The Issue The issues presented are those set forth in a notice to show cause filed by Petitioner against Respondents in Case No. AY-74-87-0201. In particular, it is alleged that on March 16, 1988, October 21, 1988 and February 24, 1989, that the Respondents or their agents, servants or employees sold alcoholic beverages to minors in violation of Sections 561.29, Florida Statutes and 562.11(1)(a), Florida Statutes.
Findings Of Fact At all times which pertain to this Notice to Show Cause/Administrative Complaint, Respondents were doing business at 238-240 Atlantic Avenue, Daytona Beach, Volusia County, Florida under the business name Speidi Shack and pursuant to a beverage license issued by Petitioner. That license number was and continues to be number 74-01802, Series 2-COP. On March 16, 1988, and again on October 21, 1988, Michael Vanorder, whose birthday is March 27, 1969, purchased a Light beer from employees of the Respondents in the licensed premises. On February 24, 1989, Tina May purchased a Light beer from an employee of the Respondents in the licensed premises. Her date of birth is August 4, 1968. The Light beers that were purchased by those two individuals are alcoholic beverages. In the incident of March 16, 1988, Vanorder entered the licensed premises as an underage operative of the Petitioner. The purpose of underage operatives is to assist the Petitioner in investigations to ascertain whether suspected alcoholic beverage license holders will sell alcoholic beverages to minors. Vanorder was provided money from the Petitioner to purchase the alcoholic beverage if the licensees, their agents or employees would sell. Betty Warner and Tanya Pandarakis, who are Alcoholic Beverage Agents for Petitioner were in the bar and watched as Vanorder was asked by the bartender what Vanorder wanted. Vanorder indicated that he wanted a Light beer. Mark Barker, the bartender, brought a Light beer to Vanorder and accepted payment for that beer. In this purchase, Vanorder was not asked to produce any identification nor was he asked how old he was. Vanorder was under instructions from Petitioner's agents to validly respond to any questions about his age and to provide accurate identification in support of his remarks. The beer that he was given had been opened by the bartender. These events occurred around 8:35 p.m. The beer that was purchased was then given from Vanorder to Warner. Barker was then arrested by Warner and another Alcoholic Beverage Agent, Fred Dunbar, for selling alcoholic beverages to a minor. The arrest occurred when Dunbar entered the licensed premises following the sale and identified himself as an Alcoholic Beverage Agent. Prior to leaving the premises on that occasion, Respondent John M. Macker was told of the arrest and why an investigation had been made in the first place about suspected sales to minors in the licensed premises. Macker came the next day to meet with Dunbar at the invitation of Dunbar. Macker was told that a complaint file would remain open and that underage operatives would continue to be sent into the licensed premises to see if Macker had corrected the problem of selling to underage patrons. Respondent Macker promised that he would have closer supervision and would give training to his employees about proper identification techniques for sales of alcoholic beverages in the licensed premises. An official notice was given to the Respondents, a copy of which may be found as Petitioner's Exhibit No. 3 which was admitted into evidence. That notice is dated March 17, 1988 and is issued from Dunbar and is acknowledged as having been received by Respondent Macker. It identifies the facts of the sale to a minor and the arrest of Mark Barker and warns Respondents that if the violation occurs again, that Respondents could be charged with the violation of March 16, 1988 and any future violations. Throughout this warning phase associated with the sale of March 16, 1988 Respondent Macker was cooperative in his attitude. As forecast, Petitioner sent Vanorder back into the licensed premises on October 21, 1988 to see if Respondents, their agents, servants or employees would sell him alcoholic beverages. Beverage Agent John Szabo, Agent Dunbar, Lt. Powell and Vanorder went to the licensed premises on that evening. Their activities at the licensed premises commenced around 8:55 p.m. At this time, there were around 10-20 patrons in the bar. Szabo went in first and sat down at the bar and ordered a beer. Vanorder came in some 2-3 minutes later and sat down at the bar. A white female bartender who was identified later as Beth Ann Marsden approached