STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

) NABIL J. YAZGI, d/b/a EXPRESS ) FOOD STORE, )

)

Respondent. )

Case No. 04-1154

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on October 7, 2004, in Jacksonville, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Tonia Yazgi, Esquire

The Yazgi Law Firm 3123 Beach Boulevard

Jacksonville, Florida 32207

STATEMENT OF THE ISSUES

The issues are as follows: (a) whether Respondent violated Sections 562.11(1)(a) and 561.29(1)(a), Florida Statutes (2003), by selling an alcoholic beverage to Petitioner's undercover investigative aide on January 15, 2004; and (b) if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

On or about January 23, 2004, Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner) issued an Administrative Action, alleging that Respondent Nabil J. Yazgi d/b/a Express Food Store (Respondent) had filed to comply with the beverage law by selling an alcoholic beverage to an underaged investigative aide. According to the Administrative Action, Respondent had violated Sections 562.11(1)(a) and 561.29 (1)(a), Florida Statutes (2003).

On or about February 12, 2004, Respondent requested a formal hearing to contest the allegations in the Administrative Action. Petitioner referred the request to the Division of Administrative Hearings on April 2, 2004.

On April 19, 2004, the undersigned issued a Notice of Hearing by Video Teleconference. The notice scheduled the hearing for June 11, 2004.

On May 20, 2004, Respondent filed an unopposed Motion for Continuance. On May 21, 2004, the undersigned issued an Order Granting Continuance and Placing Case in Abeyance pending resolution of a Duval County criminal court action involving the incident that forms the underlying basis of the instant case.

On June 28, 2004, Petitioner filed a Motion to Resume Proceedings. On June 30, 2004, Respondent filed a Response to Petitioner's Motion to Resume Proceedings and Motion to Dismiss.

On July 2, 2004, Petitioner filed a Response to Respondent's Motion to Dismiss. That same day, Respondent filed a Response to Petitioner's Response to Motion to Dismiss. On July 7, 2004, Petitioner filed a Second Response to Respondent's Motion to Dismiss.

On July 12, 2004, the undersigned issued two orders. The first Order denied Respondent's Motion to Dismiss. The second Order rescheduled the hearing for September 14, 2004.

On September 8, 2004, Respondent filed a Motion to Continue Proceedings on Petitioner's behalf. The motion stated that the hearing should be rescheduled due to hurricane damage to the office of Respondent's counsel and to some of the witnesses' residences.

On September 10, 2004, the undersigned issued an Order Granting Continuance and Rescheduling Hearing. The Order scheduled the hearing for October 7, 2004.

During the hearing, Petitioner presented the testimony of three witnesses. Petitioner also offered two exhibits that were accepted as evidence.

Respondent testified on his own behalf and presented the testimony of four additional witnesses. Respondent offered two exhibits that were accepted into evidence.

The court reporter filed the Transcript on October 10, 2004.

Respondent filed a Proposed Recommended Order on

October 21, 2004. Petitioner filed a Proposed Recommended Order October 22, 2004.

All citations herein refer to Florida Statutes (2003) unless otherwise indicated.

FINDINGS OF FACT

1. Respondent holds License No. BEV2601975, Series 1-APS. The license authorizes Respondent to sell beer and wine at the licensed premises, which is located at 1762 Sheridan Street, Jacksonville, Florida.

2. Respondent is the sole owner of Express Food Store (the store), a relatively small convenience store. He has been licensed to sell beer and wine at the store since 1982. In the approximately 22 years that Respondent has owned and operated the store, he has no knowledge of an incident where he

   personally sold alcohol to an underage person prior to this case.

3. Respondent has a personal and business rule not to sell alcohol to underaged persons. He usually checks an individual's identification before selling him or her alcohol and tobacco because underage persons frequently attempt to purchase these products from the store. He trains his employees not to sell alcohol to underaged persons. He posted Budweiser and Miller Lite signs in the store that say "We I.D."

4. On January 15, 2004, Petitioner performed undercover compliance checks of licensed establishments, which were placed on a list by random sample. The store was on the list to be checked.

5. At approximately 6:30 p.m., Respondent was at the store working behind the checkout counter in the capacity of owner and cashier. The store was relatively busy with several customers. Respondent was waiting on the customers, and in between customers, he was training a new employee, who was having some difficulty operating the lottery machine located near the cash register. Respondent was eager to keep the customers moving as fast as he could move them.

6. Jerry Horky acted as Petitioner's underage operative/investigative aide on January 15, 2004. Mr. Horky, who was born on March 28, 1984, was 19-years-old. Mr. Horky was

   appropriately groomed and dressed. In other words, he was clean-shaven and not dressed up or down, but was wearing jeans and a shirt with a collar.

