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
Findings Of Fact Victor Ingargiola is the sole shareholder, director and officer of Petitioner, I & H Enterprises, Inc., d/b/a Basin Street East (Petitioner), a Florida corporation. The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is the Respondent. Both Mr. Victor Ingargiola and his wife, Mrs. Barbara Ingargiola, entered the Division's double random selection drawing for eligibility to apply for a new quota alcoholic beverage license. Mr. Ingargiola was selected in the drawing, and Mrs. Ingargiola was not. After receiving notice of his selection in the drawing, Mr. Ingargiola formed the Petitioner and applied for licensure on or about November 1, 1984. In his application, Mr. Ingargiola did not identify his wife as a person having an interest in Petitioner or its business, either directly or indirectly. The application also represented that Petitioner had a right to occupancy of the premises to be licensed at 4513 Causeway Boulevard, Tampa, Florida. Petitioner's application carries with it an application fee of $6,750. Mr. Ingargiola obtained a portion of the funds necessary to pay the application fee from funds held jointly by him and his wife and by loans to him and his wife secured by property jointly held by him and his wife. Virtually all money and property of the Ingargiolas is held in their joint names. Both Mr. and Mrs. Ingargiola conferred with the Division's Investigator Miller concerning the application. Miller initially requested that Mrs. Ingargiola be finger printed as a person having an interest in the license to be issued. Mrs. Ingargiola understood that she was not permitted to have an interest since she herself had entered the double random selection drawing. She therefore declined to be fingerprinted or to be made to appear on the application as a party having an interest in the license to be issued. Investigator Miller also discussed with the Ingargiolas the question of Mrs. Ingargiola's involvement and the financing of Petitioner. Investigator Miller led the Ingargiolas to believe that the only possible legal financing arrangement would be for Mrs. Ingargiola to give the funds to her husband outright. He led them to believe that this could be done by affidavit, and Mrs. Ingargiola signed and filed an affidavit which Investigator Miller approved as to form. The affidavit listed the financing in question and stated: "I swear that the following funds obtained are to be used by Victor A. Ingargiola and I will have no interest or control over these funds." Barbara Ingargiola also testified at final hearing that she claims no interest whatsoever in Petitioner, any license to be issued to it, or the funds she gave outright to her husband to finance Petitioner. Essentially, Mrs. Ingargiola gave her half of the joint funds and proceeds of joint loans used by Victor Ingargiola to finance Petitioner's application fee. If necessary, she was prepared to do the same with the proceeds from the sale of joint real property or loans secured by the Ingargiolas' joint real property. However, no mention was made or consideration given to Mrs. Ingargiola's liability for her husband's share of the joint borrowing in addition to hers. Mrs. Ingargiola did have an interest in the successful operation of Petitioner so as to enable her husband to pay at least half, if not all, of the joint borrowing used in part to finance Petitioner. On or about October 12, 1984, Mr. Ingargiola obtained a written lease to the premises to be licensed. However, the lease does not contain a commencement date. At the time the application was filed, the premises were occupied by another tenant, and, as of December 20, 1984, this tenant had a legal right to occupy the premises and had not been notified of the pending liquor license application or the lease. In addition, the purported lease contains a provision requiring Petitioner to secure its duties and obligations under the lease by depositing with the landlord the sum of $60,000 in cash or irrevocable letter of credit. There was no evidence that Petitioner had complied with or could comply with this requirement of the lease. Although Mr. Ingargiola testified to his understanding of his right to occupancy of the premises under the lease upon granting of Petitioner's application and issuance of the license, there was no testimony from the landlord on the ambiguities surrounding the lease and the rights of the tenant in possession. As a result, the evidence as a whole was insufficient to prove Petitioner's right to occupancy of the premises to be licensed.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, deny the application of Petitioner, I & H Enterprises, Inc., d/b/a Basin Street East, for a quota alcoholic beverage license RECOMMENDED this 17th day of March, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1986. COPIES FURNISHED: Joseph L. Diaz, Esquire 2522 W. Kennedy Blvd. Tampa, FL 33609 Thomas A. Klein, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301
The Issue Whether or not on or about the 19th day of August, 1975, the Respondent, Leartis Frazier, his agent, servant or employee, one Robert Henry Williams did unlawfully sell an alcoholic beverage, to wit: one 16 ounce can of Budweiser beer, in a manner not permitted by the Respondent's beverage license, to wit: while the license was suspended, contrary to Section 562.12, Florida Statutes.
