The Issue The issues to be resolved in this proceeding concern whether the Respondent's beverage licensure should be subjected to sanctions for allegedly selling alcoholic beverages to a minor and what if any penalties should be imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating licensure, and practice under that licensure, of alcoholic beverage-selling entities in the State of Florida, including administration of the laws and rules related to the selling of alcoholic beverages by restaurant businesses. The Respondent is an entity licensed and domiciled in the State of Florida and authorized to sell alcoholic beverages under license number 55-00306, Series 2-COP. The Respondent is subject to the Division's regulatory jurisdiction. The subject license allows the Respondent to make sales "by the drink" for consumption on the premises at the restaurant business located at 1766 S. Eighth Street, Fernandina Beach, Florida. On October 22, 2002, Ms. Deidre Kaye Miller, then 18 years of age, was employed as an I.A. by the Petitioner Agency for the purpose of attempting to purchase beer at the Respondent's restaurant. She was paid a total of $35.00 for her services as an undercover operative that day by the Division. She was given instructions by Agent Edwards and Agent Maxwell to attempt to purchase an alcoholic beverage from the Respondent. Ms. Miller was told that if asked for identification she was to show her valid Florida Driver's License, if asked her age to tell her correct age and not to engage in any extensive conversation with anyone. On October 22, 2002, Ms. Miller entered the restaurant and walked to the left of the entrance where the bar was located. A waitress asked what she wanted and she told her she wanted a Corona (Beer). After Ms. Miller ordered the beer from the waitress the owner and Respondent Mr. Wong came over and asked for her identification. She provided her driver's license as an I.D. to Mr. Wong. As he was checking her driver's license the waitress, Tabitha Cornett, opened the Corona and set it on the counter so that it would be ready when Mr. Wong approved giving Ms. Miller the beer. The point on the bar where the beer was placed was approximately 16 feet away from where Mr. Wong and Ms. Miller were having the conversation about her I.D. Mr. Wong viewed Ms. Miller's Driver License I.D. for 30 or 45 seconds. The driver's license had her correct name and date of birth, which was in 1984, and a statement printed on the license which said "Under 21 until 09-02-05." Mr. Wong allowed the beer to be served to Ms. Miller. Ms. Miller took the beer and placed it on a table near the bar. She then indicated to the waitress that she was going to call friends to meet her and walked outside the restaurant, leaving the beer on the table. In restaurant sales situations, IAs are instructed to depart the premises once they have been served alcohol. Generally payment will not be tendered because, in restaurant situations, the law and licensure calls for consumption on the premises and it is customary to consume the alcohol and pay for at the end of one's stay at the restaurant. In the instant situation neither Ms. Miller nor anyone else ever paid for the beer in question. Mr. Wong acknowledged in a due diligence statement taken at 5:30 p.m., on the day in question October 22, 2002 (in evidence as Petitioner's Exhibit four) that he checked the I.D. but he wasn't wearing his glasses and he thought it said that Ms. Miller was born in 1964. He asked her, "You were born in 64?" He said in his statement that Ms. Miller did not reply to him and then he states (in his due diligence statement) that he told her that she was too young for that I.D. and again she said nothing. He again asked her if this was her I.D. and she said nothing. He handed it back to her. He then said in the statement: "I did not want to insult someone so I allowed it served." In other words he questioned whether she was old enough based upon the I.D. he saw; believing it to say 1964 because he did not have his glasses on, but also believing that she appeared too young for that I.D. Ms. Miller left the premises and Agent Edwards and Agent Maxwell entered the premises and informed Mr. Wong that he had just allowed service of alcohol to a minor. Thereafter Mr. Wong was placed under arrest handcuffed, and taken to the Nassau County Jail. Mr. Wong had never had any beverage-related offense on his record prior to that time. No investigation or prosecution concerning his business had ever occurred up to that point. A criminal prosecution was instituted against him concerning this same incident and facts, which resulted in a jury verdict of acquittal. The totality of the evidence shows that although Mr. Wong did not actually serve Ms. Miller, he did allow a beer to be served to her. She was under 21 years of age. Mr. Wong testified that even though one person checks identification, any employee can open a beer and place it on the counter or service bar. Ms. Cornett did so in this case, placing the beer at the far end of the service bar from where Mr. Wong and Ms. Miller were conversing concerning her I.D. This allows the beer to be ready once the person checking the I.D. authorizes the sale. In the situation at hand, Ms. Cornett opened the beer, placed in on the bar and Mr. Wong then went through the door away from the bar into the main part of the restaurant. Ms. Miller, the I.A., then took the beer from the bar and placed it on the table and told Ms. Cornett that she was going outside to meet her friends or to call her friends. After that occurrence the other agents named above came in, explained the situation to Mr. Wong, and arrested him during the course of which discussion he made the above-referenced statement. Mr. Wong never touched the beer in question and Ms. Cornett never actually physically handed it to Ms. Miller, but both Mr. Wong and Ms. Cornett allowed Ms. Miller to take the beer from the bar and place it on her table, thus taking the beer into her own custody and control at least temporarily, even though no money was exchanged in return for the beer.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, finding that the Respondent violated Section 562.11(1)(a), Florida Statutes, and that he be required to pay a $250.00 fine to the Division. DONE AND ENTERED this 31st day of July, 2003, in Tallahassee, Leon County, Florida. S COPIES FURNISHED: Christina Pardieck, Assistant General Counsel P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 31st day of July, 2003. Division of Alcoholic Beverage and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Gary Barker, Esquire Post Office Box 1177 Callahan, Florida 32011 Hardy L. Roberts, III, General Counsel Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Peter Williams, Director Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner established, pursuant to section 1012.33(1)(a), Florida Statutes (2011),1/ "just cause" to terminate Respondent from employment based on a breath alcohol level of 0.112, as alleged in the Administrative Complaint dated February 8, 2012.