7. Petitioner's agents took a picture of Mr. Horky on January 15, 2004. The copy of Mr. Horky's picture that Respondent offered in evidence is of a very poor quality. However, at the time of the hearing, Mr. Horky did not have the appearance of someone over the age of 21. To the contrary, he was average in stature and decidedly youthful in appearance.

8. Mr. Horky, Agent Raymon Arguelles, and Agent Elizabeth Anno drove to the store and parked in front so that they could see inside the store. Petitioner's agents checked to make sure that Mr. Horky had his driver's license showing his correct age and that he did not have any false identification. The agents then instructed Mr. Horky to attempt to buy an alcoholic beverage from the store using funds provided by Petitioner. The agents specifically told Mr. Horky to answer truthfully if anyone inquired about his age.

9. Following the instructions of Petitioner's agents, Mr. Horky entered the store, walked to the beer cooler,

   retrieved one 12-ounce Budweiser beer, and walked to the counter to wait his turn in line behind at least one customer.

10. Respondent took care of the customer in front of

    
    

    Mr. Horky. Respondent then looked at Mr. Horky and asked if he

    could help him. Without saying a word, Mr. Horky placed the can of beer on the counter and handed Respondent the money to pay for it.

11. Respondent accepted the money, selling Mr. Horky the beer. Respondent did not ask Mr. Horky's age or check his identification. Mr. Horky exited the store and gave the can of beer to Petitioner's agents, who had witnessed the transaction from their parked car.

12. Petitioner's agents waited until all the customers left the store. Then they entered the store and spoke with Respondent. As soon as they identified themselves, Respondent asked if Mr. Horky was underaged. When the agents responded affirmatively, Respondent stated that he did not check

    Mr. Horky's identification because he thought Mr. Horky looked old enough.

13. Agent Anno told Respondent how surprised she was that he had sold Mr. Horky a beer because: (a) She remembered him from the time that she first began working for Petitioner in 1992 when one of Respondent's employees was cited on two occasions for selling alcohol to an underaged person; (b) Petitioner had not received a complaint that Respondent was violating the beverage laws; and (c) Petitioner had never cited Respondent for personally violating the beverage laws.

14. Mr. Horky worked for Petitioner as an underage investigative aide from the age of 16 until he reached age 20. During that period of time, Mr. Horky participated in 754 compliance check operations. In 504 of the operations, the licensed establishments refused to sell him alcohol. Approximately 250 licensed establishments sold him alcohol.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2004).

16. Petitioner has the burden of proving by clear and convincing evidence that Respondent violated Sections 562.11(1)(a) and 561.29(1)(a), Florida Statutes. See Ferris v.

    Turlington, 510 So. 2d 292, 294 (Fla. 1987); Pic N' Save Central Florida, Inc. v. Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, 601 So. 2d 245, 249 (Fla. 1st DCA 1992).

17. Section 562.11(1)(A), Florida Statutes, provides as follows in relevant part:

    (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.

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

    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 violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages . . . .

          
          

19. Section 777.201(1), Florida Statutes, states as follows:

    1. A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence or the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

       
       

20. Florida Administrative Code Rule 61A-3.052 provides as follows in relevant part:

    1. A licensee who has been cited in an administrative action for violations of Sections 562.11(1)(a) and 859.06, Florida

       Statutes, shall have a defense to any administrative action if the underage person falsely evidenced that he was of legal age to purchase the alcoholic beverage, cigarettes, or tobacco products or consume the alcoholic beverage product and the appearance of the person was such that an ordinarily prudent person would believe the person is of legal age to purchase or consume those products, and if the licensee attempted to verify the person's age by checking . . . identification . . . .

       
       

21. In construing Section 561.29(1), Florida Statutes, Florida's First District Court of Appeals has consistently held a licensee liable only for his or her personal misconduct. In Pic N' Save Central Florida, Inc. v. Department of Business and

    Professional Regulation, Division of Alcoholic Beverages and Tobacco, 601 So. 2d 245, 250 (Fla. 1st DCA 1992), the court stated as follows:

    Although the statutory language in section 561.29(1) has since 1957 spoken in terms of the Division's power to revoke or suspend a beverage license for violations of the beverage law committed by a licenser, or "its agents, officers, servants, or employees," the courts of this state have consistently construed and applied this disciplinary authority only on the basis of personal misconduct by the license. Thus, while an employee may violate the beverage law in making illegal sales of alcoholic beverages to minors, the licensee's culpable responsibility therefore is measured in terms of its own intentional wrongdoing or its negligence and lack of diligence in training and supervising its employees regarding illegal sales. This limitation on the licensee's liability is consistent with the notion, also long recognized by the

    courts of this state, that one's license to engage in a occupation is not to be taken away except for misconduct personal to the license.