Findings Of Fact On August 19, 1975, the beverage license which the Respondent, Leartis Frazier, held with the State of Florida, Division of Beverage was on active suspension. The notice of suspension had been served on Leartis Frazier at Frazier's Grocery, 2273 Commonwealth Avenue, Jacksonville, Florida. Furthermore, a sign had been posted at that address which indicated that the license of Leartis Frazier t/a Frazier's Grocery was suspended. On August 19, 1975, while the license was under suspension an officer of the Jacksonville Sheriff's Office observed one David Brooks enter Frazier's Grocery, without any objects in his hands. This observation occurred after the officer had encountered Brooks moments before in the conduct of an investigation and Brooks had not been carrying any objects in his hands at that moment either. Several minutes after entering the Frazier's, the same David Brooks exited Frazier's Grocery with a paper bag in his hands which contained one 16 ounce can of Budweiser beer. The Officer then entered the licensed premises and went to the beer counter and opened it up and discovered one can of beer missing from a six-pack container of Budweiser beer. At the time the officer made this investigation the sign which had been placed in the window of Frazier's Grocery to indicate the license suspension was being displayed. A Mr. Williams was sitting behind the counter inside the licensed premises as an employee, agent or servant of the Respondent at the time the officer of the Jacksonville Sheriff's Office discovered the missing can of beer. Mr. Brooks, when questioned about where he had bought the can of beer, after discussion, indicated that he had bought it at Frazier's Grocery. By Mr. Brooks' statement and the officer's observation, it is established that Mr. Williams sold the Budweiser beer to Brooks. The Mr. Williams was identified in the hearing, as being Robert Henry Williams.
Recommendation It is recommended that the license of the Respondent, Leartis Frazier, be suspended for a period of one year for the violation as established in the hearing on this Notice to Show Cause. DONE and ENTERED this 14th day of September, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Leartis Frazier 2273 Commonwealth Avenue Jacksonville, Florida 32209 Charles F. Tunnicliff, Esquire Division of Beverage The Johns Building 725 Bronough Street Tallahassee, Florida 32304
The Issue Should Respondent’s license to sell alcoholic beverages be revoked, suspended, or otherwise disciplined?
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 pertinent to this proceeding, Respondent El-Bireh, Inc., held license number 63-02202, ZAPS, authorizing Respondent to sell alcoholic beverages on the premises of Sam’s Big Apple Number 2, located at 110 Manor Drive, Bartow, Polk County, Florida. Zahieh Awad Awadallah is the sole corporate officer and sole shareholder of El-Bireh, Inc. On January 18, 1997, as a result of a complaint from the City of Bartow, the Department initiated an investigation of Respondent’s premises located at 110 Manor Drive, Bartow, Polk County, Florida, for the sale of alcoholic beverages to persons under 21 years of age. On January 18, 1997, Special Agent Greenlee, along with another Department Special Agent, and Gabriel Shuler, went to Respondent’s licensed premises to investigate the sale of alcoholic beverages to persons under 21 years of age. Gabriel Shuler was born on January 7, 1978, and on January 18, 1997, was 19 years of age. At times pertinent to this proceeding, Shuler was 6 feet 6 inches tall and weighed 270 pounds. Shuler had a valid State of Florida driver’s license in his possession on January 18, 1997. The driver’s license carried Shuler’s correct age, height, and weight. The Department’s special agents present at Respondent’s licensed premises on January 18, 1997, instructed Shuler to enter the premises and attempt to purchase an alcoholic beverage. Shuler was also instructed to produce his driver’s license for identification, if requested, and not to attempt to deceive the clerk as to his correct age. Shuler entered the licensed premises and selected a 16-ounce can of “Budweiser” beer from the cooler inside the premises. Shuler purchased this 16 ounce can of “Budweiser” beer from a person later identified as Zahieh Awad Awadallah, the sole shareholder of Respondent. Sahieh Awad Awadallah did not ask Shuler for any identification or ask Shuler if he was 21 years of age. The 16 ounce of “Budweiser” beer purchased by Shuler from Respondent was in a container labeled “beer” and contained “beer,” an alcoholic beverage. The Respondent has not denied that Shuler purchased the beer. Special Agent Greenlee entered the licensed premises after Shuler and witnessed the sale of the beer to Shuler by Respondent. After