Findings Of Fact In January 2003, Petitioner hired Respondent to teach exceptional student education courses. Since commencing her employment with Petitioner, Respondent has always received an annual performance evaluation rating of no less than fully satisfactory. Respondent has a bachelor's degree in exceptional student education and, most recently, received a master's degree with an endorsement in reading and special education. For the 2011-2012 academic school year, Respondent was employed by Petitioner pursuant to a professional services contract. Respondent's professional services contract provides that "THE TEACHER SHALL BE BOUND TO SERVE AS PROVIDED IN SECTION 1012.33, FLORIDA STATUTES," and "SHALL NOT BE DISMISSED DURING THE TERM OF THIS CONTRACT EXCEPT FOR JUST CAUSE AS PROVIDED IN SECTION 1012.33(1)(a), FLORIDA STATUTES." (Capitalization in original). The contractual term of Respondent's contract covered the period of August 16, 2011, through June 8, 2012. On the morning of January 13, 2012, Respondent began her day by dressing both herself and her two-year-old daughter. Respondent safely drove her daughter to daycare and then proceeded to safely drive herself to Bayshore High School. Respondent arrived at school around her customary time of between 7:15 a.m. and 7:25 a.m., parked her car in the school's parking lot, without incident, and then entered the school building where she checked her mail, walked to her classroom, and made general preparations for the school day, which included briefly exchanging pleasantries with her colleague, Michele Neathery. Although the exchange between Respondent and Ms. Neathery was brief, at no time during the encounter did Ms. Neathery smell alcohol about Respondent's person or observe Respondent behaving in a way that would suggest impairment. Respondent's first instructional period of the day on January 13, 2012, started at 8:50 a.m., and ended at 10:20 a.m. A.M. was a student in Respondent's first class and also served as Respondent's classroom aide. At the time of the final hearing, A.M. was 19 years old. A.M. testified that on January 13, 2012, Assistant Principal Ginger Collins came to Respondent's classroom and asked her to step into the hallway. Before this occurred, A.M. had conversed with Respondent for about ten minutes, and during this time, he did not notice anything unusual about Respondent's appearance or her behavior. At approximately 10:20 a.m., on the day in question, Ms. Collins had gone to the classroom occupied by Respondent to discuss with her a situation from the previous day that involved one of Respondent's students. Ms. Collins entered the classroom occupied by Respondent and asked Respondent to step into the hallway with her so that they could discuss the situation from the previous day. Respondent complied with the request from Ms. Collins, exited the classroom, and positioned herself outside of her classroom door so that she could speak with Ms. Collins and simultaneously monitor her students through the window of the door to the classroom. Respondent, while speaking with Ms. Collins in the alcove to her classroom, observed that two of her students were not on-task. Ms. Collins, from her vantage point, did not observe the two students that Respondent saw who were off-task and otherwise did not witness any "rambunctiousness or loud behavior" in Respondent's classroom. Respondent, in an attempt to alert the two students to the fact that they were being monitored and to otherwise get them back on-task, slapped her hand against the door three times. Ms. Collins had never observed Respondent use this student management technique. Because Ms. Collins did not see that two of Respondent's students were off-task during the time when she conversed with Respondent, Ms. Collins thought it was odd and out of character for Respondent to have slapped the classroom door for what to Ms. Collins, was no apparent reason. Although Ms. Collins thought it "odd" when Respondent slapped the door, Respondent's student, A.M., credibly testified that prior to January 13, 2012, he had witnessed Respondent slap her hand against the door a "couple of times before" as a technique for refocusing her students. There was no evidence offered during the hearing that slapping a door with one's hand is an inappropriate classroom management technique. Respondent's act of slapping the door with her hand is not evidence of Respondent's normal faculties being impaired but is instead, under the circumstances, evidence that her faculties were intact. Respondent was able to observe and appreciate that two of her students were off-task and she responded by taking appropriate corrective action to redirect the errant students. Had Respondent not taken such corrective action, it would certainly make for a more credible assertion that her normal faculties were impaired because, then, it could be said that Respondent was unable to appreciate the need to correct her students because of alcohol-related influences on her judgment. This, however, is not the case. Furthermore, the evidence establishes that all of Respondent's students were on-task until Respondent was asked to step into the hallway by Ms. Collins. The fact that all of Respondent's students were on-task when Ms. Collins initially entered Respondent's room is further indication that Respondent was in control of her classroom and not suffering from diminished faculties related to alcohol consumption. When Ms. Collins conversed with Respondent outside of Respondent's classroom, Ms. Collins became concerned about allowing Respondent to return to the classroom because Ms. Collins observed that Respondent "was covering her mouth" with her hand when she spoke, was shifting her body "from side to side," had a strong smell of alcohol emanating from her person, and was speaking louder than usual. Although Ms. Collins had concerns about Respondent's ability "to return to the classroom," Ms. Collins did not monitor Respondent's performance in the classroom upon completion of their conversation. According to evidence stipulated to by the parties, one of the behaviors associated with alcohol-related impairment is "decreased inhibition." The word "inhibition" is defined as "a mental process imposing restraint upon behavior or another mental process." Merriam-Webster Online Dictionary. Respondent's act of covering her mouth while speaking is not evidence of decreased inhibition, but is, instead, evidence of heightened inhibition. Respondent was cognizant of the smell of her breath and by covering her mouth with her hand, she was taking steps which were reasonably designed to deflect any offending breath-related odor. Had Respondent suffered from "decreased inhibition," then it is certainly more likely that Respondent would have spoken to Ms. Collins in such a way as to not have shielded Ms. Collins from any smells that may have been emanating from Respondent's mouth. After completing her initial conversation with Respondent, Ms. Collins immediately shared her concerns about Respondent with Assistant Principal Baron McCombs, Respondent's supervisor. Within a few minutes of being alerted to the situation by Ms. Collins, Mr. McCombs went to Respondent's classroom. Mr. McCombs entered Respondent's classroom and asked Respondent to accompany him to his office. The total time that Mr. McCombs was in Respondent's classroom was "[j]ust a matter of seconds." During the few seconds that Mr. McCombs observed Respondent in her classroom, he noticed that Respondent "was acting very out of character . . . sort of flamboyantly, [and] [h]er voice was sort of boisterous, and her hands were sort of flailing, and her speech patterns were sort of elongated." Mr. McCombs described Respondent as usually being a very reserved person. Although Mr. McCombs observed Respondent behaving in a manner that he considered "out of character," he did not believe that Respondent's behavior was detrimental to her students. Respondent admits the behaviors described by Mr. McCombs, but credibly testified that the observed behaviors were intentionally orchestrated because she was trying to get her students excited about learning about President George Washington and his false teeth. Mr. McCombs and Respondent exited her classroom and walked together to his office. During the walk to his office, Mr. McCombs did not observe Respondent staggering or otherwise having difficulty ambulating. Once in Mr. McCombs' office, Respondent and Mr. McCombs spoke briefly about an incident from the previous day involving one of Respondent's students. Respondent did not elongate her words while speaking with Mr. McCombs in his office, and according to Mr. McCombs, Respondent's demeanor at the time was "reserved." Ms. Collins entered Mr. McCombs office within a few minutes of Respondent's arrival, and once Ms. Collins took her seat, the conversation shifted to the real reason why Respondent had been summoned to the office by Mr. McCombs. Mr. McCombs informed Respondent that she was suspected of being under the influence of alcohol. Respondent's initial response to the accusation was to say, "Oh my God, I can't believe that this is happening," and she then became emotional and started to cry. When questioned, Respondent admitted that she had been drinking the night before. Specifically, Respondent admitted that she had her last drink "somewhere around 1:00 or 1:30 in the morning." Mr. McCombs left the room to report the matter to school Principal David Underhill. While waiting for Mr. Underhill to arrive, Respondent continued to converse with Ms. Collins. Respondent asked questions about the protocols and procedures related to the allegations and also wanted to know the impact of the situation on her employment. While discussing these issues with Respondent for more than an hour, Ms. Collins did not detect that Respondent's "speech was slowed or sluggish." Mr. Underhill eventually arrived and explained to Respondent the procedures and protocols associated with suspected impairment testing. At about 12:30 p.m. Ms. Collins, who had been with Respondent the entire time since entering Mr. McCombs' office, prepared to transport Respondent to the medical clinic for suspected impairment testing. Before leaving for the clinic, Ms. Collins escorted Respondent to her car to retrieve some items. The walk to Respondent's car took about five minutes. During the walk, Ms. Collins observed that Respondent did not experience any difficulty walking and that Respondent was coherent. Ms. Collins drove Respondent to the medical clinic for suspected impairment testing. Once at the medical clinic, Respondent provided two breath samples for a breathalyzer testing machine that measured Respondent's breath-alcohol level at 0.112. Since commencing employment with Petitioner, this was Respondent's first positive, confirmed alcohol test. The testing protocol at the medical clinic was such that Respondent met with a nursing assistant and stayed in the presence of the nursing assistant throughout the testing process. During the 20 or so minutes that Respondent was with the nursing assistant, it was observed by the nursing assistant that Respondent was coherent, she understood instructions that were given to her, and her speech was not sluggish. The nursing assistant did observe that Respondent had glassy eyes. After completing her final breathalyzer test, Respondent met with medical doctor Craig Trigueiro for about five to ten minutes. Dr. Trigueiro has been a physician for 37 years. When Dr. Trigueiro evaluates patients for suspected alcohol impairment, he described his process for face-to-face evaluation as follows: I look at them. I smell their breath. I observe their behavior. I ask them various questions, and then I document everything on the drug testing forms. [T-17] When Dr. Trigueiro met with Respondent, he noted the following on her drug testing form: Admits to last p.m. drinking until 1:00 a.m. In Alcoholics Anonymous. Glassy eyed. Has alcohol on breath. Breath alcohol, 0.112 and 0.112. Assistant principal. Ginger Collins here. Legally under the influence. Acutely intoxicated and cannot drive. Dr. Trigueiro stated that he noticed that Respondent was "a little unsteady on her feet," but on cross-examination, admitted that Respondent's apparent unsteadiness could have been related to causes other than alcohol consumption. Dr. Trigueiro, contrary to his stated practice of "document[ing] everything on the drug testing form," did not note on Respondent's drug-testing form that she was "a little unsteady on her feet." Dr. Trigueiro also testified that he noticed that Respondent was "sluggish in her speech." On cross-examination Dr. Trigueiro admitted that he did not mention on Respondent's drug-testing form that Respondent was "sluggish in her speech." Dr. Trigueiro testified that the reason why he did not note on Respondent's drug-testing form his observations of Respondent's sluggish speech and her being unsteady on her feet, was because he "didn't think that this type of situation would end up in court." Dr. Trigueiro stated that had the instant case been one involving "great bodily harm or death," as opposed to one merely involving an employer for-cause breath test, he would have performed a higher level of medical examination that would have included diagnostic exams, such as the "finger to nose" and "heel to toe" test. In Dr. Trigueiro's opinion, Respondent's intoxication was "cut and clear" because she had a breath-alcohol test which showed that Respondent was "legally intoxicated." Contrary to Dr. Trigueiro's conclusion that Respondent was "legally intoxicated," a breath-alcohol level of 0.08 or higher does not establish, ipso facto, "legal intoxication," but instead merely establishes a rebuttable presumption, as it relates to the operation of a motor vehicle, that a person is under the influence of alcoholic beverages to the extent that his normal faculties are impaired. § 316.1934(2)(c), Fla. Stat. Specifically, section 316.1934(2) provides that the presumptions created therein do "not limit the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired." Id. Ms. Collins was with Respondent when she was seen by Dr. Trigueiro. According to Ms. Collins, when Dr. Trigueiro spoke to Respondent "he was very upset" and treated Respondent quite harshly. When Respondent told Dr. Trigueiro that she had been drinking until about 1:00 a.m., Dr. Trigueiro said to Respondent: "Do you think I'm a fool?" Dr. Trigueiro went on to state that he had been practicing medicine for over 30 years and that Respondent could not have consumed her last drink at the stated hour and then some twelve hours later have a breath- alcohol level of 0.112. Despite this initial assertion by Dr. Trigueiro, he, nevertheless, admitted on cross-examination that some people are more tolerant of alcohol than others and that not all individuals metabolize alcohol at the same rate. According to Dr. Trigueiro: The more alcohol someone drinks, the more enzymes in the liver exist to detoxify alcohol, which is why someone who drinks all the time has to drink more alcohol to . . . get a buzz to become--you know, feel the central nervous system effects of the alcohol. So someone who drinks a lot has to drink more alcohol simply because the liver enzymes are revved up to detoxify alcohol; whereas someone who doesn't drink much alcohol would become intoxicated at a much lower beverage intake, alcohol intake because the liver enzymes are not induced by chronic drinking. Dr. Trigueiro did not perform any tests on Respondent to determine that rate at which her body metabolizes alcohol. Dr. Trigueiro's medical opinion establishes that Respondent had glassy eyes, but does not establish that Respondent's normal faculties were impaired. When asked specifically if Respondent's "normal faculties were impaired," Dr. Trigueiro could only state that Respondent was "clinically impaired." Petitioner did not offer any evidence as to whether "clinical impairment" is synonymous with impairment of one's normal faculties, and Dr. Trigueiro's response suggests that the two standards are not synonymous. Dr. Trigueiro was more concerned with lecturing Respondent about her alcohol consumption, as opposed to conducting a thorough assessment of Respondent's level of functional impairment. Dr. Trigueiro obviously believed that a more thorough evaluation of Respondent's level of cognitive functioning was unwarranted because in his opinion, Respondent's case was "cut and clear" due to her breath-alcohol level of 0.112 and the fact that this was merely a case involving an employer for-cause evaluation. The greater weight of the competent substantial evidence establishes that when Respondent reported to school on January 13, 2012, and through and including the time that she met with Dr. Trigueiro, she was coherent, she was able to process information that was communicated to her and provide appropriate responses thereto, she was oriented to time and place, her speech was not sluggish or slurred, and she did not have any difficulty ambulating. The greater weight of the competent substantial evidence also establishes that during all times relevant hereto, the glassy appearance of Respondent's eyes was the only objective manifestation of the alcohol that was in Respondent's system and that the presence of "glassy eyes" does not establish in and of itself that a person's normal faculties are impaired. Respondent admits to being a