Vanorder and asked him what she could get for him. He asked for a Bud Light. The bartender went to the cooler and came back with an open can of Bud Light and said that the cost of that beer would be $1.25. Vanorder paid her and she gave him back change. Vanorder then went outside the licensed premises and gave the beer to Dunbar. During the course of this purchase, Vanorder was not asked his age or asked for any form of identification which would demonstrate his age. As before, Vanorder was prepared to show a valid identification and give his correct age. After Dunbar was given the beer, he came into the licensed premises and he and Szabo confronted the bartender with the fact that she had sold beer to an underaged patron. They asked if the owner was on the premises and she said that he was not. The bartender was then charged with selling to a minor. She was given a Notice of Appearance for October 25, 1988 which constituted of a letter of final warning to the licensee. A third phase of the investigation occurred on February 24, 1989 when Tina May, an underaged operative for the Petitioner assisted in the investigation of sales to minors. Around 10:50 p.m., Officer Szabo, Beverage Officer Sullivan and Tina May went to the licensed premises. Szabo went in the bar first. One customer was in the bar. Szabo asked for a beer and was asked for his identification and showed his license and was served a beer. Before Tina May entered the license premises, she had been instructed to dress in normal attire and to carry her drivers license and to tell the truth about her age and to give the correct identification. Once inside the licensed premises, May sat where she could be seen by Officer Szabo. The other patron left the bar. Around 11:00 p.m., May was approached by Beth Ann Marsden who asked May what she wanted. May replied that she wanted a Bud Light. The bartender asked for identification and a driver's license was produced which showed May to be underage. Marsden was seen to count on her fingers when shown the identification. She opened up a Bud Light beer for May and gave it to her and said that the price of the beer was $1.25. May gave her $5.00 and received change. She then gave the beer to Szabo. Szabo then told the bartender that he was a Beverage Officer. Marsden recognized Szabo from the prior incident with Vanorder on October 21, 1988. Marsden told Szabo that May was 21 years old. Szabo got the driver's license from May and showed it to the bartender who admitted that she had made a mistake and that she didn't look at the month of the birth. She had only looked at the year, 1968. Out of this incident, an Official Notice was prepared, a copy of which may be found as Petitioner's Exhibit No. 4 admitted into evidence. It sets out the violations of March 16, 1988, October 21, 1988 and February 24, 1989 and the intention of the Petitioner to file administrative charges against the Respondents for sales to minors. Since the Respondents were not there, the list was left with a Rosemarie Savini. That notice was served on November 2, 1989. Before the time of the final hearing in this case, the sole ownership of the licensed premises had been left with John M. Macker. Linda F. Williams no longer is involved with the license in question. Respondent Macker's principle business is that of a commercial fisherman. During the pendency of this investigation, he was gone a lot from his licensed premises because of his other work and relied on his employees to act appropriately concerning sales to minors. In the period 1985 until January, 1989, he had not experienced problems with this. He had posted notices around the bar about sales to minors and had instructed his employees about being careful not to sell to minors. He has calendars from beer distributors which assist in ascertaining the age of minors. March 16, 1988 was Barker's first day on the job, as was October 21, 1988 the first day on the job for Beth Ann Marsden. His instructions to his employees was to check identification if people did not look at least in their fifties or older than Respondent. Since these events, Respondent has taken more detailed steps and placed other signs to avoid sales to minors. He doesn't wish these problems to occur again and regrets that they happened on this occasion. On the other hand, he did not ask for help from the Petitioner after the October 21, 1988 incident as was offered. Following the third sale, he has moved into the licensed premises to maintain better control of the circumstance. No other incidents were reported to have occurred beyond that adjustment concerning sales to minors.
