Findings Of Fact At all times material hereto, the Respondent was the holder of a valid alcoholic beverage License No. 58-1090, Series 2APS. Respondent is a corporation which owns and operates several convenience stores in the Orlando, Florida area. On February 19, 1983, David Aaron Morgan purchased twelve cans of Budweiser beer at the Respondent's "Pore Jack's store located at 2233 Goldenrod Road, in Orlando, Florida. The purchase was made from a Mr. Claude P. Gillenwater, a clerk and employee at the store. Mr. Morgan had purchased beer from Mr. Gillenwater on at least three (3) prior occasions. At the time of his first purchase of beer from Gillenwater, David Morgan was required to show identification. He showed Mr. Gillenwater a restricted driver's license on which the year of birth appeared to be 1963. Mr. Morgan's date of birth is July 1, 1965. On February 19, 1983, Mr. Gillenwater did not check Mr. Morgan's identification. Mr. Morgan had never informed Mr. Gillenwater that he was underage. He knew Mr. Gillenwater would not serve him beer if he knew he was underage. The information on the restricted license was unclear because the license had been partially mutilated in the washing machine in the Morgan home. David Morgan is in the eleventh grade at Colonial High School. He is 5'8" tall and weighs approximately 160-170 pounds. He wears a mustache and has for over a year. After purchasing the beer, David Morgan left the store and walked to a car in the parking lot where two friends were waiting in a car. Mr. Morgan was observed leaving the store with the beer by Beverage Officers Homer Kenneth Rigsby and Claude E. Cruz. The beverage officers followed Mr. Morgan and his friends as they drove away from the store and stopped them a short distance away. Mr. Morgan was placed under arrest and taken to his home, where his parents were informed of the purchase of beer. It was then verified by a driver's license produced by Mr. Morgan's mother that he was, in fact, not of legal age to purchase alcoholic beverages. Prior to the February 19, 1983, incident, Mr. Gillenwater had been an employee with Respondent for six (6) years. He worked different shifts on an as need basis and the Respondent had never received any complaints regarding the performance of his duties. At the time of his initial employment, Mr. Gillenwater received training and instruction regarding his duties and specifically his responsibilities in assuring compliance with the beverage laws. After his initial training , Mr. Gillenwater was required to work under the supervision of the manager of the store or an experienced cashier until he became familiar enough with the policies and procedures of the company. All employees, and specifically Mr. Gillenwater, were instructed in checking identifications and in the Respondent's strict policy against sales of alcoholic beverages to minors. Mr. Gillenwater was fired by Respondent as a result of this incident. The store in question had a sign posted informing customers that they must be 19 years of age to purchase alcoholic beverages and that a Florida driver's license would be required as identification. (See Respondent's Exhibit 1.) There was also a sign reflecting the date prior to which a customer had to have been born in order to be able to purchase alcoholic beverages. Respondent's employees were instructed to require a driver's license as identification each time a purchase of alcoholic beverages was made by anyone who appeared under 30 years of age. They were required to do this until they became familiar with the particular individual and recognized him on sight as a person who had previously provided proper identification. There was no evidence that Respondent had had any previous violations at the store involved or at any of its other stores. During most of the hours the store is open, a manager or assistant manager is on duty supervising the cashiers. Respondent had no notice or information that any of its employees were failing to follow its procedures regarding the requirement for proper identification.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed. DONE and ENTERED this 28th day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1983. COPIES FURNISHED: Aldo Icardi, Esquire Post Office Box 879 Winter Park, Florida 32790 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Executive Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Petitioner, Emad F. Abdelmeseh, d/b/a Emad's Texaco is entitled to recover attorney's fees and costs in defending the charges made against him in the case of Department of Business Regulation, Division of Alcoholic Beverages and Tobacco vs. Emad F. Abdelmeseh, d/b/a Emad's Texaco, Division of Administrative Hearings, Case No. 91-1618, under the provisions of Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code (formerly 22I-6.035, Florida Administrative Code) and, if so, the amount which Petitioner is entitled to recover.