The Issue The issues in this case are framed by the Notice to Show Cause issued by the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (the Department), on or about January 22, 1992, in DBR Case No. TA-39-91-0555. The Notice to Show Cause alleges that the Respondent, Florida Premier Clubs, Inc., d/b/a Mako's Bay Club, through its employees, sold alcoholic beverages to minors on November 6, 1991, in violation of Sections 562.11(1)(a) and 561.29(1)(a), Fla. Stat. (1991). The Respondent denies the charges and also asserts mitigating circumstances and the Florida Responsible Vendor Act defense under Section 561.706, Fla. Stat. (1991).
Findings Of Fact The Respondent, Florida Premier Clubs, Inc., operates several establishments known as Mako's Bay Club in Pinellas County, Florida. All are licensed for consumption of alcoholic beverages on the premises. All are relatively large establishments that feature multiple bars and dancing. All cater to a relatively young clientele. All stress strict compliance with the Beverage Law, including the prohibition against sales to minors, and all employees receive training approved by the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (the Department), under the Florida Responsible Vendor Act, which includes training in how to avoid illegal sales to minors. New employees receive this training either before they begin working or within approximately a month of beginning work. In addition, the management of the establishments hold periodic meetings that include a reminder about the prohibition against sales to minors and the establishment's policies for avoiding illegal sales to minors. On or about January 23, 1991, the Respondent opened a Mako's Bay Club at 901 North Franklin Street, Tampa, Florida, under alcoholic beverage license number 39-03295, Series 4-COP. Before the establishment opened for business, all employees received training approved by the Department under the Florida Responsible Vendor Act, which included training in how to avoid illegal sales to minors. New employees have received this training either before beginning work or within approximately a month of beginning work. Generally, new employees are not permitted to serve alcoholic beverages until completing this training, except under supervision. In addition, the management holds monthly meetings with all staff that include a reminder about the prohibition against sales to minors and the establishment's policies for avoiding illegal sales to minors. 1/ The Mako's Bay Club in Tampa, at least, allows underage clientele (18 years old and up) to enter the premises on Wednesdays and Saturdays. On these nights, as on all others, clientele who appear to be relatively young are "carded" at the entrance. If they are under 21, the back of their right hand is marked in permanent ink with a large "X". If they are 21 or over, they are given a tight-fitting band to wear around their wrist. Bartenders and servers know they can only serve someone with the wrist band and without the "X" mark. If a customer has neither, and appears to be possibly under 21, the bartender or waitress is to ask to see proof of age. The bar's bouncers circulate during the evening and are alert to underage drinking, loose wrist bands, and underaged clientele in the company of authorized drinkers having more than one drink in front of them. Although the Department has investigated complaints concerning underage sales at establishments operated by the Respondent, prior to November 6, 1991, the Department never made a case of selling to minors against any establishment operated by the Respondent, and the Department has considered the Respondent to be in compliance with the Beverage Law prohibiting sales to minors. In response to complaints of underage drinking in the Mako's Bay Club in Tampa, the Department conducted an investigation that included sending undercover underage operatives (aides) into the establishment under the supervision of Department special agents. The aides are selected from among applicants who are college students 18 to 19 years old and who look their age. Often, they aspire to careers in law enforcement. They are instructed to carry correct identification, not to dress to appear older than they are, not to try to deceive the management and employees of the establishment they are investigating, and to give their correct age and identification if asked. Following these instructions, they are to enter the premises and see if they can buy a drink. They operate in pairs, and each pair is accompanied by special agent, who keeps them in sight, particularly when they are attempting to make a buy. The investigation of the Mako's Bay Club in Tampa took place on November 6, 1991. Three teams of special agents and aides entered the premises separately between approximately 9:30 and 10:00 p.m. After a short period of orienting themselves and spreading out in the establishment, the aides went to work. One, Asim Brown, a young-looking 18 year-old, ordered a Budweiser beer from a waitress the second time she approached the table where he and 19 year- old Belvin Sanchez were sitting. (Sanchez declined.) The waitress was new and, against normal procedures, was pressed into service before she was completely trained. She did not ask Brown's age or ask to see proof of age. She left, placed Brown's order at a bar, and later returned to the bar to get the beer to serve at their table. Brown paid for the drink. The transaction was observed by Special Agent Powell, who was seated nearby. Sanchez later went to the "front bar" where he ordered a wine cooler while being observed by Special Agent Powell. He put the money on the bar counter while waiting for his drink. The bartender served him and took the money. Brown went to another bar where he ordered another Budweiser beer, this time from a female bartender. She served him, and he paid for the beer. 19-year old Ricky Salgado, who was teamed with Special Agent Hamilton and aide Steve Towe, also ordered a wine cooler at the front bar. He was served and paid for his drink. Special Agent Hamilton observed this transaction. Apparently about this time, the bartender recognized Special Agent Hamilton and spread the word for the staff to be extra careful to be in compliance with the Beverage Law. The next time aide Sanchez tried to buy a wine cooler at the front bar, the bartender escorted him to a manager and had him evicted. When aide Towe tried to buy a drink, he was evicted, too. The female bartender who had sold beer to Brown later evicted both of the other aides, who were 17 year-old females, as well as two other minors, for trying to buy alcoholic beverages. The evictions ended the investigation. Later, the special agents returned to arrest those accused of selling to minors and to serve a Notice to Show Cause on the Respondent. The Respondent attacked the credibility of the Department's special agents and aides, essentially accusing them of fabricating the evidence, primarily on the basis that: (1) the Mako's Bay Club staff knew Special Agent Hamilton was on the premises and was being especially cautious; and (2) Brown could not have been served Budweiser. As to the first point, the evidence was not clear when Special Agent Hamilton was spotted and when all the staff became advised of his presences. As to the second point, the Respondent contends that the waitress from whom Brown and Powell say he purchased the Budweiser beer remembers that she did not serve any Budweiser that night. A bartender testified that she was assigned to his bar and was required by the bar's procedures to place her orders through him. He had $1 Corona specials at his bar, and he contends that it would have been rare for someone to order a Budweiser at his bar, rare enough for him and the waitress to remember it. He also claims to have checked his drink orders on the night in question and to have found no order for Budweiser beer. 2/ But the evidence is clear that the waitress had not completed her training and was working without supervision for the first time. She may not have followed all of the Mako's Bay Club's usual procedures. In addition, the evidence revealed that she was very upset at having been accused of selling to a minor because she was about to join the military and did not want a criminal record to come out of the incident. She had a motive to attempt to defend herself, perhaps by telling untruths about what happened.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Notice to Show Cause in this case. RECOMMENDED this 9th day of June, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 9th day of June, 1992.