purchasing this beer, Shuler exited the premises. Upon Shuler’s exiting the premises, the Department’s Special Agent took custody of the beer. Respondent was subsequently advised of the violations by Special Agent Greenlee and was issued a Notice to Appear by Special Agent Greenlee. There is sufficient evidence to show that Sahieh Awad Awadallah, the sole shareholder of El-Bireh, Inc., d/b/a Sam’s Big Apple Number 2, sold a 16-ounce can of “Budweiser” beer, an alcoholic beverage, to Gabriel Shuler, a person under the age of 21 years, without asking Shuler his age or requesting Shuler to produce identification showing his age to be 21 years. There are no mitigating circumstances which would support a reduction of the standard penalty imposed for the violation alleged in the Administrative Action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and having reviewed the penalty guidelines set forth in Rule 61A-2.022, Florida Administrative Code, it is recommended that a final order be entered finding Respondent guilty of violating Section 562.11(1)(a), Florida Statutes, and for this violation that the Department issue an administrative fine in the amount of $1,000 against Respondent and that Respondent’s alcoholic beverage license number 63-02202, ZAPS, be suspended for a period of 7 days. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997. COPIES FURNISHED: James D. Martin, Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Brandon Rafool, Esquire Post Office Box 7286 Winter Haven, Florida 33883 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On November 7, 1985, Marcos E. Cardenas, store manager of the Save-A- Step store, the licensed premises operated by the Respondents, DeCardenas and Bates, at 11005 N.E. 6th Avenue in Miami, Florida, under 2APS alcoholic beverage license 23-01862, sold, gave, served or permitted to be served a six- pack of 12 ounce cans of Budweiser beer to E.O., an individual 18 years of age. As a result of this sale, which was observed by Officer Beverly Jenkins, the Respondents were issued an official notice indicating that the offense had taken place and what it was. The purpose of this violation notice is to give the Respondent/licensee a warning of the OABT's policy regarding sale of alcoholic beverages to minors and the laws of the State of Florida prohibiting such activity. Ordinarily a disciplinary charge does not result from a first offense. Somewhat later, on February 5, 1986, however, the Respondents, this time through employee Enrique Mario Ribas, a clerk at the same store, also sold, gave, served or permitted to be served a 12 ounce container of Michelob beer to a 17 year old individual, K.A.W. On this second occasion, the Respondents were served with a final letter of warning indicating that this was the second offense and urging the licensees to strongly and personally address the problem. The licensee was also advised that if he or an employee violated the law for a third time, a Notice to Show Cause would be filed including past violations and as a result, the license would be subject to discipline. Notwithstanding this, on May 28, 1986, Eric William Guzman, a store clerk in Licensees' facility, sold, gave, served or permitted to be served a 12 ounce can of Old Milwaukee Light beer to a 19 year old underage individual, H.M. All three violations took place on the licensed premises and all three constituted a violation of the statutes. As a result of this third violation, and consistent with the terms of the final letter of warning, a Notice to Show Cause was filed alleging all three violations. It is the policy of DABT to impose, for a third offense of this nature, a $1,000.00 fine and a 20 day suspension of the license. There is, however, an opportunity for this penalty to be mitigated and counsel for Petitioner stipulated that a suspension is not always included as an action for violations of this nature. Mitigation activity, however, is that activity shown by the licensee to indicate what efforts he or she has made to prevent repeated actions of the nature involved here. It is not sufficient that the offending employee be discharged upon commission of the offense, though there was no evidence that was done here. Mitigation would be those actions take in advance of the offense, of a prophylactic nature, to insure as best as is possible that future offenses do not occur. Here, according to Sergeant Jenkins, who was present at the first violation, the licensees had displayed no signs or other indications on the licensed premises that individuals under the lawful drinking age would not be allowed to purchase alcoholic beverages. In short, Respondents offered no mitigation evidence to reduce the gravity of the offense. The personal representative's argument will be considered.