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was licensed by the Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, to sell alcoholic beverages from the premises of Emad's Texaco, having been issued license number 63-2090, 2APS. The Petitioner timely filed the petition in the instant case in accordance with Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code (now Rule 60Q-2.035, Florida Administrative Code). The Respondent timely filed a written response alleging that Respondent was substantially justified in issuing the Notice To Show. With its response the Respondent filed an Affidavit challenging the amount of attorney's fees and cost requested by the Petitioner. However, this Affidavit was subsequently withdrawn and the Respondent made no further effort to contest the attorney's fees and costs incurred by the Petitioner. Emad Abdelmeseh is domiciled in the state of Florida and is the sole proprietor of an unincorporated business known as Emad's Texaco, located at 101 East Memorial Boulevard, Lakeland, Florida. Emad's Texaco employs less than 25 employees, and the Petitioner's net worth is less than Two Million Dollars ($2,000,000.00). Petitioner is a "small business party" as that term is defined under Section 57.111(3)(d), Florida Statutes. On July 11, 1990, agents for the Division of Alcoholic Beverages and Tobacco (Division), John Blair and Brad Nelson, participated in a joint investigation with the City of Lakeland Police Department (CLPD) in the illegal selling of alcoholic beverages to minors. Throughout the course of this investigation the Division's agents were on official duty. Agents Blair and Nelson met with the CLPD detectives and Smalley prior to the investigation and remained with the investigation until its conclusion, including the investigation of Emad's Texaco. The Division, through its agents Blair and Nelson, fully participated in the investigation conducted on July 11, 1990, including Emad's Texaco, and did not simply rely on the CLPD's independent investigation to institute action against Emad's Texaco. This case was not what the Division considers an "adopted case" - one handled entirely by another law enforcement agency which request the Division to prosecute. Therefore, the investigation, as far as agents Blair and Nelson were concerned, should have been conducted in accordance with the Division's Policy and Procedure. The investigation of July 11, 1990, involved the use of an underage operative by the name of J. Karen Smalley n/k/a J. Karen Raschke (Smalley) with previous experience working with the Division, and documented as an underage operative by the Division. Prior to July 11, 1990, Smalley had also been used as an underage operative by the CLPD. During the July 11, 1990 investigation, Smalley was being paid by, and was under the direction of, the CLPD. Before leaving the Police Department to assist in the investigation on July 11, 1990, Smalley was instructed by both Detective Phillips and Agent Blair, on separate occasions, concerning her duties and responsibilities in regard to the investigation. During the course of the investigation on July 11, 1990, Smalley was sent on to the premises of Emad's Texaco for purposes of attempting to purchase an alcoholic beverage. Smalley went to the cooler area in Emad's Texaco's licensed premises and took a six-pack of beer to the check-out counter. Amad Abdelmeseh asked to see Smalley's identification. Smalley either handed her driver's license to Amad Abdelmeseh or laid her driver's license on the check-out counter. Emad Abdelmeseh looked at Smalley's driver's licenses which showed her date of birth to be July 24, 1970, just a few days short of being 20 years of age. Although the photograph of Smalley on the driver's license was taken in 1986, she still maintained her youthful appearance on July 11, 1990. On July 11, 1990, Smalley's hair was blonde, having dyed her hair which was brown when the driver's license was issued. However, Smalley did not dress-up or wear make-up on July 11, 1990, so as to appear older than her age of almost 20 years. There was insufficient evidence to establish facts to show that at the time Smalley was attempting to purchase the six-pack of beer on July 11, 1990, that she: (a) told Emad Abdelmeseh that she was 21 years of age or older or; (b) produced a driver's license, other than the driver's license referred to above, that listed a date of birth which would have indicated an age of 21 years or older or; (c) in any fashion attempted to misrepresent her age as being 21 years or older After looking at Smalley's driver's license, Emad Abdelmeseh sold Smalley the six-pack of beer. After making the purchase of beer, Smalley exited Emad's Texaco and advised Detective Phillips that she had made a purchase of beer from the person inside the store. Detective Phillips advised Detective Tim Snyder of the purchase. Detective Snyder then went inside Emad's Texaco and identified Emad Abdelmeseh as the person who had sold the beer to Smalley. On August 8, 1990, Agent Blair served a Notice of Intent To File Administrative Charges against Emad Abdelmeseh's alcoholic beverage license as a result of his sale of alcoholic beverage to Smalley. On August 8, 1990, Abdelmeseh complained to Agent Blair about the lapse of time between Smalley making the purchase of beer on July 11, 1990 and the serving of the Notice of Intent on August 8, 1990. Emad Abdelmeseh did not complain to Agent Blair on August 8, 1990 that Smalley had misrepresented her age to him when she made the purchase of beer on July 11, 1990. In fact, Emad Abdelmeseh did not advise Agent Blair, or anyone else with the Division, of his allegation that Smalley had misrepresented her age to him on July 11, 1990, when she