Findings Of Fact No evidence was offered at the hearing to establish that the Licensee holds a beverage license issued by the State of Florida, Department of Business Regulation, Division of Beverage. It is alleged in the Agency's Notice to Show Cause that the Licensee holds beverage license number 52-207. No issue was raised as to whether the Licensee holds a beverage license. It will be assumed for the purpose of this order that the Licensee holds beverage license number 52-207. No admissible evidence was offered or received at the hearing to establish that the Licensee has violated any provisions of Florida Statutes s. 561.29 as is alleged in the Notice to Show Cause issued by the Agency.
The Issue Whether Respondent violated Sections 562.11(1)(a), and 561.29(1)(a) (sale of an alcoholic beverage to an underage person) and/or 561.29(1)(a) and 561.17(3) (failure to notify Petitioner licensing agency of the transfer of ten percent or more of any financial interest, change of executive officers or directors or a divestiture or resignation of such interest or position), Florida Statutes, as charged in the Administrative Complaint dated May 4, 2008, and if so, what discipline should be imposed.
Findings Of Fact At all times material, Respondent was licensed under the Florida Beverage Law, by Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is subject to Petitioner’s regulatory jurisdiction, having been issued License Number 72-00497, Series 2-APS, to sell beer and wine in sealed containers for consumption off of the licensed premises only. There is no evidence that Respondent business had ever been previously cited for violation of its license or that Petitioner was investigating the premises on the basis of a complaint or allegation at the time this case arose. Charging Paragraph One 4/ Petitioner’s Special Agent and a Lieutenant, who at all times material was working as Petitioner's Special Agent, addressed “a directed enforcement issue,” the belief that because energy drinks containing alcohol had newly come on the market, there would be sales of them to underage persons. On April 25, 2008, the agents conducted undercover operations at what their paperwork shows to be a minimum of 13 alcoholic beverage retail stores in Perry, Florida, and one store in Steinhatchee, Florida, between 4:35 p.m. and 8:22 p.m. The agents testified that their operation on that date also involved even more stores in several counties. The agents’ paperwork shows they arrived at Respondent’s store at 5:11 p.m. on April 25, 2008, and that they followed standard Agency procedures. On April 25, 2008, the Agency employed M.C. as “Investigative Aide AL0015.” M.C. had worked for the Agency as an undercover operative for almost five years and previously had worked with the aforementioned two agents. On that date, M.C., a female, was 19 years old. On April 25, 2008, the agents gave M.C. a $5.00 bill with which to make “the buy.” She took no other money into Respondent’s store with her. Petitioner’s two agents testified that at 5:11 p.m., while sitting in their car parked in front of Respondent’s store, they witnessed M.C. purchase a “Sparks” from Respondent Meah. Between them, the officers’ testimony included details such as seeing that one other person was in the store when M.C. entered the store; seeing M.C. remove a Sparks can from the cooler; seeing that no conversation took place between M.C. and Respondent Meah; and seeing that no identification was requested by Mr. Meah. M.C. did not relate that anyone else was in the store at the time of her purchase. The agents provided no information as to how they saw so much detail through their car's windshield and the window of the store. Clearly, they could not have heard any conversation at that distance and under those conditions. There also is no evidence of backlighting from inside the store by which the agents could even see Huranur Rashid Meah and M.C. in silhouette so as to observe them talking or not talking. For these reasons, the only competent evidence of what occurred between M.C. and Mr. Meah is the testimony of M.C. and Mr. Meah. M.C. testified that at approximately 5:12 p.m. on April 25, 2008, M.C. presented a can of “Sparks” alcoholic beverage and a package of Orbits gum to Respondent Meah at the cash register; that he did not require identification/proof of age from her; that he did not ask her how old she was; and that he rang up her purchase, giving her $1.92 in change, the can of “Sparks,” and the gum. Huranur Rashid Meah testified that he sold only one can of Sparks at approximately 5:27 p.m. on April 25, 2008, to his long-time customer, Stephanie Lee Wood, née Johnson. At hearing, Ms. Wood presented herself as an adult, without stating her age for the record. She testified that for a significant period of time, she was in Respondent's store every day about the same time and at that time "mostly" bought a Sparks Malt Beverage from Respondent Meah. Ms. Wood is Caucasian, and M.C. is a light-skinned Negro, but they have very similar builds or silhouettes, and could be mistaken for being of a similar age. Upon observation of M.C. at hearing, the undersigned was unable to discern her age, and without testimony would not have guessed she was merely 21 years old on the date of hearing. Her photograph in evidence, taken on April 25, 2008, does not look like an under-age person, or even very much as M.C. looked when she testified at age 21. When M.C. returned from Respondent’s store to the car containing the two agents on April 25, 2009, the agents verified that she had only $1.92 on her; that she had with her a can of “Sparks” and a package of Orbits gum; and that $1.92 was an appropriate remainder for the purchase of a “Sparks” 16 oz. can and a package of Orbits gum, plus tax. Then all three of Petitioner’s operatives filled-out their on-scene paperwork. Before leaving the scene on April 25, 2008, the agents issued to Respondent Meah an Arrest/Notice to Appear/Probable Cause Affidavit. Respondent Meah signed on the bottom of this item, acknowledging receipt thereof. After repeating