Recommendation Having considered the facts, and the conclusions of law reached, it is, RECOMMENDED that a Final Order be entered which fines the Respondents in the amount of $500 for these violations. DONE and ORDERED this 19th day of October, 1989, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2457 Those facts as suggested by the Petitioner are subordinate to facts found in this Recommended Order. COPIES FURNISHED: Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John B. Fretwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John M. Macker 238-240 North Atlantic Avenue Daytona Beach, Florida 32018
The Issue Whether or not no or about March 7, 1976, the Respondent, Mally Ray Ramer, a licensed vendor and/or his agent, servant or employee did sell, give serve or permit to be served, alcoholic beverages to wit: one six-pack of Busch Bavarian beer to a person, Jerry Lynn Scott and John Otey Hutchinson, under the age of 18, contrary to Section 562.11, Florida Statutes.
Findings Of Fact The Respondent, Mally Ray Ramer, as shown by Petitioner's Exhibit #2, admitted into evidence, is licensed by the State of Florida, Division of Beverage under license no. 13-295, series 2-APS for the period October 1, 1976 through September 30, 1977. These premises are located at 16610 West Highway 98, Panama City Beach, Florida. On arch 7, 1976, Jerry Lynn Scott and John Otey Hutchinson entered the premises of 16610 West Highway 98, Panama City Beach, Florida and purchased a six-pack of Busch Bavarian beer, an alcoholic beverage, from the Respondent, Mally Ray Ramer. Both Scott and Hutchinson were under the age of 18 at the time of purchase and were in fact 16 years old. They did not produce any identification and were not required to produce any identification prior to the purchase. The identification which Scott had, showed him to be 16 years of age. The Respondent claimed that these individuals had been on his premises before and had shown some identification.
Recommendation It is recommended that the Respondent, Mally Ray Ramer, have his beverage license suspended for a period of 30 days, for the violation as established in the administrative complaint. DONE and ENTERED this 29th day of November, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence Winson, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Mally Ray Ramer 1543 Mulberry Avenue Panama City, Florida 32401
The Issue The issue for determination is whether the Respondents or their employee sold an alcoholic beverage to a person under the age of 21, on December 22, 1988, in violation of section 562.11(1)(e), Florida Statutes. If a violation occurred, a recommendation regarding discipline must be made. In addition to the substantive issue, Respondents claim that the agency's procedures regarding administrative prosecution for beverage license violations are unconstitutional. This issue is preserved for the record, but is not determined here as this is an essentially judicial function. Carrollwood State Bank v. Lewis, 362 So. 2nd 110, 113-14 (Fla. 1st DCA 1978) cert den mem. 372 So. 2nd 467 (1979)
Findings Of Fact At all times pertinent to the allegation of the Notice to Show Cause, Respondents were doing business at 3200 South Orlando Drive, Sanford, Seminole County, Florida, as Cavalier Motor Inn, under alcoholic beverage license no. 69- 004675. On the afternoon of December 22, 1988, the Buccaneer Lounge at the Cavalier was busy with office Christmas parties. It was dark, crowded and noisy. In response to an earlier complaint, two investigators from the Division of Alcoholic Beverages and Tobacco (DABT) entered the lounge around 5:00 p.m. with an underage operative. That operative, Sherri Russell was born on August 18, 1971, thus was 17 years old in December 1988. She is a friend of the daughter of one of the investigators, David Ramey, and had worked for the agency as a volunteer operative on several prior occasions. Miss Russell entered the lounge with investigators Ramey and Glover a few feet behind her. She found a place in front of the bar, and the female bartender asked what she wanted to drink. She responded a "Bud Light"; the bartender told her how much it cost and got the drink. Miss Russell paid the bartender and took control of the drink from the bartender. At that, Investigator Ramey approached, removed the drink from Miss Russell and identified himself to the bartender. Miss Russell left the lounge with Investigator Glover. According to previous instructions, Miss Russell had no identification with her. She was told to respond truthfully if asked her age or if asked for identification. The money for the drink was provided by the investigators. The entire incident took about five minutes. The only person