purchased the beer from him until after the Notice To Show Cause was issued by Lt. Robert Bishop. After the Notice of Intent was served on Emad Abdelmeseh, Agent Blair prepared a draft Notice To Show Cause and a synopsis for review by Lt. Robert Bishop, District Four Supervisor. Lt. Bishop has been a supervisor with the Division for 23 1/2 years. On August 16, 1990, Lt. Robert Bishop, acting with authority from the Division Director, issued a Notice To Show Cause which was served against the Petitioner's alcoholic beverage license on August 17, 1990 alleging that Petitioner had sold alcoholic beverages from the premises of Emad's Texaco to a person under the age of 21 years contrary to Section 562.11(1)(a), Florida Statutes. The issuance of the Notice To Show Cause was the initiation of the case against the Petitioner and the Division was not a nominal party in this case. In issuing the Notice To Show Cause, Lt. Bishop relied solely on the information in the Notice To Show Cause and the synopsis prepared by Agent Blair without any further investigation or discussion with Agent Blair. The Division had used Smalley as an underage operative on several occasions prior to the investigation on July 11, 1990, and had found her to be a credible and reliable underage operative. Therefore, the Division reasonably relied on Smalley in the issuance to the Notice To Show Cause to Emad Abdelmeseh, notwithstanding that on July 11, 1990, Smalley was being paid by, and was under the direction of, the CLPD. Agent Blair has been an agent with the Division for 16 years and his reports, according to Lt. Bishop, are impeccable. Therefore, Lt. Bishop had no problem in issuing the Notice To Show Cause to Emad Abdelmeseh based solely on Agents Blair's report, notwithstanding that Agent Blair's report did not specifically indicate that he had strictly adhered to the Division's Policy and Procedure. Although the record reflects that Agent Blair did not strictly adhere to the Division's Policy and Procedure on July 11, 1990, there is competent substantial evidence to establish facts to show that the CLPD detectives basically filled in the gaps, so the speak. It is clear from the testimony of Lt. Bishop that even if had he made further inquiry of Agent Blair concerning Agent's Blair's adherence to policy and procedure, it would not have changed Lt. Bishop's mind about issuing the Notice To Show Cause because there was a reasonable basis in law and fact to issue the Notice To Show Cause - there was credible evidence that Emad Abdelmeseh had sold an alcoholic beverage to an underage operative in violation of the Florida Statutes. Along with the Notice To Show Cause served on Emad Abdelmeseh there was a Notice Of Informal Conference which provided for an Informal Conference between the Division and Emad Abdelmeseh on August 28, 1990 at 3:00 p.m. It was at this informal conference on August 28, 1990, that Emad Abdelmeseh first advised anyone from the Division of his allegation that Smalley had misrepresented her age to him on July 11, 1990. The Informal Conference did not resolve the issues and a Request For Formal Hearing signed by Emad Abdelmeseh and dated September 4, 1990 was filed with the Division. In the Request For Hearing Emad Abdelmeseh sets out what he considers to be the disputed issues of fact. In this request there is an allegation that the underage operative was misleading in that when asked if she was 21 years of age she continued to purchase the beer as if she was an adult. There was no mention of Smalley presenting her driver's license By letter dated February 12, 1991, Emad Abdelmeseh again sets out what he considers to be the facts. Among other things, he alleges that Smalley claimed that she was over the age of 21 years and that she did present her driver's license for identification. On March 11, 1991, the matter was referred to the Division of Administrative Hearings for conduct of a formal hearing. The Division prosecuted this action in the case of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco vs. Emad Abdelmeseh, d/b/a Emad's Texaco, Division of Administrative Hearings Case No. 91-1618. On October 30, 1991 the Division exercised its administrative discretion and entered an Order of Dismissal dismissing the charges against Emad Abdelmeseh set forth in the Notice To Show Cause issued on August 16, 1990. The reasons behind the Division's dismissal of the case were not presented at the hearing on April 29. 1992 or November 17, 1992. The Petitioner is the prevailing small business party as that term is defined in Section 57.111(3)(c), Florida Statutes. The hourly rate and the total number of hours expended by Petitioner's attorney, and others under his control, and the costs incurred in the defense of the Petitioner as set out in Amended Affidavit and attached as Exhibit B to the Petitioner's Amended Petition in the amount of $11,429.77 are reasonable, and should be the amount awarded in the event Petitioner is successful in presenting his Amended Petition. There is competent, substantial evidence to establish facts to show that at the time the Notice To Show Cause was issued on August 16, 1990 the Division had made a meaningful inquiry into the matter and there was a reasonable basis in fact and law to initiate the action. No special circumstances exist which would make the award unjust.