similar procedures multiple times throughout the remainder of the evening, Petitioner’s agents checked the can of “Sparks” they had bagged at the scene into their headquarters' secure evidence lock-up, and prepared additional paperwork at headquarters. Sparks Malt Beverage apparently contains seven percent alcohol. From differences in the paperwork filled out at the scene, the paperwork from the evidence lock-up, and the oral testimony at hearing, one could guess that the 16-oz. can allegedly purchased by the underage operative from Respondent Meah contained “Sparks Plus Lemonade,” “Sparks Malt Beverage,” or “Sparks” as an energy drink. Ultimately, the State Attorney for Taylor County, in and for the Third Judicial Circuit, issued a “nolle prosequi,” for the associated criminal case, brought against Respondent Meah,5/ and destroyed the “Sparks” can involved. No physical evidence of the can allegedly purchased by M.C. was available to be admitted in evidence during this administrative case’s disputed-fact hearing. Respondent Meah submitted in evidence an automatically printed cash register tape from his store’s single cash register. He claimed this item showed the transaction he had with Ms. Wood on April 25, 2008. The register tape shows that only one sale for the combined amount of $1.69 (the cost of a can of Sparks Malt Beverage), and for $1.19, (the cost of a package of Orbits gum), was rung up together on that date. It further shows that after tax, $1.92 was given in change to the customer. Respondent's cash register tape also shows a sales time of 5:27 p.m. on April 25, 2008. This is the only similar transaction on that date on the whole cash register receipt. Several other transactions on the tape show beer sales at $1.69 each, but no other transactions match the exact amount(s) testified-to by Meah, Wood, and Petitioner's three operatives. Based on the evidence as a whole, there is no persuasive reason to rely on the time posted on this cash register receipt as being reliable; but likewise, there is no clear evidence that the time on the receipt is not reliable. The receipt could be read to show Sparks and Orbits were sold to M.C. or that Ms. Wood purchased the Sparks and something else at that time. It could also be interpreted in a variety of other ways, but clearly, it shows only one sale matching all witnesses' testimony occurred on that date. Charging Paragraph Two On August 8, 2006, Respondent had completed and submitted to Petitioner his application for a beverage license. Section six, on page seven of that application, shows “Abdul Latif Meah” (Respondent Hurunar Rashid Meah’s father) as a 50 percent owner of the corporate Respondent (licensed premises), and further shows Respondent “Harunur Rashid Meah” as a 50 percent owner. It also shows the father as corporate president and Respondent Meah as corporate vice-president. At no time has anyone notified Petitioner that any change in the stock or ownership interest in the licensed facilities has taken place, or that the corporate officers have changed. However, as of November 26, 2007, Respondent Harunur Rashid Meah filed with the Secretary of State, Division of Corporations, papers for “reinstatement” of the Respondent Corporation, and these papers show Harunur Rashid Meah, as the sole owner/president, treasurer/director of Respondent corporation. Respondent Meah's explanation of the foregoing is that: He “missed a payment.” He never dissolved the original corporation, but he needed to get the corporation reinstated or reactivated, which he did as of November 26, 2007, listing only himself on the papers required by the Division of Corporations. Respondent Meah also testified that he had signed all the papers for obtaining the alcoholic beverage license from Petitioner without understanding or reading them, and without appreciating the oath thereon that he signed, promising to tell the truth on those papers, and further promising to comply with the Florida Beverage Law. Among other requirements, the Florida Beverage Law requires notice to Petitioner of the transfer of ten percent or more of any financial interest, change of executive officers or directors, or divestiture or resignation of such interest or position. (See Conclusions of Law.) Petitioner Agency asserts that the contradiction between the August 8, 2006, disclosure of interested parties on Section Six of the Beverage Law license application and the interested parties listed on the November 26, 2007, Division of Corporations documents violates Section 561.17(3), Florida Statutes, because Mr. Meah did not notify the Petitioner Agency as he was required to do, and that the present situation is especially serious because Petitioner had previously warned Respondent of the violation. Special Agent Lastinger’s testimony is credible that he discovered the November 26, 2007, incorporation papers when he was preparing to draft the criminal and administrative charges after the April 25, 2008, undercover operation. However, his testimony that finding those papers after April 25, 2008, reminded him that he had warned Respondent Meah two years before April 25, 2008 (that is, sometime between April and December 2006) that Respondent could be prosecuted for ownership problems, is not credible or persuasive testimony, since the change of ownership, if any, can only be traced to November 2007.6/
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED That the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order that (1) Dismisses Charging Paragraph One, sale of alcoholic beverage to an underage person; (2) Finds Respondent guilty of Charging Paragraph Two, failure to notify Petitioner of the transfer of ten percent or more of any financial interest, or change of executive officers or directors, and fines him $500.00, therefor; and (3) Requires Respondent to notify Petitioner of the current ownership interests and names of executive officers within 30 days of the final order. DONE AND ENTERED this 14th day of September, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 14th day of September, 2009.