Recommendation RECOMMENDED that Respondents' 2 APS alcoholic Beverage license number 23- 01862 be revoked. RECOMMENDED this 15th day of June, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 15th day of June, 1987. COPIES FURNISHED: Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 W. Douglas Moody Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Rene M. Valdez, pers. rep. 1830 N.W. 7th Street Miami, Florida 33125 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 =================================================================
Findings Of Fact Wiley U. Pridgett, d/b/a Strip World Topless Entertainment, holds a Series 2-COP license to sell alcoholic beverages at 2201 South Orange Blossom Trail, Orlando. Petitioner has requested a new Series 2-COP license to operate at the same location. Petitioner has no specific plans for the use of her license. Her testimony established only that she ha a a close relationship with Wiley U. Pridgen and would look to him for guidance.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State of Florida, Division of Alcoholic Beverages and Tobacco, enter a final order denying the application of Cheryl Ann Nascimento for an alcoholic beverage license. DONE AND ENTERED this 25th day of March, 1981, in Tallahassee, Leon County, 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 25th day of March, 1981. COPIES FURNISHED: H. Franklin Robbins, Jr., Esquire 112 South Lake Avenue Orlando, Florida 32801 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact 10. The Division hereby adopts and incorporates by reference the Finding of Fact in foto, as set forth in the Recommended Order.
Conclusions The Director, Division of Alcoholic Beverages and Tobacco, Department of Business and Professional Regulation (hereinafter’Division’), after consideration of the complete record of this case on file with the Division, hereby enters this Final Order.
The Issue The issue is whether Respondent sold an alcoholic beverage to a person under 21 years of age, in violation of Section 562.11(1)(a), Florida Statutes.
Findings Of Fact Petitioner has granted Respondent license number 51- 02167, 1APS, for the sale of alcoholic beverages. Respondent received its first temporary license for the sale of alcoholic beverages on November 24, 1997. The license authorizes Respondent to resell package sales of only beer, as well as other alcoholic beverages under six percent alcohol by volume. Respondent's sole officer and shareholder is Mei-Rong Manley. Respondent operates a gas station at 1201 4th Street West in Bradenton. On the day in question, Ms. Manley was the sole employee present. K. W. was born on February 23, 1983. In March 1999, he was six feet, two inches tall and weighed 160 pounds. Petitioner randomly selected Respondent's store for an undercover purchase. Petitioner had not previously received a complaint that Respondent was selling alcoholic beverages to underage persons. The record does not reveal a prior instance of an underaged sale of alcoholic beverages by Respondent. On March 19, 1999, K. W. entered Respondent's store, walked directly to the beer cooler, and picked up a 12-pack of Budweiser alcoholic beer. He then carried the 12-pack of beer to the checkout counter. Shortly after K. W. entered the store, one of Petitioner's plainclothes agents entered the store, posing as a customer, but secretly observing the situation. There were no other persons in the store besides Ms. Manley, K. W., and the agent. When K. W. reached the checkout counter, he laid down the 12-pack of beer. Ms. Manley stated the purchase price of the beer as $8.55. K. W. gave her a larger sum in currency, and Ms. Manley returned to him the proper change. K. W. then left the store with the beer. He had been in the store 3-4 minutes. At no time did Ms. Manley ask K. W. how old he was. At no time did Ms. Manley ask K. W. to produce identification. Ms. Manley also claims that she was distracted when making the sale to K. W. She alternatively claims that she was concerned that the plainclothes agent was preparing to steal something and that she was engrossed in doing bookkeeping when K. W. approached the counter. The evidence does not support these alternative claims, which are somewhat conflicting. Ms. Manley claims to have believed that K. W. was well past 21 years of age. A native of Taiwan, Ms. Manley has resided in the United States for the past 15 years. Her belief was unreasonable. While making the purchase, K. W. wore a dark Calvin Klein t-shirt and shorts. He is a tall person, but not of considerable weight. Moreover, his youthful face and manner of presenting himself do not suggest that he is over 21 years of age. A diligent merchant of alcoholic beverages could not have mistakenly assumed that K. W. was over five years older than the 16 years that he was at the time of the purchase.