The Issue The issue presented is whether Respondent violated the Final Order of Petitioner by failing to pay $1,250 to Petitioner on or before the expiration of 30 days after the entry of the Final Order.
Findings Of Fact Petitioner is the state agency responsible for regulating the sale of alcoholic beverages. Respondent is licensed to sell alcoholic beverages pursuant to license number 15-02311, Series 4COP SRX. The licensed premises are located at 680 George J. King Boulevard, Port Canaveral, Florida, 32920. On October 2, 2000, Petitioner entered a Final Order that required Respondent to pay an administrative fine of $1,250 within 30 days of the date of entry of the order. Respondent appealed the Final Order to the First District Court of Appeal. The First District Court of Appeal upheld the Final Order. Respondent failed to pay any portion of the administrative fine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 561.29; imposing an administrative fine of $2,500, pursuant to Rule 61A-2.022(8); and permanently revoking alcoholic beverage license number 15- 02311, Series 4COP SRX. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY 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 24th day of May, 2002. COPIES FURNISHED: Richard Turner, Director Division of Alcoholic Beverages & Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Chad D. Heckman, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Raymond J. Cascella Manos Inc., d/b/a Sea Port Restaurant 680 George J. King Boulevard Port Canaveral, Florida 32920 Capt. German Garzon Department of Business and Professional Regulation 400 West Robinson Street, Room 709 North Tower, Hurston Building Orlando, Florida 32801
The Issue By Notice to Show Cause filed December 19, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the alcoholic beverage license number 60-0883 issued to James R. Rogers, trading as Ray's Tavern. As grounds therefor it is alleged that Rogers, in order to secure a license to sell alcoholic beverages, made false written statements to the agents of Respondent in violation of 537.06 and 561.29 F.S. One witness was called by Petitioner and four exhibits were admitted into evidence.
Findings Of Fact On December 21, 1977, notice of the hearing scheduled to commence on January 12, 1978 at 1457 N. Military Trail, West Palm Beach, Florida was served on Respondent by a beverage agent of Petitioner. (Exhibit 1) In answer to question 13 on the application for Transfer of Alcoholic Beverage License, which asked "Has a license covering the place described in this application or any other place in which any of' the above named persons were at the time interested ever been revoked by the Director?" Respondent answered "No". (Exhibit 2). By Order of the Director of the Division of Beverages dated September 30, 1955 (Exhibit 3) the alcoholic beverage license issued to James R. Rogers, Curley's Tavern, aka Ray's Tavern was revoked for maintaining gambling paraphernalia and permitting gambling on the licensed premises.
The Issue Whether or not on or about October 31, 1975, the Respondents, Bossie Mae and Willie Mae Browdy, licensed under the beverage laws as a package store, and/or their agent, servant or employee, to wit: Bossie Mae Browdy did allow or permit the consumption of alcoholic beverages on their licensed premises, contrary to Rule 7A-3.05, Florida Administrative Code. Whether or not on or about November 1, 1975, the Respondents, Bossie Mae and Willie Mae Browdy, licensed under the beverage laws as Browdy's Mini Market with a 2-APS license to wit: Bossie Mae Browdy did allow gambling (card) on the licensed premises, contrary to Section 849.08, Florida Statutes and in violation of Section 561.29, Florida Statutes.
Findings Of Fact At present, and on October 31, 1975 and November 1, 1975, the Respondents, Bossie Mae and Willie Mae Browdy are and were the holders of a beverage license with the State of Florida, Division of Beverage number 69-299, 2-APS. On October 31, 1975, Eugene Fogel, a Division of Beverage enforcement officer entered the premises licensed by the State of Florida, Division of Beverage, which was operated by the Respondents at Avenue B on Chuluota Road, Oviedo, Florida. While in the store he observed an unknown black female consuming a beverage which was marked Millers High-Life. This consumption was taking place in the presence of the Respondent, Bossie Mae Browdy, and in the course of the consumption a conversation was taking place between the unknown black female and Bossie Mae Browdy. The bottle which Officer Fogel observed was marked with identifying information which the officer based upon his experience, felt indicated that it contained an alcoholic beverage. On November 1, 1975, officer Fogel returned to the licensed premises of the Respondents and entered into a card game in a porch like area which is immediately at the front of the store and connected to the store. This card game was between Fogel and several black males who were participating in a card game when he approached. The game took place over 45 minutes and money was exchanged at 25 cents a game for the winner, for a total amount of approximately $2.00. During the course of the game, Bossie Mae Browdy came to the door and looked out at the card game being played.