The Issue The issues for disposition are whether Respondent sold alcoholic beverages to an underage person in violation of section 562.11(1)(a), Florida Statutes, as alleged in the Petitioner’s Administrative Action dated February 20, 1996, and if so, what penalty or discipline is appropriate.
Findings Of Fact Respondent is the holder of alcoholic beverage license no. 69-01472, Series 2APS, for a licensed premises doing business as Superette #3, located at 199 North Country Club Road, Lake Mary, Seminole County, Florida. On February 8, 1996 and at all relevant times, Salim Dhanani was the sole corporate officer and sole shareholder of Superette #3, Inc., the holder of the above-referenced alcoholic beverage license. The “City/County Investigative Bureau” (CCIB) is a task force of officers from the Seminole County Sheriff’s Department and surrounding cities assigned to investigate crimes relating to drugs, alcohol and vice, including the sale of alcohol to minors. CCIB acts on complaints and works with the Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT). Darrell Brewer, born March 18, 1976, was a police explorer who was asked to help the CCIB investigate sales of alcohol to underage persons. On February 8, 1996, he was 19 years old and was working with Officers Johnson and Hartner. On February 8, 1996, in the evening around 8:00 p.m., Brewer and a CCIB agent entered the licensed premises, Superette #3. Brewer wore jeans and a tee-shirt and carried cash and a valid ID, which he was instructed to present if requested. Brewer picked out a 6-pack of Miller Genuine Draft beer and took it to the counter, where he purchased it without being asked for identification or any question regarding his age. Brewer turned over the beer to Officer Johnson, who returned to the store and arrested the clerk who had made the sale, Salim Dhanani. In May 1996, Dhanani went to court and pled no contest to the criminal charge of sale of alcohol to an underage person. He paid a fine. In his eleven years in the United States, this is the only violation by Dhanani. He worked in several places before taking over Superette #3 in November 1993, and he never had problems with DABT. After the Brewer incident, Dhanani hired a private consultant to train his wife and him and their one employee. They learned to “ID” everyone, including regular customers; they posted signs and notices informing customers of their “responsible vendor policy” and their intent to prosecute minors attempting to purchase alcohol. Dhanani admits that he sold beer to Brewer without asking for identification and without questioning his age. Brewer is a large, mature youth who, at the time of hearing, looked to be in his mid-20’s. To Dhanani, at the time of sale, Brewer appeared to be “28 or so”. Under the responsible vendor program any customer who appears to be under the age of 30 must be required to present proper identification. Through Capt. Ewing, DABT presented unrebutted evidence that the premises in Lake Mary has been vacated by the licensee, Superette #3, Inc., and a new license was issued to the landlord of the premises. Cancellation of the Superette #3 license is in abeyance pending this proceeding.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Division of Alcohol Beverages and Tobacco enter its final order finding that Respondent committed the violation alleged in the Administrative Action, assessing a fine of $1000.00, and suspending the license for 7 days, or until Respondent has found an approved new location. DONE and ENTERED this 17th day of April 1997 in Tallahassee, Leon County, Florida. MARY CLARK 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) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April 1997. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Steven G. Horneffer, Esquire Suite 109 101 Sunnytown Road Casselberry, Florida 32707 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: On October 24, 1985, Petitioner filed an initial application with Respondent to obtain an alcoholic beverage license. The alcoholic beverage license was to be used in the operation of a small restaurant which Petitioner owned, known as El Conquistador Restaurant, in Homestead, Florida. The Petitioner is the sole owner of El Conquistador Restaurant. The application listed the Respondent, Maria Andarcio as the sole proprietor and only person having a financial interest in the business known as El Conquistador Restaurant. During the processing of the application, Mr. Ross, the investigator assigned to Petitioner's case, noticed that the application appeared to have several discrepancies. In particular, Mr. Ross was concerned because the financial information submitted with the initial application listed Julio Andarcio, Respondent's estranged husband, as the sole depositor of the expense account but he was not listed as having any financial interest in the business. Secondly, Petitioner failed to provide sufficient information regarding her employment history. Lastly, a lease which was part of the initial application, identified a potential undisclosed interest, Jose Osario, as a co- leasee. On November 15, 1985, Mr. Ross, routinely mailed a "14 day letter" to Petitioner requesting additional information. In particular, the "14 day letter" directed the Petitioner to provide additional information within 14 days from the date of receipt of the letter. The additional information requested was as follows: List occupation for the past 5 years on personal questionaire. Julio Andarcio must be fingerprinted and submit personal questionaire." The Petitioner failed to provide the information requested in the 14 day letter. Thereafter, Respondent was unable to fully investigate the license application and denied the Petitioner's license on January 8, 1986. For some reason, the Petitioner did not receive the 14 day letter which Respondent sent by regular mail. Therefore, she did not respond within the requested time period. The Petitioner was born in Cuba and speaks very little English. The language barrier contributed to the apparent discrepancies in Petitioner's initial application. Mr. Ross opined that based on all of the information that he had received up to the time of the hearing, the Petitioner would have been granted a beverage license had she only responded to the "14 day letter."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered allowing the Petitioner 20 days from the date thereof in which to provide Respondent with the information requested in the initial "14 day letter," thereby making her application complete. The Respondent shall thereafter review and process the application in the standard and routine manner. DONE and ORDERED this 24th day of October, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 24th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1176 Rulings on Proposed Findings of Fact Submitted by the Petitioner (None Submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. Partially adopted in Finding of Fact. Matters not contained therein are rejected as unnecessary. Adopted in Finding of Fact 5. Rejected as a recitation of testimony and/or argument. Partially adopted in Finding of Fact. Matters no contained therein are rejected as subordinate. COPIES FURNISHED: Armando Gutierrez, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1077 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927