behind the bar was the female bartender. Co-Respondent, Cesare Polidoro, was standing approximately six to seven feet away from Miss Russell, in an opening in the bar, with a clear view of the transaction. As Investigator Ramey spoke to the bartender, Cesare Polidoro identified himself as the owner and the three moved into another room to talk. The only person working in the lounge on December 22, 1988, was the female bartender, Sylvia Wilson. Another employee was out sick. Cesare Polidoro was there to keep order and to fetch change, if necessary, but he never tends bar and he did not assist on this occasion. Even though the lounge was extremely busy, he did not call to have his partner come help. Although he did not anticipate the one employee would be out sick, Cesare Polidoro did anticipate the crowd on December 22, 1988. There were two parties scheduled in the lounge for around 4:30 or 5:00 p.m. The companies scheduled in advance and alerted the owner that approximately 150 people would be involved. Cesare Polidoro retired and moved to Florida from Elizabeth, New Jersey, where he had worked for twenty-five years as a fire-fighter. He invested his life savings in the business, at the Cavalier, now known as Cesare's Palace. His policy is to avoid selling alcoholic beverages to minors and he instructs his employees in that regard. Both he and his partner continually remind the employees to check identifications. Minors are not good for business as they cause problems and do not have the kind of money to spend ten or fifteen dollars over the counter, according to Cesare Polidoro. The employees are generally conscientious in verifying ages and identification of patrons. Sylvia Wilson, who has criminal charges pending with regard to the alleged sale, refused to testify on matters directly related to the criminal charges. Cesare Polidoro denied that he witnessed the sale and claimed that he had never seen Sherri Russell before the hearing. Investigator Glover, however, observed Polidoro looking directly at Miss Russell during the entire transaction. Polidoro's credibility is discredited by two particularly blatant artifices he employed at the hearing. In response to his attorney's question with regard to educational programs for his employees regarding serving alcoholic beverages to minors, he invoked his experience as a "law enforcement officer" in New Jersey and the many cases he saw involving minor children and drugs. As a firefighter, however, he was not an armed law enforcement officer and had limited arrest powers, not including drug offenses. He also claimed that "a fellow by the name of Mr. York" came up to him on the December 22nd and gratuitously volunteered that the investigator bought the drink and gave it to the young woman. He did not explain how this person, whom he did not know, would be interested in sharing the information or would understand its importance. On the date of the hearing, this ephemeron, just as inexplicably, withdrew his assistance and allegedly told Polidoro he was too busy to come testify. No evidence adduced at hearing established Anthony Milazzo's culpability or implication in the unlawful sale. Cesare Polidoro was culpable. He watched the incident. Moreover he allowed a single employee to become so "swamped" (her term) that it became virtually impossible for her to meaningfully comply with his instructions regarding checking identifications. The DABT policy regarding incidents of sales to minors is to file administrative charges immediately if the licensee was on the premises. Otherwise, the licensee receives a notice after the first violation and criminal charges are filed against the employee or agent who made the sale. For the second violation, the licensee is notified that an investigation is open and criminal charges are filed against the person serving the minor. For the third violation, administrative charges are filed against the licensee and criminal charges are filed against the employee.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that a Final Order be entered finding the licensee guilty of a violation of section 561.29(1)(a), Florida Statutes and section 562.11(1)(a), Florida Statutes, and imposing a civil penalty of $1,000.00. DONE and ENTERED this 23rd day of June, 1989 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. PETITIONER'S PROPOSED FINDINGS Adopted in Paragraph #1. Adopted in substance in paragraphs #3, 4, and 5. Rejected as cumulative. Adopted in substance in paragraph #3. Rejected as cumulative and unnecessary, except for the observation of Polidoro, which is adopted in paragraph #11. Adopted in substance in paragraphs #2 and 8. Rejected as unnecessary, except for Ms. Smith's nonappearance at work on the 