Recommendation It is recommended that the Respondents, Bossie Mae and Willie Mae Browdy, be fined in the amount of $100 for the offense as established through this administrative complaint. DONE and ENTERED this 24th 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: Charles Curtis, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Carl Thompson, Esquire 25 South Magnolia Avenue Orlando, Florida 32801
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Mehreen Enterprises, Inc., held license number 23-21339, Series 2APS, authorizing it to sell alcoholic beverages on the premises of a business known as Super Stop Food Store #2, located at 9260 Hammocks Boulevard, Miami, Dade County, Florida (hereinafter "the licensed premises"). Syed Abdul Qadir (Qadir) was, and is, a shareholder of the Respondent corporation, and the manager of the licenses premises.1 On March 1, 1997, at or about 8:00 p.m., Richard Stangl (Richard), date of birth December 7, 1976, and 20 years of age at the time, entered the licensed premises, retrieved a 32 ounce bottle of Red Dog beer from a vertical cooler, and proceeded to the counter where he paid Qadir for the beer and left the premises. At the time, Qadir did not request to see any identification as proof of legal age, nor did he ask Richard his age. As Richard drove away from the store he was intercepted by the police, who were engaged in an investigation of the premises. Confirming Richard's age and the possession of an alcoholic beverage,2 Richard was returned to the licensed premises where he and Qadir were placed under arrest.3 Respondent does not dispute that the foregoing events occurred. Rather, it contends that it took reasonable precautions to avoid serving an underaged person and should not, therefore, be penalized for the subject sale. Given the proof, Respondent's contention has merit. While Richard was less than 21 years of age at the time, the proof demonstrated that his appearance was such that an ordinary prudent person would believe he was of legal age to purchase alcoholic beverages.4 The proof further demonstrates that Richard frequented the licensed premises on a regular basis over a three month period, and that he routinely purchased (approximately 30 times) alcoholic beverages during that period. Initially Qadir inquired as to his age, which Richard stated to be 21, and requested identification, which Richard presented in the form of a driver's license consistent with that age. Qadir continued to request identification for a time but, as Richard appeared regularly at the store, and began to complain, he ceased requesting identification. Given the repeated assurances by word and identification card that Qadir had received regarding Richard's apparent age, Qadir's failure to continue to request identification was not unreasonable.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Action. DONE AND ENTERED this 18th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 18th day of December, 1997.
Findings Of Fact Respondent, Gerald P. McGuire, holds alcoholic beverage license number 39-675, 4-COP issued by Petitioner. On September 28, 1981, Petitioner's Beverage Officer entered the licensed premises of Respondent at 14975 N. Nebraska Avenue, Tampa, Florida. He advised the manager on duty, Mr. Gerald P. McGuire, Jr., that he intended to inspect the licensed premises. The manager did not object, and the inspection was conducted. Petitioner's Beverage Officer observed numerous open bottles of alcoholic beverages in the dispensing area on which the stamps and labels were excessively worn. He therefore seized the open bottles listed above and, in conjunction with other beverage officers, performed field tests to determine whether or not the contents were adulterated. The field tests indicated that the contents of all bottles listed above had been adulterated. Petitioner selected a sample of the seized bottles to be further tested by an independent chemical laboratory. The following sample was furnished to the laboratory: Seagrams VO - (2 Liters) Seagrams Seven - (2 Liters) Cutty Sark - (2 Quarts) Johnnie Walker Black Label Scotch - (1 Quart) DeWars White Label Scotch - (1 Liter) J & B Scotch - (1 Liter) Canadian Club - (1 Liter) Tests conducted by the independent laboratory established that the contents of each of the above samples was not that listed on the label.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's alcoholic beverage license number 39-675, 4-COP. DONE and ENTERED this 8th day of June, 1982 at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1982. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gerald P. McGuire, Sr. McGuire Enterprises, Inc. 14975 N. Nebraska Avenue Tampa, Florida 33612 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 16-637 S, Series 4-COP, be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 5th day of August, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1983.
