STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on March 20, 2008, Fort Lauderdale, Florida, before Administrative Law Judge June C. McKinney of the Division of Administrative Hearings, pursuant to the authority set forth in Sections

120.569 and 120.57(1), Florida Statutes (2007).

APPEARANCES

For Petitioner: Michael J. Wheeler, Esquire

Department of Business and Professional Regulation

Northwood Centre, Suite 40 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Santonax Danastor

CDSM Enterprises, Inc. 2950 Northwest 172 Terrace

Miami, Florida 33056

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,1 by selling an alcoholic beverage to Petitioner's undercover investigative aide on November 17, 2006; and (b) if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

On or about December 13, 2007, Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner) issued an Administrative Action, alleging that Respondent CDSM Enterprises, Inc., d/b/a Triunfo Food Market (Respondent) had failed to comply with the beverage law by selling an alcoholic beverage to an underage investigative aide. According to the Administrative Action, Respondent had violated Sections 562.11 (1)(a) and 561.29 (1)(a), Florida Statutes.

On or about December 31, 2007, Respondent requested a hearing disputing the issues of material fact. Petitioner referred the request to the Division of Administrative Hearings on January 22, 2008.

On February 5, 2008, the undersigned issued an Order scheduling the hearing. The final hearing was held in Fort Lauderdale, Florida, on March 20, 2008.

At hearing, Petitioner presented the testimony of Investigative Aide #0057 and Special Agent David Kordzikowski. Petitioner offered a six pack of Guiness Stout beer, which was admitted into evidence as Exhibit number 1. Respondent presented the testimony, of its owner, Danastor.

The proceeding was recorded but not transcribed. The parties were given until March 31, 2008, to file Proposed Recommended Orders. The Petitioner filed a Proposed Recommended Order, which has been considered in the preparation of this Recommended Order. The Respondent did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. Respondent holds License No. 16-17678, Series 2 APS. The license authorizes Respondent to sell packaged beer and wine at the licensed premises, which is located at 2088-90 North, University Drive, Sunrise, Florida. Mr. Danastor is the owner of Triunfo Food Market, a relatively small store. He has been licensed to sell at that store for approximately two years.

2. Mr. Danastor has a personal and business rule to ask for identification before selling alcohol.

3. On December 7, 2007, Petitioner performed an undercover random compliance check of Respondent's store while checking 15 other locations to see if the various stores were selling alcoholic beverages to underage patrons.

4. Investigative Aide #0057, acted as Petitioner's underage operative/investigative aide on December 7, 2007. The Investigative Aide #0057, who was born on March 28, 1988, was an 18-year-old female, at the time of the incident.

5. Investigative Aide #0057 entered Triunfo Food Market, Inc., walked straight to the beer cooler and took out a six-pack of Guiness Stout beer. She then walked to the register to purchase the beer. No other customers were in the store at the time.

6. Mr. Danastor assisted Investigative Aide #0057 with her purchase of beer. The aide placed the six-pack of beer on the counter and handed Mr. Danastor the money to pay for it.

7. Mr. Danastor accepted the money, selling the aide the beer. Mr. Danastor did not ask the aide's age or check her identification. Mr. Danastor placed the beer in the bag and gave it to the aide.

8. After the purchase, the Investigative Aide exited the store and gave the six-pack of beer to Petitioner's agent, who had witnessed the transaction in the store from outside.

9. Petitioner's agents entered the store and spoke with Mr. Danastor. The agents informed Mr. Danastor of the underage sale and provided him a Notice to Appear. Mr. Danastor told the agents, "I am sorry. I didn't know the purchase was alcohol."

   CONCLUSIONS OF LAW

   
   

10. 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.

11. 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).

12. 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.

    
    

13. Section 561.29(1)(a), Florida Statutes, 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 violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages. . . .

          
          

14. In construing Subsection 561.29(1), Florida Statutes, Florida's appellate courts have consistently held a licensee liable only for his or her personal misconduct. In Pic N' Save, supra, at 250, the court stated:

    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 violation of the beverage law committed by a licensee 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 licensee. 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.

    
    

15. The facts in this case demonstrate that Respondent sold beer to an underaged individual, Investigative Aide #0057, without checking her identification, even though Respondent had a business policy not to sell alcohol to minors.

16. Mr. Danastor's own actions on December 7, 2007, demonstrate misconduct. As the owner of Triunfo Food Market, Inc., who was aware of the law that prohibits underage alcoholic beverage sales, Mr. Danastor had a responsibility to know which beverages were alcoholic in his store.

17. Mr. Danastor's failure to make any effort to check the Investigative Aide's identification or make any inquiry as to her age is not pardoned by his assertion that he didn't know Guiness Stout beer was alcoholic.

18. Mr. Danastor is personally responsible for the violation as a result of his own negligence of not knowing the alcoholic beverages in his store and failure to check the investigative aide's identification.

19. Petitioner has met the burden to show by clear and convincing evidence that the licensee failed to demonstrate both diligence and culpable responsibility. Further, it has been shown that the violation is due to the licensee's own negligence and wrongdoing.

20. There is sufficient evidence in this matter to sustain a sanction of the beverage license at issue. The misconduct is

personal to the licensee.

RECOMMENDATION

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

RECOMMENDED:

That Petitioner enter a final order finding Respondent to have committed one violation of Subsection 562.11(1)(a), Florida Statutes, and imposing an administrative penalty of a seven-day suspension of Respondent's license and a $1,000.00 fine.

DONE AND ENTERED this 2nd day of April, 2008, in Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

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 2nd day of April, 2008.

ENDNOTE

1/ Unless otherwise indicated, all references are to the 2007 Florida Statutes.

COPIES FURNISHED:

Michael J. Wheeler, Esquire Department of Business and

Professional Regulation Northwood Centre, Suite 40 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Santonax Danastor

CDSM Enterprises, Inc. 2950 Northwest 172 Terrace

Miami, Florida 33056

Steven M. Hougland, Ph.D., Director Division of Alcoholic Beverages

and Tobacco

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

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: 08-000359

Orders for Case No: 08-000359