recovering alcoholic. She is actively involved in an alcoholics support group and consults with her sponsor regularly. Near the end of the 2010-2011 academic school year, Respondent was experiencing difficulty in maintaining sobriety. There was no evidence presented that Respondent's challenges with maintaining sobriety during the previous school year negatively impacted her performance in the classroom. In recognition of her challenges, Respondent self-disclosed to the school principal, Mr. Underhill, her challenges with alcohol and requested a leave- of-absence so that she could receive in-patient treatment. Respondent's request for leave-of-absence was granted, and she attended and completed a rehabilitation program. Mr. Underhill, when asked about whether he had concerns about Respondent being in the classroom with students with alcohol in her system, testified that he "would be extremely concerned when a teacher in a classroom has to make multiple decisions, all at any given time, that any type of circumstances can arise [and Respondent's] level of [breath] alcohol is going to impair good judgment." Petitioner did not offer any credible evidence establishing that on January 13, 2012, Respondent's judgment was impaired or that she had difficulty, or would likely have difficulty, making appropriate decisions while in her classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The violations alleged in paragraphs 10, 12, 13, and 14 of the Administrative Complaint should be dismissed. The violation alleged in paragraph 11 of the Administrative Complaint should be dismissed to the extent that it seeks to establish just cause for termination of Respondent's employment. Paragraph 11 of the Administrative Complaint should be sustained to the extent that it establishes grounds for imposing non-terminable discipline against Respondent. Respondent shall be suspended, without pay, for a period of 60 calendar days. Respondent shall not be eligible to use any accrued leave during her period of suspension. Upon return from her suspension, Respondent, during the remainder of the 2012-2013 academic year, shall at her expense be subject to random alcohol testing as determined by the Manatee County School Board or its designee. A positive alcohol test shall result in further disciplinary action. Upon return from her suspension, Respondent, during the remainder of the 2012-2013, shall be assigned to a position where she does not have responsibility for the supervision of students. During Respondent's period of suspension, she shall remain eligible to participate in the Employees' Assistance Program and shall enroll in and successfully complete an alcohol dependency program. Respondent may be subject to disciplinary action should she fail to successfully complete the alcohol dependency program. DONE AND ENTERED this 16th day of August, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2012.
The Issue The issue is whether the City of Gainesville ("City") properly issued an Underage Prohibition Order to Petitioner, Clark DP Investments, Inc., d/b/a The Bank Bar and Lounge ("The Bank") pursuant to section 4-53, Gainesville Code of Ordinances.
Findings Of Fact The City is a municipal corporation organized under the laws of the State of Florida. In 2009, the City adopted Chapter 4, Article III of the Gainesville Code of Ordinances, titled "Underage Prohibition in Alcoholic Beverage Establishments," referenced herein as the "Ordinance." The Bank is an alcoholic beverage establishment as defined in section 4-51 of the Ordinance and is located within the city limits of the City. The Bank's address is 22 West University Avenue, Gainesville, Florida. Section 4-51 of the Ordinance defines "underage drinking incident" as follows: Underage drinking incident means any physical arrest or notice to appear (NTA) issued for possession or consumption of an alcoholic beverage by a person under the age of 21 which results in an adjudication of guilt, finding of guilt with adjudication withheld, waiver of right to contest the violation, plea of no contest including, but not limited to, payment of fine or civil penalty, or entering into an agreement for deferred prosecution. Section 4-51 of the Ordinance defines "underage prohibition order" as "an order issued by the city manager or designee which prohibits an alcoholic beverage establishment as herein defined from admitting patrons under the age of 21 into such establishment during specified times." Section 4-53 of the Ordinance provides that an alcoholic beverage establishment will be issued an underage prohibition order if a certain number of underage drinking incidents have occurred at the establishment during a given calendar quarter. For alcoholic beverage establishments with an aggregate occupancy load of fewer than 201 persons, the number of underage drinking incidents triggering a prohibition order is five or more in a quarter. For establishments with an aggregate occupancy load of more than 201, the number is ten or more in a quarter. The Bank has an aggregate occupancy load of 207 persons. On September 27, 2012, the City served The Bank with an Underage Prohibition Order (the "Order"). The Order, dated September 25, 2012, was based on 12 underage drinking incidents that occurred at The Bank during the third quarter of 2012. Subsequent to the issuance of the Order, an additional three underage drinking incidents arose. The Bank was given timely notice of these additional incidents on November 21, 2012, and they became part of this case. At the hearing, the City demonstrated that GPD officers made 15 arrests for underage drinking incidents at The Bank during the third quarter of 2012, and that it secured deferred prosecutions or adjudications in all 15 cases. Five GPD officers and a sergeant testified at the hearing as to the particulars of these arrests and as to GPD's general practices in policing underage drinking in downtown Gainesville. The GPD has a specially assigned unit to patrol a downtown area consisting of the square formed by Northwest 3rd Avenue, Southwest 3rd Avenue, Southeast 3rd Street, and Northeast 3rd Street. Officer Justin Torres estimated that there are between 20 and 30 alcoholic beverage establishments in the roughly one-square-mile downtown area. The downtown unit performs patrols for underage drinking in bars on Thursdays, Fridays and Saturdays from 4 p.m. until 4 a.m., and every other Wednesday from 7 p.m. until 3 a.m. Between three and four officers from the unit perform these patrols on a given night. The officers are in uniform as they make the rounds of the bars in the downtown area. They are given no particular assignment as to which bars they enter or what time they should go to a particular establishment. They try to cover all of the downtown bars without emphasizing any particular one. Officer Marquitta Brown testified that she would enter The Bank twice a night at most. None of the testifying officers was given any special training by GPD as to spotting underage drinkers or fake identification. They learned to scrutinize IDs through their general experience on the police force and especially by working with officers who were experienced members of the downtown unit.1/ Officers volunteer to serve in the downtown unit, and rotate off the unit after serving about one year. The testifying officers all stated that, when looking for underage drinking, they look for suspicious behavior rather than youthful appearance. They do not simply walk into a bar and start checking patrons' IDs. The typical scenario involves the officer walking through the bar. The suspect sees the uniformed officer, and then puts down his drink and walks away from it, or hands the drink to someone standing near him, or simply drops the drink into a trash can. At this point, the officer requires the suspect to produce identification and makes an arrest if the ID proves insufficient. Of the 15 arrests made in The Bank during the third quarter of 2012, nine were instances in which the underage patron gained entry to the bar by presenting false identification. Upon successfully presenting the false ID to the doorman, the patron would be given an "over 21" wristband that allowed the purchase of alcoholic beverages in The Bank. Persons under 21 were allowed into the bar but were not given a wristband or served alcoholic beverages. Eight of the nine instances of false ID involved the presentation of valid driver's licenses that belonged to other persons who were over the age of 21. In two of the cases, the arresting GPD officer testified that the photo on the driver's license did not look like the suspect. In one case, the officer testified that the false ID did look like the suspect. The record contains