Findings Of Fact Petitioner is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is 201 West, Inc., d/b/a Central City, who is the holder of alcoholic beverage license number 11-00259, Series 4-COP, a "quota license." Respondent's licensed premises is located at 201 West University Avenue, Gainesville, Alachua County, Florida. Craig Cinque is Respondent's sole director and corporate officer. Joseph Cinque, Craig Cinque's father, was formerly Respondent's sole director and corporate officer. Prior to becoming the owner of Central City, Craig Cinque managed the licensed premises on behalf of his father. During this period of time, the Division filed ten separate Notices to Show Cause against Respondent, alleging multiple sales to and consumption of alcoholic beverages by underaged persons. On August 29, 1989, the licensed premises was closed by an Emergency Order of Suspension. The administrative charges arising therefrom were resolved by a Stipulation and Consent Agreement, wherein the Respondent in that case admitted substantially to all of the violations. Craig Cinque individually executed the agreement, admitted responsibility for previous violations, and acknowledged that future violations of a similar nature could result in suspension or revocation of the alcoholic beverage license. The agency has issued numerous Notices to Show Cause against Respondent since the entry of the consent order. However, unproven Notices to Show Cause and unproven counts within any Notices to Show Cause are only unproven accusations, and as such are not probative herein even for purposes of showing "aggravation." Beverage Law Institute is an "approved trainer" under the Responsible Vendors Act, having been approved by the Petitioner as such. Petitioner certified Respondent Central City as a certified Responsible Vendor under the Act, on April 13, 1990. See, Subsections 561.701-561.706 F.S. Of the 483 nondistributor alcoholic beverage licensees in Alachua County, only 94 have been certified by Petitioner as Responsible Vendors. Of those 94, only 13 hold "4-COP" licenses, the category of license held by Respondent, which permits liquor, beer, or wine for consumption on premises or in a sealed container. Prior to the events of the instant Notices to Show Cause, and continuing through the 14-month period of the Notices to Show Cause and beyond, Respondent was engaged in a voluntary program designed to teach employees not to serve alcoholic beverages to underaged persons. Many of the materials therefor were provided by Beverage Law Institute. The training program and procedures involved multiple ID checkers at the front door. Also at the front door, wristbands to signify and quickly identify patrons of legal drinking age were issued. Once snapped on a customer's wrist, the band itself was stamped at a right angle across the customer's wrist to prevent or at least inhibit the wristband's transfer to an underage patron and to prevent a patron bringing in a counterfeit or "ringer" wristband. All patrons, regardless of age, received a stamp directly on the wrist to identify that they had paid their admission fee. Security personnel circulated inside the licensed premises checking drinks and wristbands, and waitresses were also instructed to check on drinks already purchased by customers. The training programs and procedures also involved Respondent's policy manual regarding IDs, extensive training and testing of employees, frequent oral reminders to employees concerning the law and concerning licensee policy, sporadic staff meetings regarding policy, videotaped instruction programs, provision of and instructions to employees to use an "ID Checking Guide" at the front door and at every internal bar within the licensed premises, confiscation of fake or questionable IDs at the door, 1/ and use of warning handbills given out to customers. Upon receipt, the handbills proclaiming the licensee's "of age only" policy were usually immediately discarded by customers. Some employees looked upon their training with more enthusiasm than others. Some employees considered the policy and training all for show. Most employees complied regularly with the requirements for training, review, and instructions. A few were lax in their compliance and had to be urged to attend staff meetings or to retest. In addition to all this, from the time the Responsible Vendor tests were available, all employees except two cashiers were tested according to the requirements of the Responsible Vendor Act and within the time frames provided therein. Every underage operative who testified admitted she or he had been "carded" at the door and that none had been issued wristbands. The parties stipulated that all of the individuals named in the four Notices to Show Cause (except for those alleged to have sold or given alcoholic beverages) were under the legal drinking age on the dates indicated by the respective Notices to Show Cause and that although each of these individuals "was actually in possession of alcoholic beverages as plead (sic), there was no evidence that any of the alcoholic beverages were obtained from Respondent's employees, agents, or servants." The stipulation listed the underage persons of the Notices to Show Cause but did not employ the term "consumption" which was specifically used only in the second Notice to Show Cause (GA11890496). Petitioner put on no witnesses as to "consumption." Likewise, Petitioner did not have admitted in evidence any confiscated alcoholic beverages alleged to have been sold by Respondent's agents/employees, nor did Petitioner present any laboratory reports to establish that any substance sold was alcohol. The only evidence of alcohol content is discussed infra. With regard to Craig Cinque's attitude and Central City's compliance with the Responsible Vendors Act, the testimony of Eileen Tenly and of William Cooter has been weighed and considered. Ms. Tenly is a totally noncredible witness whose testimony demonstrates an "axe to grind," and whose candor and demeanor