22nd, which is adopted in paragraph #8. Adopted in part in paragraphs #10 and 11, otherwise rejected as unnecessary. Adopted in substance in paragraphs #8, 10, and 12. Rejected as unnecessary. RESPONDENT'S PROPOSED FINDINGS Adopted in paragraph #1. through 4. Adopted in paragraph #3. Adopted in paragraph #2. and 7. Rejected as contrary to the weight of evidence. Adopted in paragraph 8. Rejected as contrary to the evidence relating to the incident in issue. Rejected in part, as the age of Sherri Russell was not checked in the incident at issue. Otherwise adopted in paragraph #8. Adopted in paragraph #4. Rejected as contrary to the weight of evidence. Adopted in paragraph #14. Rejected as unnecessary. and 16. Rejected as cumulative. COPIES FURNISHED: JOHN B. FRETWELL, ESQUIRE ASSISTANT GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1007 RICHARD A. COLEGROVE, JR., ESQUIRE 801 ORIENTA AVENUE SUITE 2600 ALTAMONTE SPRINGS, FLORIDA 32701 STEPHEN R. MACNAMARA, SECRETARY DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING 725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000 LEONARD IVEY, DIRECTOR DEPARTMENT OF BUSINESS REGULATION DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO 725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000 JOSEPH A. SOLE GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION 725 S. BRONOUGH ST. TALLAHASSEE, FLORIDA 32399-1000
Findings Of Fact Respondents currently hold a Series 2APS license, number 45-00254, for Eastside Grocery, which is located at 132 South Highway 33, Groveland, Florida. The current term of the license expires on September 30, 1988. On February 26, 1988, Victoria Solozabal entered Eastside Grocery at about 4:25 p.m. Claude Cruce, a law enforcement investigator employed by Petitioner, entered the store directly behind her. Ms. Solozabal was acting under the direction of Mr. Cruce and another of Petitioner's investigators, Carl Lloyd, in assisting them in the detection of sales of alcoholic beverages to underaged persons. Ms. Solozabal was born on August 23, 1969. Upon entering the store, she carried with her only her driver's license and a small amount of cash for the purchase of a single can of beer. Ms. Solozabal went directly to an electric cooler in the back of the store, selected a chilled can of Budweiser beer, and took it to the checkout counter. With Mr. Cruce directly behind her and Mr. Lloyd only a few feet away watching, Ms. Solozabal placed the beer on the checkout counter and took out a $10 bill while Respondent Sandra Pettingill was ringing up the purchase. Ms. Pettingill demanded 75 cents, and Ms. Solozabal gave her the $10 bill. Ms. Pettingill placed the bill in the cash register and returned the change to Ms. Solozabal. At no time did Ms. Solozabal or any other employee of Eastside Grocery ask Ms. Solozabal her age or for proof of age. As Ms. Solozabal approached the door to leave the store, Mr. Cruce stopped her, demanded her identification, and seized the beer. He and Mr. Lloyd then informed Ms. Pettingill that she had sold an alcoholic beverage to an underaged person.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondents guilty of selling an alcoholic beverage to a person under the age of 21 years and imposing a civil penalty in the amount of $250. DONE and RECOMMENDED this 4th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1759 Treatment Accorded Petitioner's Proposed Finding of Facts Adopted. Adopted in substance. Adopted. Rejected as subordinate. 5-6. Adopted. Second 6. Rejected as irrelevant. Adopted. First sentence adopted. Remainder rejected as subordinate. Adopted. Rejected as subordinate. Treatment Accorded Respondents' Proposed Findings of Fact 1-3. Adopted, except any resemblance between Ms. Solozabal and a regular customer of legal age is rejected as irrelevant. 4-5. Rejected as irrelevant. Ms. Pettingill testified that her normal procedure was to check proof of age before ringing up a sale. She also testified that Mr. Cruce asked about the couch drops only after she had taken the $10 bill from Ms. Solozabal. Mr. Cruce's request for cough drops thus had nothing to do with the sale, which had already been made. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 George Kelley, Esquire 368 East Main Street Post Office Box 1132 Apopka, Florida 32703 Van B. Poole Secretary Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 Joseph Sole General Counsel Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 =================================================================
The Issue The issue for consideration in this matter is whether the Respondent's 1 APS license 15-00386 should be disciplined because of the matters alleged in the Notice to Show Cause filed herein.