no indication as to the resemblance between the suspect and the false identification in the other five instances of the suspect's using another person's valid driver's license.2/ The ninth instance of false ID involved the use of a forged Ohio driver's license bearing the actual photo and identifying information of the underage suspect, but with a false date of birth. The arresting officer, Aaron Steman, testified that he identified the license as a forgery because it was very thick, which indicated to Officer Steman that the card stock used to create the license was thicker than that used by the state of Ohio. Officer Steman testified that he had received no special training in identifying driver's licenses from Ohio, but that his experience had made him familiar with the licenses from approximately 25 states.3/ Three of the 15 arrests involved an underage patron who was wearing an "over 21" wristband. The remaining three involved an underage patron who was not wearing a wristband but was in possession of an alcoholic beverage. The hearsay statements of the underage persons to the officers indicated that in each instance they procured either the wristbands or the drinks from persons over 21 who had obtained them lawfully.4/ None of the arresting officers observed an underage person obtaining an alcoholic beverage from an employee of The Bank. The testifying officers were unable to state how long any of the underage persons had been in possession of the alcoholic beverages. There was no evidence that any employee of The Bank knew that underage patrons were drinking alcohol and failed to act on that knowledge. The arresting officers testified that they had made arrests for underage drinking at other bars in downtown Gainesville. Officer Brown testified that on the great majority of nights she makes at least one arrest in a downtown bar. The officers also testified that there were numerous occasions when they walked on patrol through The Bank without making an arrest. At the time of the hearing, there were no administrative actions filed against The Bank's alcoholic beverage license by the Division of Alcoholic Beverages and Tobacco ("DABT"). Lieutenant Dean Plescia of DABT testified that in his experience, Mr. Clark of The Bank "was doing a pretty decent job" in checking IDs and keeping underage persons from obtaining alcoholic beverages in his establishment. Mr. Clark testified as to The Bank's efforts to deter underage drinking on its premises. Mr. Clark testified that he became the owner of The Bank three years ago but has worked there since it opened in 2001. He had extensive history in the bar and restaurant business prior to joining The Bank. Mr. Clark has done "everything that you can do within the industry." He has been a doorman, a bartender, and a bar manager. He is present at The Bank whenever it is open for business. Mr. Clark handpicks and trains every doorman who works at The Bank. Mr. Clark requires his doormen to be at least 21 years of age. He has hired professionals as doormen, including a former state attorney. Mr. Clark requires prospective doormen to provide job histories and references, and he personally checks the references. New doormen are first put to work roaming the bar looking for underage drinkers, and are only put on the door to check IDs after they are thoroughly oriented. Mr. Clark makes it clear to his doormen and serving staff that they will be fired if they are found to have admitted an underage patron without properly checking for ID or to have served alcoholic beverages to a patron who is underage. Mr. Clark testified that he has fired employees for violating this policy. Mr. Clark trains and instructs his doormen to require photo ID for all patrons. He further instructs the doormen regarding measures to ensure that the ID is valid and belongs to the person who presented it. Mr. Clark's methods are similar to those employed by the GPD officers who testified at the hearing, and are similarly based on years of experience in checking IDs. For example, Mr. Clark has instructed his doormen to check whether the driver's license number matches the patron's birth date. The doorman will match the patron's height and eye color against the information on the driver's license, and examine the photo for features matching those of the patron presenting the card.5/ The Bank has cameras that monitor the door staff and patrons seeking admission. Mr. Clark periodically employs "mystery shoppers" to test the doormen. The mystery shopper will ask the doorman for an "over 21" wristband without checking for ID in exchange for a bribe or as a favor. Mr. Clark testified that to his knowledge the mystery shoppers have never succeeded in gaining entry without proper ID. Mr. Clark testified that even where a patron provides what appears to be a valid ID, his doormen are instructed to inquire further if they have doubts about the patron's age. The doorman will ask the patron to give his birth date and address. If the patron's answer does not match the information on the driver's license, "that's a huge red flag immediately." In these doubtful situations, the doormen will also ask for a second form of ID, preferably one with a photograph. Mr. Clark testified that The Bank has recently stopped admitting international students based on international visas or international passports because of their lack of reliability. GPD officers have informed him that he should require a United States driver's license, military ID, or passport, and he has instituted this practice at The Bank. When a doorman is presented with false ID, he hands it back to the patron and denies him admittance.6/ Mr. Clark testified that on rare occasions he has allowed an underage patron to enter without a wristband if he shows legitimate identification after trying to pass with a false ID. However, the standard instruction to the doormen is to deny admittance on the principle that an underage person who tries to obtain a wristband with a fake ID is likely to try to get alcoholic drinks once he is inside the bar. Mr. Clark assigns as many as seven doormen to roam through the bar and make sure that no patrons without wristbands are in possession of alcoholic beverages. If an underage patron is found with an alcoholic drink, the patron is immediately ejected from the premises. The Bank uses tamper resistant plastic wristbands and changes the color and style of the bands frequently to avoid counterfeits. Mr. Clark purchases the wristbands from a non- local source to decrease the likelihood of duplicating the wristbands of another bar. The wristbands are rotated such that the same one is not used twice in a two-week period. The Bank's staff checks wristbands to make sure that they are not frayed or tampered with, which might indicate that an underage patron obtained the band from a person of lawful age. Mr. Clark reasonably believes that confusion is avoided by The Bank's practice of giving no wristband at all to patrons who are under 21, rather than relying on a system of color-coded wristbands for patrons who are over and under 21. Once a person leaves The Bank, he is not allowed re-entry. Mr. Clark believes that this practice lessens the chances of wristband sharing. The Bank has participated in the responsible hospitality vendor program when it has been offered by GPD. Mr. Clark testified that he and his staff have attended these training sessions on multiple occasions. Mr. Clark testified that he does not believe there are any policies or devices7/ which could improve The Bank’s efforts to identify and deter underage drinkers. He is aware of the methods employed by The Bank's competitors, and opined that none of them is doing more than The Bank to combat underage drinking and that "there are multiple places that are doing a lot less." Mr. Clark testified that he personally examined each of the false identification cards that had been used to obtain entry into The Bank. Mr. Clark believed that in each case the patron closely resembled the photo on the card. This testimony contradicts the GPD officers' testimony that two of the photo IDs did not bear a strong resemblance to the underage drinker. There is no central filing or tracking system for IDs that are confiscated by the GPD. None of the testifying officers had any idea how to recover the IDs or even who might be their custodian. The actual fake IDs were not introduced into evidence, making it impossible to enter a finding as to the diligence of The Bank's doormen regarding the two IDs in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Underage Prohibition Order issued to The Bank be vacated. DONE AND ENTERED this 28th day of March, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2013.