is unpersuasive of anything except her animosity for Mr. Cinque. Petitioner's Investigator William Cooter, however, testified credibly that after having numerous conversations with Mr. Cinque on the subject of underage sales, Mr. Cinque stated that he was not worried about losing his alcoholic beverage license because he could get another one in his mother's name. On the other hand, Mr. Cooter, by his own testimony, has been invited by Mr. Cinque to instruct and has, in fact, instructed Mr. Cinque's employees on how to prevent underage drinking. The evidence as a whole, but most particularly that of Prince Miles, Respondent's janitor, who is a credible witness, is persuasive that patrons sometimes smuggle alcoholic beverages onto the licensed premises and that each time the establishment closes, commercial alcoholic beverage containers which are not part of the inventory sold by Respondent must be swept out. Since this smuggling activity must substantially reduce Respondent's profits, it is a logical inference that such smuggling is contrary to Respondent's policy and that Respondent does not encourage or condone it, whether done by adults or minors. I. Notice to Show Cause GA11890374; September 16, 1989 through February 9, 1990; sale to Toombs, Kittles, Goldtrap, and Ormsbee by Green, Halladay, Howell, and Grimes and possession by Peters, Conf, Kelly, Garcia, Fernandez, Shiskin, Brejhanan, Benz, Yawn, and Plettner All of the violations charged in Notice to Show Cause GA11890374 arose prior to Respondent's becoming a certified Responsible Vendor on April 13, 1990. On September 16, 1989, Ryan Conf and Alejandra Peters were each under the age of 21 and in actual possession of alcoholic beverages inside the licensed premises as pled. On September 19, 1989, Central City bartender David Green sold the Division's underaged operative, Bridgette Toombs, a liquid beverage in a long- neck, factory-produced 12-ounce bottle labelled "Michelob Dry." At that time, the licensed premises was not busy and Mr. Green noted that Ms. Toombs had no wristband. He therefore checked Ms. Toombs' underage ID and instructed her that since she was old enough to drink, she should go get a wristband. This transaction was observed by Petitioner's agent, Ms. Pendarakis, but Ms. Pendarakis did not overhear the conversation. After delivering a sample of the liquid beverage to Ms. Pendarakis in the ladies' room, Ms. Toombs crossed in front of Mr. Green's bar on her way to exit the licensed premises. Mr. Green sent word to Ms. Toombs by another Central City employee that he wanted to see her. Ms. Toombs complied with Mr. Green's request and showed him her underage ID once more. At that point, Mr. Green recognized his error in thinking that Ms. Toombs was 21 or over and called over several other Central City employees, all of whom viewed the ID showing Ms. Toombs was actually two months short of 19 years old. Mr. Green was not arrested until after the ID was passed around, so it may be inferred that his recognizing his mistake was not the result of any confrontation with Petitioner's agents or law enforcement officers or due to his perception that he had been "caught." Indeed, Petitioner's witness, Ms. Toombs, attributed Mr. Green's illegal sale to her as a mistake in subtraction. Mr. Green had previously successfully passed all tests required under the licensee's policy in existence before the Responsible Vendor tests were available. On October 20, 1989, Charlotte Kelly and Alezandro Garcia, who were under the age of 21, were each in the actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1989, Cesar Fernandez, who was under the age of 21, was in possession of an alcoholic beverage inside the licensed premises. On the same date, underage operative Megan Kittles was inside the licensed premises. She was not wearing a wristband, and her hand was stamped indicating that she was under 21. She first approached a white male bartender who checked her and refused to serve her. She then ordered a rum and coke from Respondent's bartender, Craig Halladay. Mr. Halladay did not check Ms. Kittles' ID and served her a liquid beverage which Mr. Szabo of the Division testified that he had identified by smell as containing alcohol. No one saw the drink mixed, and Mr. Szabo admitted that he did not know what kind of alcohol the drink contained. He stated that he "would not swear it was rum." Mr. Szabo also was not aware until formal hearing that Respondent sold any nonalcoholic mixed drinks. Although the evidence is weak, it is persuasive that Ms. Kittles was served alcohol. Mr. Halladay successfully passed the licensee's policy test before this incident and the Responsible Vendor test afterwards. Also on October 21, 1989, Matthew Goldtrap, another underage operative, ordered a "Budweiser" and obtained a 12-ounce bottle labelled "beer" from a floor waitress named Shannon Howell. Mr. Goldtrap had no wristband but did have a stamp on his wrist. He gave the container to Investigator Smith. Mr. Szabo then took both of Respondent's employees into custody. Mr. Goldtrap does not drink alcohol. Investigator Smith did not testify, but it is inferred from the description of the beer bottle and the circumstances of the transaction as a whole that Mr. Goldtrap was served an alcoholic beverage. Ms. Howell successfully passed the licensee's test prior to this incident. On January 19, 1990, Scott Shiskin, Michael Brejhanan, and Carolyn Benz, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. On February 9, 1990, Central City bartender Steve Grimes sold Petitioner's 19-year old operative Octavia Ormsbee a liquid beverage. Ms. Ormsbee, who had no wristband on, was first denied a sale of alcoholic beverage at the downstairs back bar after Respondent's bartender there checked her underage ID. Ms. Ormsbee then went to an upstairs bar and ordered a "Bud Light." She was told by Mr. Grimes, a bartender at that bar, that they were out of "Bud Light," and by agreement, a beer bottle labelled "Budweiser" was substituted. Ms. Ormsbee does not drink alcohol and did not testify that what she received from Mr. Grimes was alcohol. The bottle purchased by Ms. Ormsbee was turned over to Officer Byrd of the Gainesville Police Department. Officer Byrd, who is familiar with alcoholic beverages through his own education, training, practice, and experience, identified the contents of the bottle purchased by Ms. Ormsbee as being "beer." Officer Byrd turned the bottle over to Petitioner's agent Cooter. Also on this occasion, Preston Yawn and Eric Plettner, who were under the age of 21, were each actually in possession of alcoholic beverages inside the licensed premises. Mr. Grimes had successfully passed the licensee's policy test prior to this incident. All of the underaged operatives who testified concerning this Notice to Show Cause testified that Petitioner's adult operatives forbade them to drink (consume) what they were sold and that they did not consume any. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the minors actually named in the Notice to Show Cause constituted their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, mere possession does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 2/ Therefore, Petitioner has only established that on September 19, 1989 Respondent's bartender sold an alcoholic beverage to Petitioner's underage operative Bridgette Toombs; that on October 21, 1989, Respondent's bartender sold an alcoholic beverage to the Petitioner's underage operative Megan Kittles; that also on October 21, 1989, Respondent's floor waitress sold Petitioner's underage operative Matthew Goldtrap an alcoholic beverage; and that on February 9, 1990, Respondent's bartender sold the Division's underage operative Octavia Ormsbee an alcoholic beverage. One of these sales was clearly a mistake and two other operatives had to go to two bartenders each before an illegal sale was made. II. Notice to Show Cause GA11890496; June 8, 1990 through June 16, 1990; sale to Wearner by Edge and to Seligman by Lemberger and Bergine and possession by Tetstone, Lockey, Klug, Skipper, and Bissell On June 8, 1990, Jennifer Tetstone and Amy Lockey, who were under the age of 21, were in actual possession of alcoholic beverages inside the licensed premises. On June 16, 1990, Ann Klug, Shana Skipper, and Michael Bissell were in actual possession of alcoholic beverages inside the licensed premises. Also on June 16, 1990, Central City bartenders Michael Edge, Michael Bergine, and Robert Lemberger, respectively, sold each of the Division's underage operatives Kathy Wearner (who did not testify but who was stipulated to be underage) and Charles Seligman an alcoholic beverage. Neither underaged operative wore a wristband or was requested to produce an ID for purposes of the respective sales. As of date of formal hearing, the Respondent continued to employ these same bartenders. All of these bartenders had successfully completed the Responsible Vendor test before these incidents. Mr. Edge also had passed the licensee's earlier policy test. The underaged operative, Kathy Wearner, asked Michael Edge for "a Budweiser" and was sold liquid in a "Budweiser" beer bottle inverted in a drinking glass. Officer Rockey of the Gainesville Police Department convincingly described the liquid that came out of the bottle as beer, an alcoholic beverage. He turned the materials confiscated over to an unnamed agent of Respondent and has not seen them since. On the same date, Central City bartender Robert Lemberger sold a 12-ounce bottle labelled "Budweiser" to 18- year-old operative Charles Seligman. Mr. Seligman was at all times without a wristband and bearing a stamp on his hand. Mr. Seligman delivered the bottle he received from Mr. Lemberger to Officer Posey of the Gainesville Police Department who had watched the entire transaction. Mr. Seligman later purchased a 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to Officer Posey. Mr. Seligman purchased a third 12-ounce bottle of "Budweiser" from Mr. Bergine and delivered that bottle to one of Petitioner's agents, Ernest Wilson. Mr. Seligman does not drink alcohol. Agent Wilson does drink alcohol and testified that the bottle Charles Seligman handed him was, in fact, beer. Although Agent Wilson also testified that Mr. Seligman's first name was "Tom" and that Mr. Seligman had purchased a rum drink, nonetheless, Mr. Wilson was convincing that the bottle handed him by Mr. Seligman did, in fact, contain beer, an alcoholic beverage. Officer Posey convincingly described the first bottle he received from Mr. Seligman as containing beer, an alcoholic beverage, and upon all the circumstances, the undersigned infers that the second bottle given Officer Posey also contained beer. All the underaged operatives who testified on this Notice to Show Cause testified that they were forbidden to drink (consume) what they were sold and did not do so. Also, absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by the other minors actually named in the Notice to Show Cause constitutes their intent to consume, but contrary to Petitioner's assertion, the inferred intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 3/ Therefore, Petitioner has established only that on June 16, 1990 Respondent's personnel sold one alcoholic beverage to the Petitioner's underage operative Wearner and three alcoholic beverages to the Petitioner's underage operative Seligman. III. Notice to Show Cause GA11900209; September 22, 1990 through September 29, 1990; service to, or consumption by Stanton, Coody, Willis, and, Torres On September 22, 1990, Amy Stanton and Janet Coody, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. On September 29, 1990, Betty Willis and Jose Torres, who were under the age of 21, were in actual possession of an alcoholic beverage in the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 4/ IV. Notice to Show Cause GA11900254 October 19, 1990 through November 16, 1990; 9 counts possession by Harriett, Ortega, McKinney, Nelson, Smith, Winter, Joyner, Cooke, Sammon; "giving" by Blackwell and Strawser On October 19, 1990, Steven Harriett, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 21, 1990, Jamie Ortega, who was under the age of 21, was in actual possession of an alcoholic beverage inside the licensed premises. On October 20, 1990, Brian McKinney, who was under 21, was in actual possession of an alcoholic beverage inside the licensed premises. On November 15, 1990, Karen Nelson, Hollie Smith, Michael Winter, and Julia Joyner, all underage, were in actual possession of an alcoholic beverage inside the licensed premises. On November 16, 1990, Denise Cooke and Teresa Sammon, who were under the age of 21, were in actual possession of an alcoholic beverage inside the licensed premises. Absent evidence to the contrary, one may assume that possession of alcoholic beverages in a bar by minors constitutes the minors' intent to consume, but contrary to Petitioner's assertion, that intent to consume does not constitute actual "consumption" by the named minors. In light of Finding of Fact 14 supra, it does not necessarily constitute Respondent's "allowing or permitting to consume." Therefore, consumption by the minors named in this Notice to Show Cause has not been proven. 5/ No evidence was introduced to establish the allegations of Counts 4 and 6 of Notice to Show Cause GA11900254, alleging "giving."