Findings Of Fact At all times pertinent to the allegations in issue here, the Division was the state agency responsible for the licensing of the sale of alcohol and alcoholic beverages in Florida. Respondent operated the S & D Food Market at 531 Blake Avenue, Cocoa. On August 27, 1991, SA Wylie, a member of the Division's Orlando office, was, along with several other Special Agents, including SA Felton, assisting the Florida Department of Law Enforcement to serve search warrants and search covered premises, including that of the Respondent. When he arrived at the Respondent's facility he asked the clerk on duty to show him the alcoholic beverage license for the store and determined it permitted only the sale of packaged beer for off-premises consumption. He conducted an inspection of the store to insure only beer was being sold in compliance with the license and discovered several bottles of wine in the cooler along with wine cooler and beer. These items were in the display section open to the public. Mr. Wylie went around back into the cooler and found more wine, and when he went into the store's back storage room, found cases of wine stacked up against the wall. When he saw this, he went back to the clerk and asked why wine was being sold when the license permitted only the sale of beer. The clerk claimed to know nothing about it. Wylie asked for the invoices for the wine purchases and the clerk went to get them. While waiting in the office, Mr. Wylie also saw several cartons of cigarettes which showed a Publix stamp on the end. The presence of these stamps on the cartons indicated to him that the cigarettes had been purchased at Publix and not from a wholesale distributor. He assumed the cigarettes were for resale, though all other cigarettes in the store were in the display rack out front. These cigarettes were legal. When the clerk came back with the invoices, Wylie also asked him for the purchase receipt for the cigarettes and the clerk went to get that, too. In the meantime, SA Felton arrived on the scene and Wylie turned over all the wine and the cartons of cigarettes to her. Felton inventoried the wine and determined there were in excess of 76 full cases of wine in addition to numerous loose bottles.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered in this case dismissing the allegation that Respondent, Edward Andre Jones, possessed cigarettes not purchased from a wholesale dealer, but finging him Guilty of the allegation of possessing unauthorized alcoholic beverages on the premises covered by 1 APS license 15- 00386; placing his license on probation for one year, and assessing an administrative fine of $1,000.00. RECOMMENDED in Tallahassee, Florida this 27th day of January, 1993. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1993. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Lane Vaughn, Esquire 2007 South Melbourne Court Melbourne, Florida 32901 Janet E. Ferris Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of the violation alleged in the Notice To Show Cause issued October 20, 1989 by the Director of the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation and filed herein.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this case, OB's Restaurant and Lounge, Inc. held a Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) license for the premises known as OB's Restaurant and Lounge (OB's), alcoholic beverage license number 74-2421 SRX, Series 4-COP, located at 913 Highway 17, Pierson, Volusia County, Florida. Christine Shuter O'Brien, president of OB's Restaurant and Lounge, Inc. owns 100 per cent of the stock in the corporation. Ms. O'Brien has owned and operated OB's since July 1989. Camiel Long, born July 3, 1969, who was 20 years of age on October, 1989, works with law enforcement investigators of District 12 of the Division, Daytona Beach, Florida, as an Investigation Aide in determining whether licensed establishments are selling alcoholic beverage within their licensed premises to persons under the age of 21 years. On Saturday, October 7, 1989, Long met with Investigator Ron Sullivan for the purpose of Sullivan explaining the procedure used to effect underage investigation. At this time, Sullivan explained to Long that he would enter a licensed premises first and Long was to follow a few minutes later. Upon entry of the licensed premises Long was to approach the appropriate point of sale and ask to purchase an alcoholic beverage. Long was instructed to carry his own personal Florida Driver's license and to present the driver's license upon request. Long's Florida driver's license depicted him as having a mustache. The photographs taken on October 7, 1989 depicts Long as being clean shaven, without a mustache. One of the targeted licensed premises for October 7, 1989 was OB's because of a complaint received from the local police department. At approximately 9:45 p.m. on October 7, 