The Issue The issue for consideration in this matter is whether Respondent's 2APS alcoholic beverage license No. 15-02229, should be disciplined because of the matters set out in the Notice to Show Cause issued by the Department on November 13, 1991.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Ajitkumar L. Naik, operated the Circle A Food Mart in Rockledge, Florida under a 2APS Cigarette permit No. 15-02229. The Department of Business Regulation, through its Division of Alcoholic Beverages and Tobacco, was the state agency responsible for issuing such permits and regulating the conduct of tobacco sales under them. Bonita Sue Adkins, born on October 23, 1973, was, at the time of the alleged offenses, a student at Rockledge High School. She had known the Respondent for about 2 years and patronized his store frequently. On those occasions she spoke with him as a friend about her life in general and he was very nice. She trusted him. Sometime prior to October 24, 1991, however, she claims, the nature of his approach began to change. He began to get more personal with her, suggesting she satisfy herself sexually. When she would speak with him about her relationship with her boyfriend, or when her stomach hurt as a result of her menstrual period, he would allegedly tell her how he could make her feel better sexually and would, periodically, talk with her about having sex with him even though she claims she never led him on or gave him any reason to believe she was interested in him that way. Ms. Adkins describes herself as an open and demonstrative individual and admits to having hugged Respondent once or twice but never to having kissed him. On October 9, 1991, as a result of a dispute with her boyfriend during the school day, Ms. Adkins was upset and felt the need to talk with someone. She left school before it was over, something she did often, and went to Respondent's store where she told him of her problems and asked him for a cigarette even though she knew she was too young to legally possess them. She claims she had gotten them from him in the past after she told him she was over 18 without showing him the identification he had asked for. Respondent denies this, however. On this particular day, Ms. Adkins claims, Respondent again said he could satisfy her sexually, purportedly indicating he would "eat her" and "make her come." She states he told her that if she would just be with him for sex for a couple of hours alone, he'd give her anything in the store she wanted. On all these occasions, when Respondent would speak to her with sexual innuendo, she did nothing about it, accepting it as "guy" talk. Only when he touched her did she get upset. On this occasion, Ms. Adkins states, she was wearing stretch jeans and a loose top over an undergarment and panties. Customers came in and out of the store while they were talking, and Respondent remained behind the counter with her on the outside. When the store emptied, however, Respondent allegedly told her to get the drink she had asked for and as she was facing the fountain, she claims, he came behind her and put his hand up under her shirt. She told him to stop and tried to get away. He was holding her tightly, however, she claims, and touched her breast under the undergarment for several minutes while she resisted and tried to get away. According to Ms. Adkins, Respondent finally let go of her breast and tried to put his hand down the front of her pants, but could not get far enough down to touch her genitalia. All during this time, she claims, she was trying to get him to stop and to let her go. She thought he was trying to have sex with her which she did not want. During the several minutes of struggle, during which he supposedly tried to kiss her and she consistently resisted his advances and asked him to let her go, she did not scream or call out because she felt there was no one there to hear her to help her. She does not know who was or might have been in the area, however. Ms. Adkins ultimately got away from the Respondent and, leaving the store, took a taxi which he had called for her to her home. Not only did Respondent call the cab, for which Ms. Adkins waited, but he also gave her the money to pay for it and a pack of cigarettes. This is patently unbelievable. It stretches credulity to expect anyone to believe that after being assaulted sexually, Ms. Adkins would wait around her attacker's store for a cab he allegedly called for her. Respondent purportedly told Ms. Adkins to say nothing about what happened between them to anyone. She did not report the matter to anyone including her parents or the police until 2 or 3 days later because, she claims, she did not know what to do. She claims she felt Respondent had violated her trust and she was afraid to tell her parents. Her best friend's mother worked for the police department but she didn't tell her, either. It was only when her boyfriend, Mr. Dotson, to whom she told the story several days later, told her to tell her mother about it did she make her complaint. Ms. Adkins' reputation for truth and veracity in the community is not good. She was arrested for burglary when she was 16 years old and for several other minor offenses which were not prosecuted. On October 15, 1991, Officer Hollenbeck was advised by his dispatcher, the mother of Ms. Adkins' close girlfriend, that Ms. Adkins had told her she had been assaulted. That same day he contacted Ms. Adkins' mother to ask if they wanted to file a complaint. The following day, Ms. Adkins and her mother came to Hollenbeck's office where Ms. Adkins made a statement accusing Respondent of assault. Several days later, on October 21, 1991, Officer Hollenbeck contacted Respondent and asked him to come to the police station where he told Respondent of the allegations Ms. Adkins had made against him. In a sworn statement made at the time, Respondent admitted Ms. Adkins had come to his store on the day alleged and that they had talked, but he unequivocally denied any assault. Respondent indicated to Officer Hollenbeck he had had trouble in the past with Mr. Dotson and his mother who spread untrue rumors that he had sold beer and cigarettes to minors. He indicated that when Ms. Adkins was in his store, two other patrons were there. When Hollenbeck checked this with those patrons, both recalled having been there and one recalled seeing a blonde female. Neither saw anything unusual going on. When Hollenbeck asked to see the tape from the security camera in the store, Respondent indicated it had automatically been erased and used over a relatively short time after real time. The system is a continuous reel type on which, if not preserved for a specific item, the tape is used over and over. Respondent admits Ms. Adkins came into his store on the day in question complaining of a stomach ache and seeking a free soft drink to which he agreed. At that time, other patrons and the beer distributor were there and she remained until all had left. When he asked her what was wrong, she stated she had had a fight with her boyfriend, had left school early, and needed to "chill out" until she could go home. At the time, Respondent was waiting for his wife to bring him his lunch and go pick up their daughter at school. Respondent and Ms. Adkins talked, but he denies she gave him any details regarding her fight with her boyfriend. He claims he told her to talk with her friend, Ginger, about that. Respondent also denied giving Ms. Adkins either money or cigarettes, and he specifically denies any sexually oriented conversations with her nor did he proposition her sexually. He admits he might have called her "pretty girl" as a part of the friendly approach he takes with all his customers. When she came into his store that day it was near the lunch hour and this is a busy time for him. According to Mr. Naik, Ms. Adkins is a liar and an individual who will make any untrue allegation about people to get even with them if she believes they have offended her. He believes she has made these instant allegations about him because he refused to sell her boyfriend, Mr. Dotson, cigarettes. She threatened to report him to the police for possession of marijuana, an allegation he claims to be untrue. Mr. Dotson, age 17 at the time of the hearing, currently lives with Ms. Adkins but denies having any serious relationship with her now. He was told by Mr. Taylor, who testified to Ms. Adkins bad character for the Respondent, that Ms. Adkins was not well liked by her peers, but he had not found this to be true. He also denies ever having told Mr. Taylor that Ms. Adkins was a liar