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic and Beverages and Tobacco enter a Final Order dismissing Notices to Show Cause GA11900209 and GA11900254; finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890374, imposing a total of $1750 in civil fines therefor; and finding Respondent guilty as specified above for four violations under Notice to Show Cause GA11890496, imposing a total of $2000 in civil fines therefor. RECOMMENDED this 28th day of June, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 28th day of June, 1991.
The Issue The issue presented in whether an agent or employee of Respondent sold alcoholic beverages to a person under the age of 21, in violation of Section 562.11(1)(a), Florida Statutes, as alleged in the Administration Action issued September 10, 1997, and if so, what penalty is appropriate.
Findings Of Fact At all times relevant and material to this proceeding, Respondent held alcoholic beverage license no. 74-01498, series 2APS, for an establishment known as My Super Store ("the licensed premises"), located at 701 South Martin Luther King Boulevard, Daytona Beach, Volusia County, Florida. Daytona Beach Police Department opened an investigation of the licensed premises after it received numerous complaints of illegal activity at the licensed premises. Paris Anthony is a black female born on June 13, 1977, and was 19 years old on May 5 through May 21, 1997. On May 5, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The bottle bore the manufacturer's trade mark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the cashier. The cashier accepted payment for the beer, but did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her. When Ms. Anthony asked for a receipt for the beer, the cashier, in a raised voice, commented to Ms. Anthony, "Well, you're not old enough, are you?" or words to that effect. Ms. Anthony answered that she was not, but was nonetheless permitted to leave the premises with the bottle of beer. During the conversation between the cashier and Ms. Anthony, Respondent was seated an arm's length away from the cashier. Respondent was not talking to anyone at the time. Although Respondent looked up at Ms. Anthony and the cashier during the exchange reported in paragraph 5, above, he took no action in response to the assertion that Ms. Anthony was not of legal age to purchase alcoholic beverages. On May 7, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The beer bore the manufacturer's trademark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the same cashier who was working behind the counter on May 5, 1997. The cashier did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her. Ms. Anthony departed the licensed premises with the bottle of beer. The Respondent was observed on the premises by Ms. Anthony at the time of the purchase. On May 21, 1997, Ms. Anthony entered the licensed premises and selected a bottle marked "beer" from the store's cooler. The beer bore the manufacturer's trademark for "Bud Ice." Ms. Anthony brought the beer to the sales counter and tendered payment to the same cashier who was working behind the counter on May 5 and May 7, 1997. The cashier did not ask Ms. Anthony for any identification before accepting payment and selling the beer to her. Ms. Anthony departed the licensed premises with the bottle beer. The Respondent was observed on the premises by Ms. Anthony at the time of the purchase. At hearing, nine months after the incident, Ms. Anthony appeared to be a young woman of an age that a prudent person would check to determine whether she was 21 years old. Respondent testified he had no employees at the time of the violations, but allowed "volunteers" to help him on the licensed premises, including Benette Lisa Brown. According to the Respondent, he was always on site, and in charge. The "volunteers," according to Respondent, did not work the cash register; however, Respondent's testimony was not consistent with Ms. Anthony's and that of a former "volunteer." Respondent's testimony was not credible. The person at the sales counter was working under the supervision of Respondent who was present on the premises each occasion Ms. Anthony purchased beer. At the time of the violations, Respondent did not have signs posted on the licensed premises informing customers that the vendor had a policy against serving alcoholic beverages to underage persons and informing customers that the purchase of alcoholic beverages by an underage person or the illegal use of or trafficking in controlled substances will result in ejection from the licensed premises and prosecution. The training of employees or agents was inadequate and their supervision poor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent's alcoholic beverage licensee No. 74-01498, series 2APS, be suspended for a period of 30 days, and it is further recommended that Respondent be ordered to pay a $1,000 civil penalty to the Petitioner. DONE AND ENTERED this 25th day of March, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1998. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joan Lowe, Esquire 520 North Ridgewood Avenue Daytona Beach, Florida 32114-2188 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
