: DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO
Respondent: NOW, INC., AND AZAM, MOHAMMED MONSURUL, D/B/A RED BARN
Judges: CHARLES C. ADAMS
Agency: Department of Business and Professional Regulation
Locations: Daytona Beach, Florida
Filed: Aug. 10, 1998
Status: Closed
Recommended Order on Wednesday, December 9, 1998.

Latest Update: Jul. 15, 2004
Summary: Should discipline be imposed on the alcoholic beverage license held by Respondents for selling, serving, or giving an alcoholic beverage, on the licensed premises, to a person under the age of 21 in violation of Section 562.11, Florida Statutes?Owner of a licensed premises sold beer to a minor.
98-3598.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 98-3598

) NOW, INC. and AZAM, MOHAMMED ) MONSURUL d/b/a RED BARN, )

)

Respondents. )

)


RECOMMENDED ORDER


Notice was provided and on October 19, 1998, in Daytona Beach, Florida, a formal hearing was held in this case.

Authority for conducting the hearing is set forth in Sections


120.569 and 120.57(1), Florida Statutes. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES


For Petitioner: Miriam S. Wilkinson, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007


For Respondent: Craig T. James, Esquire

Post Office Box 2087 Deland, Florida 32721-2087


STATEMENT OF THE ISSUES


Should discipline be imposed on the alcoholic beverage license held by Respondents for selling, serving, or giving an

alcoholic beverage, on the licensed premises, to a person under the age of 21 in violation of Section 562.11, Florida Statutes?

PRELIMINARY STATEMENT


In the Administrative Action before the Division of Alcoholic Beverages and Tobacco, Case No. AY 74 970726, Respondents' were accused of a violation of Section 562.11, Florida Statutes, in that Mohammed Monsurul Azam sold, served, or gave an alcoholic beverage, on the licensed premises, to a person under the age of 21. As a result Petitioner seeks to revoke, suspend, or impose an administrative fine, or a combination of those penalties against the alcoholic beverage license,

no. 7402731, series 2APS, held by Respondents. Respondents' disputed the factual allegations in the administrative action. As a consequence, the case was forwarded to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing in accordance with Section 120.57(1), Florida Statutes. That formal hearing was conducted on the aforementioned date.

In support of its case Petitioner presented as witnesses, Special Agent Walter Fredericks, Gregory Campbell, Brian Kucera, Glenda Campbell, and Evy Jean Kucera. Petitioner's Exhibits 1 and 2 were admitted. Respondent presented Mohammad Z. Hasan, Mohammed Monsurul Azam, Rizwan Hussain, Gregory Campbell, and Glenda Campbell, as its witnesses. Respondents' Exhibit 1 was

admitted. Petitioner presented Special Agent Fredericks as a rebuttal witness.


At Petitioner's request official recognition was made of Chapter 562, Florida Statutes.

A hearing transcript was prepared and filed with the Division of Administrative hearings on November 17, 1998. The parties filed proposed recommended orders on November 25, 1998. Those proposals have been considered in the preparation of the recommended order.

FINDINGS OF FACT


  1. The Division of Alcoholic Beverages and Tobacco ("Division") is empowered to revoke or suspend the alcoholic beverage license of any person holding a license under the Beverage Law for certain classes of violations enumerated in Sections 561.29, Florida Statutes. In addition, or alternatively, the Division may impose a civil penalty against a licensee for those violations. See Section 561.29, Florida Statutes.

  2. The Division issued an alcoholic beverage license to Now, Inc. and Azam, Mohammed Monsurul d/b/a Red Barn, license no. 7402731, series 2APS, which was in effect at all times relevant to this inquiry. That license is subject to the

    disciplinary opportunities created in Section 561.29, Florida Statutes.

  3. The licensed premises are located at 805 West New York Avenue, Deland, Florida. Mr. Mohammed Monsurul Azam owns a one- third interest in Now, Inc. His two brothers own the remaining interest in one-third shares.


  4. Mr. Gregory Campbell was born on October 1, 1979. On May 22, 1998, Mr. Campbell purchased a keg of beer from Mr. Azam at the licensed premises in Deland, Florida. In the transaction Mr. Campbell paid money directly to Mr. Azam for the purchase of the beer. Neither Mr. Azam nor any other person working for Now, Inc. asked Mr. Campbell to produce identification to establish Mr. Campbell's age. Mr. Campbell had purchased alcoholic beverages from the Red Barn on three or more occasions before this date and had not been asked for identification on the other occasions. Mr. Azam was among the persons from whom Mr. Campbell purchased beer at the Red Barn on prior occasions.

  5. When Mr. Campbell purchased the beer from Mr. Azam, a receipt for the purchase was prepared by Mr. Azam.

  6. Mr. Azam wrote Mr. Campbell's name and telephone number down in association with the purchase of the beer on May 22, 1998.