Recommendation It is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of violating Section 562.11(1)(a) and imposing an administrative fine of $1000 and a license suspension of seven days; provided, however, that Respondent may elect to reduce the fine and add to the suspension at the ratio of $50 of fine for one day of suspension, so that, for example, she may eliminate the fine altogether by accepting a suspension of 27 days (7 days provided by rule plus the 20 additional days to reduce the fine to 0). DONE AND ENTERED this 8th day of September, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 8th day of September, 1999. COPIES FURNISHED: Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ruth Nicole Selfridge Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mei-Rong Manley President Sheauray, Inc. 1201 14th Street, West Bradenton, Florida 34205
The Issue The issue in this case is whether the alcoholic beverage license of Harold Haffner, Jr., and Catherine B. Haffner, d/b/a Bay's Produce Market (Respondents) should be disciplined by the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner), based on actions they are alleged to have taken on October 18, 1988, in the sale of a can of beer to a person under 21 years of age.
Findings Of Fact At all times material hereto, Respondents have held an alcoholic beverage license issued by the Petitioner, number 39-02010-1-APS, and have done business at 6609 South Westshore Boulevard, Tampa, Florida, as Bay's Produce Market. On October 18, 1988, Respondent Catherine B. Haffner sold a can of beer to James L. Leschner, whose birthdate is November 21, 1970. At the time of this sale, Leschner was 17 years of age. At the time of this sale, Respondent Catherine B. Haffner testified that Bay's Produce Market was very busy since it was around noon. She did not check Leschner's identification, or even ask him his age. She testified that he looked 25 years old, and she simply assumed he was at least 21 years of age because he was approximately 6 feet 3 inches tall. The Petitioner's investigator, William P. Fisher, disputed Respondent's testimony. The store was not very busy, and only three customers were in the store, including Leschner, Fisher, and one other investigator. Based upon the demeanor of the witnesses, the testimony of Fisher is found to be more credible than that of Respondent. It is, therefore, found that Bay's Produce Market was not filled with many lunchtime customers, but rather, only Leschner and two other people were in the store at the time Respondent sold him a can of beer. Leschner did not show Respondent any false identification, or misrepresent his age. He was simply not asked for any identification, or about his age.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order suspending Respondents' license to sell alcoholic beverages for a period of thirty days, and imposing an administrative fine of $500. DONE AND ENTERED this 28th day of August, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1989. APPENDIX (DOAH CASE NO. 89-0804) Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Adopted in Finding 2. 4. Adopted in Finding 3. The Respondents did not file Proposed Findings of Fact. COPIES FURNISHED: John B. Fretwell, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Robert H. Carlton, Esquire 1101 East Jackson Street Tampa, Florida 33602 Steven Royal, Esquire 209 North Brush Street Tampa, Florida 33602 Joseph A. Sole, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara, Secretary Dept. of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
Findings Of Fact Respondent is the holder of Beverage License No. 26-751 permitting the sale of alcoholic beverages from her store at 1155 Jessie Street, Jacksonville, Florida. This business is a convenience store known as Agel Grocery. Respondent's husband has been co-owner of this business since the outset, and participates in its operation and management. When the Morenes applied for an alcoholic beverage license in June, 1980, they believed Frank Morene was ineligible and intentionally omitted his name from the application.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is That Respondent be found guilty of filing an incorrect application in violation of Subsection 561.17(1), Florida Statutes (1979). It is further RECOMMENDED: That Respondent's Alcoholic Beverage License No. 26-751 be suspended until Respondent files and secures approval of a correct application or demonstrates that any direct or indirect interest of Frank Morene in the licensed business has been removed. DONE and ENTERED this 7th of August, 1981, in 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 7th day of August, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mrs. Saundra Morene c/o Agel Grocery 1155 Jessie Street Jacksonville, Florida 32206