or had a bad reputation for truth and veracity. He claims he has purchased cigarettes in Respondent's store in the past but never from Respondent personally. This is consistent with Respondent's denials. Taken together, from the testimony of Ms. Adkins and Mr. Dotson, and observation of their demeanor while on the stand, it is hard to credit either with much believability and the testimony of neither is particularly credible. Ginger Austin, formerly Ms. Adkins' best girlfriend, has patronized Respondent's store frequently for about a year. At first, she claims, he was polite and courteous to the girls, but with time, he began to speak suggestively toward Ms. Adkins. She relates that on one occasion he suggested to Ms. Adkins that she get rid of her boyfriend and get a real man, and she also recalls having heard him tell Adkins that if she would "screw" him she could have anything in the store. However, neither young woman reacted to these comments and both continued to patronize the store even after the alleged assault. She claims this was because there were no other stores around, but the evidence clearly shows there were other stores in the area, though not on the direct route between school and home as was Respondent's store. Nonetheless, neither seemed to consider Respondent a threat or to take him seriously. Ms. Austin claims she is no longer friends with Ms. Adkins and has not discussed her testimony with her. She also denies having discussed Adkins' reputation with Taylor. Here, as with Adkins and Dotson, the witness' testimony is not persuasive. Respondent pleaded guilty to a lesser misdemeanor offense than that originally charged, the exact nature of which was not disclosed, even though he continued to protest his innocence because he is an alien. Had he been convicted of the original felony charge, he claims, even though he did not commit it, he would have had to leave the country That was the sole reason for his plea, he asserts. This is not unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that the Notice to Show Cause issued by the Department in this case alleging misconduct by the Respondent regarding Ms. Adkins on or about October 24, 1991, be dismissed. RECOMMENDED this 8th day of January, 1993, in Tallahassee, Florida. 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 8th day of January, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3774 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. Rejected as not based on credible evidence. Testimony is accurate but not believed. First three sentences accepted. Balance rejected as not based on credible evidence. - 8. Rejected as not based on credible evidence. 9. - 11. Rejected as not based on credible evidence. Not a Findings of Fact but a comment on the evidence. Rejected as not based on credible evidence. Accepted as to her actions but not as proof of Respondent's misconduct. Accepted. Not a Finding of Fact but a comment on the evidence. Not an appropriate Finding of Fact relating to the evidence. FOR THE RESPONDENT: NONE SUBMITTED. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 William R. Clifton, Esquire 1273 South Florida Avenue Rockledge, Florida 32955 Janet B. Ferris Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of the violations alleged in the Notice To Show Cause issued September 22, 1989 by the Director, Division of Alcoholic Beverages and Tobacco, Department of Business Regulation.
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, the Respondents, Eugene and Joan Ferretti, d/b/a Gino's Beer and Wine (Gino's) held a Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) alcoholic beverage license for the premises known as Gino's located at 2012 South Atlantic Avenue, Daytona Beach Shores, Volusia County, Florida, license number 74-01399, series 2-APS Eugene and Joan Ferretti are co-licensees for Gino'. The Respondents stipulated that Gina Ferretti, employee and daughter of Eugene and Joan Ferretti, did on July 13, 1988 sell one 12 ounce can of Budweiser Light Beer, an alcoholic beverage, to a person under the age of 21 years and on October 21, 1988 did sell one 8 ounce can of Budweiser Beer, an alcoholic beverage, to a person under the age of 21 years, both sales being in violation of Section 562.11(1)(a), Florida Statutes. On July 18, 1988 the Division gave the licensees Official Notice of the July 13, 1988 violation and advised the licensees that if a similar violation occurred in the future the licensees could be charged with the current violation along with any future violations. On October 24, 1988 the Division advised the licensees of the October 21, 1988 violation and that this was a final warning before issuance of a Notice To Show Cause in the event of another violation which could subject the license to revocation or suspension. Since the two incidents in which she was involved occurred, Gina Ferretti has had training concerning the sale of an alcoholic beverage to persons believed to be under the age of 21 years, and has not been involved in any other violations since October 21, 1988. Because Eugene Ferretti works in construction it is necessary for Gina Ferretti to help in running Gino's and, therefore, Gina Ferretti stills works in Gino's. At all times material to this proceeding, Ms. Tina D. May worked with the law enforcement investigators of the Division in the Daytona Beach, Florida area as an underage operative to assist in determining whether licensed establishments were selling alcoholic beverages within their licensed premises to persons under the age of 21 years. Ms. May was instructed by the Division, as all underage operatives are, not to dress or act in such a fashion that is designed to entice the licensee to sell her alcoholic beverages without checking her identification to confirm her age or in any way lie about her age or use a false identification. Ms. May considered her work with the Division as a public service because her husband was killed in a alcohol related vehicular accident. On March 11, 1989 Ms. May, then 20 years and 7 months of age, entered the licensed premises of the Respondent under the supervision of Ronald P. Sullivan, Investigator for the Division. Ms. May was casually dressed, wearing a white T-shirt with logo and blue jeans; her hair was brushed straight downward, and she wore no makeup. On March 11, 1989 Ms. May's appearance resembled that of a working person rather than that of a student on spring break. After entering Gino's, Ms. May proceeded to purchase a 12 ounce can of Budweiser Light Beer, an alcoholic beverage. Eugene Ferretti was on duty at the time, and asked Ms. May if she was "21". Instead of responding that she was not "21", Ms. May handed Ferretti her Florida's driver's license with a yellow background indicating that the person identified in the license was under the age of 21 years when the license was issued. Ms. May's lack of a verbal response to Ferretti's question concerning her age was contrary to instructions given by Ronald Sullivan, to be "up front" about her age. The implication of Ms. May producing her driver's license in response to a question concerning her age, coupled with her appearance, led Ferretti to believe that she was "21", and resulted in Ferretti being less diligent than he should have been in reviewing Ms. May's driver's license. Due to Ferretti's lack of diligence he misread the 08 in May's birth date of 08/04/68 as an 03 and determined her birth date to be 03/04/68 rather than 08/04/68. Thinking she had just turned "21" on March 4, 1988, Ferretti sold Ms. May, a person under the age of 21 years, a 12 ounce can of Budweiser Light Beer, an alcoholic beverage. Ms. May had never purchased or attempted to purchase an alcoholic beverage in Gino's before the time of this offense. Ronald P. Sullivan was at the door of Gino's when Ms. May purchased the beer, but was unable to hear the conversation between Ferretti and Ms. May. Upon completing the purchase of the 12 ounce can of Budweiser Light Beer from Ferretti, Ms. May handed the beer to Sullivan who impounded it. Ferretti does not dispute the sale of the beer on March 11, 1989 to Ms. May, and allowed it to be introduced into evidence without objection. The conversations between the Division's operative and Gina Ferretti during the sales on July 13, 1988 and October 21, 1988 were taped, which is the usual procedure so as to rebut any conflicting testimony concerning a conversations between the Division's operative and the person making the sale. However, the conversation at the time of the sale between Ferretti and Ms. May on March 11, 1989 was not taped.