1989, Sullivan and Long arrived at OB's parking lot and Sullivan then entered OB's, with Long following in approximately five minutes. Kevin Cox was in charge of checking identification (ID) at the door of OB's to keep out underage persons, and was in fact checking ID's at the door of OB's on Saturday night, October 7, 1989. On Saturday night, October 7, 1989, at the time Long entered OB's and purchased the beer, the bar was quite busy, some customers were playing pool and a band was playing, as was normal on Friday and Saturday night On Saturday night, October 7, 1989 there were several signs over the entrance to the bar at OB's indicating that proper identification was required and that it would be checked When Long entered OB's, Cox was checking several other persons' ID cards, and did not stop Long to check his ID as he "skirted" around him because he appeared to be about the same age as those persons Cox was checking who were in the 24-25 year-old bracket according to their ID cards. After entering OB's, Long found a seat at the bar, sat down, and ordered a Budweiser beer from Christine Shuter O'Brien who was tending bar at that time, along with Lorraine Ware. Ms. O'Brien opened a long-neck 12 ounce bottle of Budweiser beer, an alcoholic beverage, and served the beer to Long who paid Ms. O'Brien for the beer. Ms. O'Brien did not question Long's age or require any type of ID from him before selling and serving him the beer. Upon receiving the beer and his change, Long turned and handed the beer to Sullivan, and Long left the premises. Sullivan identified himself to Ms. O'Brien and advised her that he had observed her sell an alcoholic beverage to a person under the age of 21 years. Sullivan then requested that they move to area where they could speak. After moving to another area, Sullivan presented O'Brien with a Notice to Appear, in lieu of arrest. Ms. O'Brien has had no previous Beverage Law violation in any establishment that she has owned, including one in DeLand and one in Illinois. Ms. O'Brien's policy concerning the serving of alcoholic beverages is that if someone appears to be of age (21 years or older), then it is not necessary to request an ID to confirm their age. Both Kevin Cox and Lorraine Ware was aware of this policy, as well as other employees. Lorraine Ware, through experience and having taken a course taught by the Division concerning serving underage persons, is aware that it is her responsibility to avoid serving an underage person alcoholic beverage. Ware has also received instruction from Ms. O'Brien not to sell alcoholic beverages to an underage person. Long's appearance on Saturday night, October 7, 1989 and on the day of the hearing (February 13, 1990), four months later, was very similar, except for his clothing, and would cause an ordinary prudent person to question whether he was 21 years of age or older. Long's appearance should have caused both Cox and Ms. O'Brien to require him to confirm his age by some type of identification. O'Brien's failure to require confirmation of Long's age before selling him the beer on Saturday night, October 7, 1989 showed a lack of due diligence on her part, notwithstanding her presumption that Cox had checked Long's ID at the door, or the fact that she had several signs posted concerning the checking of ID's.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the mitigating circumstances surrounding the sale, it is, therefore, RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of a violation of Section 562.011(1)(a), Florida Statutes, and for such violation assess a civil penalty of $500.00. DONE AND ENTERED this 21st day of March, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6962 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-2. Adopted in Findings of Fact 1 and 3, respectively. Adopted in Findings of Fact 4 and 5. Adopted in Findings of Fact 6 and 7. 5.-9 Adopted in Findings of Fact 8, 12, 13, 14 and 12, respectively. 10. Adopted in Findings of Fact 2, 15. 11.-15. Adopted in Findings of Fact 16, 8, 18, 9 and 18, respectively. 16 Rejected as not being supported by substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-3. Covered in Preliminary Statement. Covered in beginning paragraphs. Covered in Preliminary Statement and in Findings of Fact 5. Adopted in Findings of Fact 5, as modified. Adopted in Findings of Fact 4 and 5, as modified. Adopted in Findings of Fact 7, 12 and 14, as modified, except for the last sentence which was rejected because O'Brien was not arrested but given Notice To Appear in lieu of an arrest. 9.-14. Rejected as being more of a restatement of testimony than proposed findings of fact, but if stated as proposed findings of fact then adopted in Findings of Fact 8, 9, 10, 12 and 17. COPIES FURNISHED: Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399- Joseph A. Scarlett, Esquire 208 West Howry Avenue Deland, Florida 32720