The Issue The issue in this case is whether the Respondent's alcoholic beverage license should be revoked, suspended, or otherwise disciplined for a violation of Section 562.11, Florida Statutes, a provision of the Florida Beverage Law, which prohibits the sale of alcoholic beverages to a minor. At the formal hearing the Petitioner called as witnesses: Thomas L. Stout, Bernard W. Cooper, Timothy J. Culley, and Craig Brady Cooper. Mr. Antonino Sciarrino testified on behalf of respondent. The Petitioner offered and had admitted into evidence two exhibits and the Respondent offered no exhibits into evidence. Both the Respondent and counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the hearing officer. To the extent that those proposed findings and conclusions of law are inconsistent with the findings and conclusions contained within this order they were considered by the hearing officer and rejected as being unsupported by the evidence or unnecessary to the resolution of this cause.
Findings Of Fact At all times material to this action the Respondent was the holder of beverage license number 21-478, Series 2COP. This license was issued for the licensed premises located at 499 Goodlette Road, Naples, Florida. The licensed premises is a convenience store that also sells various types of food and dry good items plus sandwiches and beer. The Goodlette Food Mart, Inc. is owned and managed by Antonino Sciarrino, the President of the Respondent corporation. The Goodlette Food Mart opened for business on January 1, 1982. Prior to this time Mr. Sciarrino operated a deli in New York City where he also sold beer. Sometime during October, 1982 (the specific date being unknown) , Craig Cooper, a minor, 16 years of age was stopped by a Naples police officer and found to be in the possession of a six-pack of beer. This beer had been purchased by Craig Cooper at the Goodlette Food Mart and he informed the police officer of this fact. Mr. Cooper was asked by the police officer if he would be willing to cooperate in a controlled buy at the Goodlette Food Mart. Mr. Cooper indicated that he would. Subsequent to the October stop Craig Cooper agreed to cooperate with the police in making a controlled purchase of alcoholic beverages at the Goodlette Food Mart and on November 6, 1982, Mr. Cooper was contacted by a Naples police officer and was given cash. He was asked to go to the Goodlette Food Mart and to use the cash he had been given to attempt to purchase alcoholic beverages. From the police station Craig Cooper drove to the Goodlette Food Mart and Officer Culley of the Naples Police Department followed him. While Craig Cooper went inside the Goodlette Food Mart Officer Culley observed from the parking lot, Craig Cooper entered the Goodlette Food Mart and went directly to the cooler area where soft drinks and alcoholic beverages are kept. He removed a six-pack of Heineken Beer. He then proceeded to the cash register and paid for the beer. The cashier on duty was Robert Peterson. He did not question Craig Cooper or ask him for any identification at the time that Mr. Cooper paid for the beer. Mr. Cooper then left the store and turned the beer over to Officer Culley. At the time of the purchase by Craig Cooper, the manager Antonino Sciarrino was not present in the store. Mr. Sciarrino, was in the store 10 to 12 hours a day, but was generally not present in the evenings. Robert Peterson had been hired as a part-time employee approximately two or three months prior to November 6, 1982. Mr. Sciarrino had no prior problems with Robert Peterson and was not aware of any instances where he had sold beer to minors. At the time Robert Peterson was hired, he was instructed to not sell to minors and to always ask for and check identification prior to selling alcoholic beverages. There was also a sign posted in the employees room where they clock in and clock out which warned them that they could be criminally prosecuted for failing to check identification and for selling alcoholic beverages to minors. The Goodlette Food Mart had a policy against selling to minors and all employees were instructed regarding this policy and were required to check identification prior to selling alcoholic beverages. There were signs posted on the cooler and the cash register informing customers that minors were prohibited from purchasing alcoholic beverages and that identification was required, There was also a sign next to the cash register which reminded the cashier to check the customers' I.D. when purchasing alcoholic beverages. This sign also gave the date and year which the birthdate on the identification had to predate in order for the person to purchase alcoholic beverages. The purpose of this sign was to enable employees to more efficiently and more accurately check identifications. Immediately following notification of the November 6, 1982, sale to Craig Cooper, Mr. Sciarrino terminated Robert Peterson's employment with the Goodlette Food Mart.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That thee Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed. DONE and ORDERED this 14th day of October, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1983. COPIES FURNISHED: Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Antonino Sciarrino, President Goodlette Food Mart, Inc. 499 Goodlette Road Naples, Florida Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