    
    

22. The instant case, however, is not a case where a licensee's employee/agent sold an alcoholic beverage to an underage person, subjecting the licensee to sanction only if it appears that the licensee was negligent and took no care to diligently attempt to prevent such sales. See Pic N' Save Central Florida, Inc., 601 So. 2d at 250 (three illegal sales by three employees separated in time could not provide an inference of negligence and lack of due diligence by the licensee); Surf

    Attraction, Inc. d/b/a One Stop Food v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 480 So. 2d 1354, 1357 (Fla. 1st DCA 1985)(sanctions may be imposed for single violation by a corporate officer upon proof of lack of due diligence, but licensee not strictly liable for single violation of beverage law by treasurer of corporation who approved sale based on purchaser's use of a Missouri traffic ticket and a photo identification card from a community center); Mel Heifetz d/b/a Key Wester Inn v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So.

    2d 1277 (Fla. 1st DCA 1985)(owner's negligence in supervising employees was an ultimate finding of fact within realm of hearing officer's discretion); Charlotte County Lodge v. State

    Department of Business Regulations, Division of Alcoholic Beverages and Tobacco, 463 So. 2d 1208 (Fla. 1st DCA 1985)(failure of lodge to supervise its employees so as to prevent gambling on premises was not established so as to warrant imposition of a fine or suspension of its license); G & B of Jacksonville, Inc., d/b/a Out of Sight v. State Department

    of Business Regulation, Division of Beverage, 371 So. 2d 139 (Fla. 1st DCA 1979)(suspension of license upheld where six employees engaged in similar but separate open and gross lewd acts with different persons on licensed premises on two different days and where licensee either condoned or negligently overlooked such activities); Woodbury v. State Beverage Department, 219 So. 2d 47 (Fla. 1st DCA 1969)(improper suspension of license where owner's bartender, in owner's absence, made sale to party who appeared to be of age and who stated that his identification had been previously checked; and Trader Jon, Inc. v. State Beverage Department, 119 So. 2d 735, 739-740 (Fla. 1st DCA 1960)(licensee not negligent in failing to prevent employee from selling one beer each to three minors).

23. In Holland v. State Beverage Department, 213 So. 2d 310, 311 (Fla. 1st DCA 1968), the court considered the revocation of a beverage license based on allegations that the licensee personally sold a minor two quarts of beer. The court held that there was a lack of competent substantial evidence to

    support a finding that the licensee had sold the minor alcohol where the licensee had been found not guilty in a criminal trial and where there was no evidence to corroborate the minor's discredited testimony. See Holland 213 So. 2d at 311.

24. In Pandolfi v. Department of Business & Professional Regulation, 698 So. 2d 569 (Fla. 5th DCA 1997), a 20-year-old undercover agent bought a beer from the licensee after interceding in the conversation between the licensee and a customer, who were discussing their respective radiation treatments for their respective cancers. The licensee in Pandolfi had a 12-year violation-free record. The Pandolfi court looked at the exemplary history of the licensee, the circumstances of the incident, and the actions of the agents to find error in the suspension of the beverage license. See

    Pandolfi, 698 So. 2d at 597. Pandolfi is factually indistinguishable from the instant case.

25. Respondent has a 22-year violation-free record. He was attempting to train a new employee and wait on customers at the same time. He sold a beer to a 19-year-old undercover operative without making any inquiry as to his age or identification.

26. Respondent is not entitled to defenses set forth in Section 777.201(1), Florida Statutes, and Florida Administrative Code Rule 61A-3.052. To the contrary, Petitioner merely

provided Respondent with an opportunity to violate the beverage laws and Respondent promptly availed himself of that opportunity. Even so, under Pandolfi, Respondent cannot be said to have violated Section 561.29(1)(a), Florida Statutes, knowingly, willfully, or with a lack of due diligence or flagrant or chronic misconduct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

Petitioner enter a final order dismissing the charges against Respondent

DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 3rd of November, 2004.

COPIES FURNISHED:

Sorin Ardelean, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Captain Cynthia C. Britt Division of Alcoholic Beverages

and Tobacco

Department of Business and Professional Regulation

7960 Arlington Expressway, Suite 600

Jacksonville, Florida 32211

Tonia Yazgi, Esquire 3123 Beach Boulevard

Jacksonville, Florida 32207

Jack Tuter, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Leon Biegalski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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: 04-001154

Orders for Case No: 04-001154