Recommendation In making the following recommendation I am mindful of the Division's "guidelines" of imposing an administrative fine of $1,000.00 and a 20-day suspension of the license for the first offense of violating Section 562.11(1)(a), Florida Statutes, (selling an alcoholic beverage to a person under the age of 21 years) regardless of the circumstances surrounding the violation, which appear to conclusively presume that the penalty should be the same regardless of the facts and circumstances surrounding the violation without any consideration being given to mitigating circumstances, if any. Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding the violations, it is, therefore, RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of violating Section 562.11(1)(a), Florida Statutes, and for such violations, considering the circumstances surrounding the violations, assess a civil penalty of $250.00 for each of the violations for a total civil penalty of $750.00. DONE AND ENTERED this 20th day of April, 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 20th day of April, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6166 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Findings of Fact 8, 9 and 11, except the last sentence which is rejected since the label on the can of beer does not indicate the alcohol content. However, the can of beer does have the word Florida? on its lid and bares the trademark "Anheuser-Busch" which is prima facie evidence of it being an alcoholic beverage as defined in Section 561.01(4)(a), Florida Statutes which was not rebutted. See Section 562.47(2), Florida Statutes. Adopted in Finding of Fact 10. Adopted in Finding of Fact 9, as modified. Adopted in Findings of Fact 8 and 11. Adopted in Findings of Fact 8 through 11. Adopted in Findings of Fact 3 through 6, as modified. Not necessary to the conclusion reached in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Adopted in Finding of Facts 1 and 2, respectively. 3. Adopted in Finding of Fact 7, but modified. 4.-8. Adopted in Findings of Fact 4, 5, 8, 9 and 11. 9.-10. These are restatements of testimony and not findings of fact, but see Finding of Fact 9. 11. Adopted in Finding of Fact 9. 12.-16. These are restatements of testimony and not findings of fact, but see Findings of Fact 8 and 9. 17.-18. Not material to the conclusion reached in this Recommended Order. 19. Adopted in Finding of Fact 12. COPIES FURNISHED: Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 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 32399-1007 Emily Moore, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 French Davis, Esquire 2762 South Peninsular Daytona Beach, Florida 32118
The Issue Whether or not on or about July 13, 1975, Arthur Hayes, Jr., licensed under the beverage laws, and or his agent, servant or employee did sell or permit to be sold, served or consumed alcoholic beverages, to wit: a quart bottle of Schlitz beer, any time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29 Whether or not on or about July 20, 1975, Arthur Hayes, Jr. licensed under the beverage laws and or his agent, servant or employee did sell or permit to be sold, served or consumed, alcoholic beverages, to wit: a quart bottle of Schlitz beer at a time otherwise not provided for by county or municipal ordinance, contrary to Florida Statutes 561.29.
Findings Of Fact In the presentation of its case, the petitioner called beverage agent Eugene Fogel to the stand. On or about July 13, 1975, agent Fogel was working for the Sanford, Florida, Police Department and in addition was acting in an undercover capacity for the Division of Beverage. At around 2:00 p.m. July 13, 1975, then police officer Fogel met with agent Herb Baker of the Division of Beverage in Sanford, Florida, for purposes of investigating alleged illegal alcoholic beverage sales which were being made on Sunday. The witness, Fogel, went to the address of Dinah's West Side Grocery, entered the store and purchased a quart bottle of Schlitz beer from the respondent, Arthur Hayes, Jr., This particular item of evidence became petitioner's exhibit 1 and is currently in the custody vault of the Division of Beverage District Office in Orlando, Florida. Testimony by agent Herb Baker indicated that the meeting as spoken of by agent Fogel had transpired, and he had seen agent Fogel enter the subject premises on July 13, 1975, and come out with a paper bag which contained petitioner's exhibit number 1. This exhibit was turned over to agent Baker. Officer Fogel testified that on Sunday, July 20, 1975, the same sequence of events occurred that had occurred on Sunday, July 13, 1975. He met agent Baker and then went to Dinah's West Side Grocery around 3:30 p.m. and purchased a quart bottle of Schlitz beer, which is petitioner's exhibit number 2. The petitioner's exhibit number 2 is now located in the custody of the District Office, Division of Beverage, Orlando, Florida. Again, agent Baker stated that he observed officer Fogel go into the premises on July 20, 1975, return with a bag and that the bag contained a quart bottle of Schlitz beer. The testimony was given by officer Fogel that July 13, 1975 and July 20, 1975, were Sundays. Other Petitioner's exhibits admitted into evidence were exhibit number 3 which is a notice to show cause with accompanying administrative complaint, exhibit 4 which is a notice of hearing, and exhibit 5 which is a copy of an ordinance in Seminole County, Florida. This ordinance was in effect on July 13, 1975 and July 20, 1975, and prohibited the sale of alcoholic beverages on any Sunday. The respondent took the stand in his own behalf and indicated that he knew Eugene Fogel in July of 1975, and knew that Eugene Fogel was a policemen with the Sanford Police Department. He stated that he therefore would not have sold beer to Officer Fogel on Sunday, because he knew such a sale would be illegal. The witness also stated that the only employees in his store were he and his wife and consequently the only explanation he could think of for the two quarts of beer, was that the policemen had stolen the beer from his freezer. He said this would have been easy since there was no lock on the beer freezer and it was close to the door. After assessing the testimony of the witnesses, together with the examination of the evidence it is determined that the violations as alleged in counts 1 and 2 in the administrative complaint have been proven. This determination is arrived at because it would not appear that there is any motive on the part of the two police officers to promote absolute falsehoods. On the other hand considering the interest of the respondent and the quality of his comments, he has not effectively explained or defended against the charges.
Recommendation For committing the offense as alleged in Count 1 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes Jr., have his license suspended for a period of 30 days. For committing the offense as alleged in Count 2 of the Administrative Complaint, it is recommended that the respondent, Arthur Hayes, Jr., pay a civil penalty in the amount of $150.00. DONE and ENTERED this 5th day of February, 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: William Hatch, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Arthur Hayes, Jr. 1717 West 18th Street Sanford, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF BEVERAGE IN RE: DINAH'S WEST SIDE GROCERY 1717 West 18th Street CASE NO. 75-2011 Sanford, Florida DABT CASE NO. 5-75-94-A License No. 69-139 /
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