  7. When Mr. Campbell purchased the beer on May 22, 1998, he was accompanied by Mr. Brian Kucera and Clifton Wilson. Neither

    of those individuals was directly involved in the purchase of the beer to the extent of producing identification in support of the purchase or paying money to Mr. Azam or another employee(s) of Now, Inc.

  8. The keg of beer that was purchased from Mr. Azam on


    May 22, 1998, was placed in an automobile that Messrs. Campbell, Kucera, and Wilson were riding in. Those three persons then drove away from the licensed premises with the beer.

  9. The beer in the keg was not consumed. At the insistence of Mrs. Glenda Campbell, Gregory Campbell's mother, the beer was returned to the licensed premises. At that time a deposit was returned for the keg and keg tap, but not for the contents of the keg. Mr. Campbell had paid for the contents, and for the deposit on the keg and keg tap when the beer was purchased on May 22, 1998.

    CONCLUSIONS OF LAW


  10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

  11. Through this administrative action Petitioner intends to impose discipline on the Respondents. For that reason, Petitioner must prove the allegations in the administrative action by clear and convincing evidence. See Pic N' Save v. Dept. of Business Reg., 601 So. 2d 245 (Fla. 1st DCA 1992).

  12. Section 562.11, Florida Statutes, makes it unlawful for any person to sell alcoholic beverages to a person under 21 years of age.

  13. Section 561.29(1)(a), Florida Statutes, permits the Petitioner to revoke or suspend the beverage license of a licensee for violations by the licensee on the licensed premises of any of the laws of the State of Florida. In turn, Section 561.29(3), Florida Statutes, allows the Petitioner to impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, referring to Chapter 561, Florida Statutes. The amount of that penalty shall not exceed $1000 per single transaction.

  14. Clear and convincing evidence has been produced to prove that Mohammed Monsurul Azam, licensee and owner under license no. 7402731, series 2APS, issued by Petitioner, sold an alcoholic beverage, to wit beer, to Gregory Campbell, who was under 21 years of age on May 22, 1998, on the licensed premises, without Mr. Azam or any other employee asking for valid identification from Mr. Campbell.

  15. Thus, Mr. Azam violated Section 562.11, Florida Statutes, and Respondents are subject to the penalties set forth in Section 561.29(1)(a) and (3), Florida Statutes.

  16. In consideration of the violation, a seven-day suspension of the subject alcoholic beverage license together with a $1000 fine is appropriate.

RECOMMENDATION


Upon consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED:


That a final order be entered finding that Mohammed Monsurul Azam sold Gregory Campbell, who was under the age of 21, an alcoholic beverage, to wit beer, contrary to Sections 561.29(1)(a) and (3) and 562.11, Florida Statutes, and imposing a suspension of seven days and a civil penalty of $1000 against beverage license no. 7402731, series 2APS.


DONE AND ENTERED this 9th day of December, 1998, in Tallahassee, Leon County, Florida.


CHARLES C. ADAMS

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 9th day of December, 1998.


COPIES FURNISHED:


Miriam S. Wilkinson, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Craig T. James, Esquire Post Office Box 2087 Deland, Florida 32721-2087


Richard Boyd, Director Division of Alcoholic

Beverages and Tobacco Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007


Lynda L. Goodgame, General Counsel 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: 98-003598
Issue Date Proceedings
Jul. 15, 2004 Final Order filed.
Dec. 09, 1998 Recommended Order sent out. CASE CLOSED. Hearing held 10/19/98.
Nov. 25, 1998 Petitioner`s Proposed Recommended Order filed.
Nov. 25, 1998 (C. James) Recommended Order (for judge signature) (filed via facsimile).
Nov. 17, 1998 Transcript of Proceedings filed.
Oct. 19, 1998 CASE STATUS: Hearing Held.
Oct. 16, 1998 Subpoena Duces Tecum (3) (filed via facsimile).
Sep. 28, 1998 (Miriam Wilkinson) Notice of Appearance and Substitution of Counsel for Department of Business and Professional Regulation (filed via facsimile).
Aug. 28, 1998 Notice of Hearing sent out. (hearing set for 10/19/98; 10:00am; Daytona Beach)
Aug. 26, 1998 Joint Response to Initial Order filed.
Aug. 17, 1998 Initial Order issued.
Aug. 10, 1998 Agency Referral Letter; Administrative Action; Request for Hearing Form filed.

Orders for Case No: 98-003598
Issue Date Document Summary
Dec. 30, 1998 Agency Final Order
Dec. 09, 1998 Recommended Order Owner of a licensed premises sold beer to a minor.
Source:  Florida - Division of Administrative Hearings

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