The Issue Whether Respondent failed to use due diligence to prevent the sale of alcoholic beverages to persons under the age of 21 years on September 20, 1989, October 18, 1989 and February 2, 1990, which warrants discipline of its beverage license.
Findings Of Fact At all times material hereto, Respondent Pic-N-Save Central Florida, Inc., doing business as Pic-N-Save Drugs #44, held alcoholic beverage license number 69-00622, Series 2-APS, for the premises located at 940 S.R. 434, Longwood, Seminole County, Florida. Notice of training programs, sponsored by the Division of Alcoholic Beverages and Tobacco, to assist licensees in the training of their employees to maintain compliance with the laws regarding sales of alcoholic beverages to underaged persons is provided to all licensees as a part of their renewal notices. Respondent renewed its license on September 1, 1989, after having received such a notice. On August 10, 1989, Officer Cruce received a complaint about Respondent's licensed establishment from the Altamonte Springs Police Department. The nature of the alleged unlawful activity was the sale of alcoholic beverages to underaged persons. On September 20, 1989, Ms. Nicole Asbury, born March 3, 1971, an 18 year old underaged operative with the Division of Alcoholic Beverages and Tobacco, entered Respondent's licensed premises under the supervision of Officers Elizabeth Doyle and Mark Douglas, Law Enforcement Investigators with the Division of Alcoholic Beverages and Tobacco. Asbury was casually dressed, and did not appear to be a person over 21 years of age. Asbury purchased a sealed six pack of Busch Beer, 12 oz. cans, from one of Respondent's cashier employees on the licensed premises. Respondent's employee, Ms. Patricia Ann Crabtree, neither requested identification from nor asked the age of Asbury. Asbury, while still at the licensed premises, turned the sealed six pack of Busch Beer over to Officers Doyle and Douglas, after the transaction was completed. After having it initialed for identification by Asbury, Doyle and Douglas, Officer Doyle secured the beer in a wooden box in the trunk of her car until the morning of September 21, 1989, when Officer Doyle and Sgt. Blanton placed it in the Division of Alcoholic Beverages and Tobacco evidence vault until its release for the hearing in this case. It was in substantially the same condition as on September 20, 1989. Asbury had never purchased or attempted to purchase an alcoholic beverage in Respondent's establishment prior to September 20, 1989. Following the incident on September 20, 1989, Officer Doyle provided Respondent, via its manager Ms. Roseann Gasparro, with Notice of "Warning and Instructions for Compliance regarding violation(s)" on the licensed premises. The notice advised the Respondent that Crabtree had been apprehended and encouraged Respondent to "immediately contact the District Director, Cpt. Jack Wallace, to discuss the problem". This notice is called a "Step 1 Notice." On October 17, 1989, Respondent conducted a general meeting for all employees of the store to discuss security procedures throughout. The law against the sale of alcoholic beverages to minors was discussed and procedures for checking ID's were covered by Respondent's chief of security. Minerva Trill-Otevo was present and was trained at said meeting. On October 18, 1989, Asbury, age 18, again entered the licensed premises. She was under supervision of Division of Alcoholic Beverages and Tobacco Officers Doyle and Smith and casually dressed, as instructed by the Officers, appearing to be a person under 21 years of age. Asbury went to the back of the store and picked up a sealed six pack of Bud Light Beer. As she approached the front, she asked Ms. Minerva Trillo- Otero, an employee of Respondent if her register was open. Trillo said yes and proceeded to her register and sold the alcoholic beverages to Asbury. Trillo did not at any time during the October 18, 1989, transaction, either request identification from or ask the age of Asbury. After the transaction was completed, Asbury turned the beer over to Officer Doyle. Subsequent to having it marked and tagged for evidence by Asbury and the Officers, Officer Doyle and Sgt. Blandton placed it in the evidence vault, where it remained until its release for the hearing. It was in substantially the same condition as on October 18, 1989. Petitioner issued a "Final Warning" letter on October 23, 1989, urging Respondent to personally address the problem, as a subsequent violation would invoke issuance of a Notice to Show Cause. Respondent was, again, encouraged to immediately make an appointment with the Division's representatives. On February 2, 1990, Officers Doyle and Smith, Law Enforcement Investigators with the Division of Alcoholic Beverages and Tobacco, were being assisted by Melissa Schuckman, an 18 year old (born July 26, 1971), underaged operative. Schuckman and the Officers went to Respondent's licensed premises, where Schuckman purchased a sealed six pack of Coors Light Beer from Ms. Milda Grabnickas, a cashier in Respondent's employ. Ms. Grabnickas did not, at any time during the transaction, ask for identification from or request the age of Ms. Schuckman. Schuckman is, and appeared at the time to be, a person under 21 years of age. After purchasing the beer, as she was exiting the premises, Schuckman turned the beer over to Officer Doyle. Officer Doyle and Ms. Schuckman marked the beer and tagged it for identification, after which, Officer Doyle secured the beer as she had on the two previous occasions, and kept it in the evidence vault of the Division of Alcoholic Beverages and Tobacco until its release for the hearing. It was in substantially the same condition as on February 2, 1990. As a result of the activity which occurred on February 2, 1990, Officer Doyle gave notice to Respondent via its representative, Ms. Gasparro, of the Petitioner's intent "to file administrative charges against your beverage license for violation of Florida Statute Section 562.11 . . . ." Subsequently, the February 13, 1990 Notice to Show Cause at issue in this case was rendered. Pursuant to policy of the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, administrative charges, i.e., Notices to Show Cause, are not issued until there are three instances of alleged unlawful sales of alcoholic beverages to underaged persons. Respondent hosted a training program for all employees, conducted by Officer Cruce of the Division of Alcoholic Beverages and Tobacco, on February 26, 1990, at the request of Ms. Gasparro, the store manager. Although the request for the training program was made in late January, the third instance of unlawful activity had already occurred prior to the training program. Despite a relatively high turnover of personnel, Respondent conducts, on the average, two security meetings per year. Compliance with the Florida Beverage license law is but one of several issues addressed at these meetings. It is the Respondent's written policy to discharge an employee for violation of law or company policy. Respondent has signs posted for cashiers and customers regarding the sale of alcoholic beverages to underaged customers at each register which read as follows: "If you were born after today's date 1969 you cannot purchase wine or beer."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be held responsible for failure to use due diligence to prevent the sale of alcoholic beverages to persons under 21 years of age on three occasions in 1989 and 1990; and it is FURTHER RECOMMENDED that Respondent pay a civil penalty in the amount of $1000 and serve a 20-day suspension of its alcoholic beverage license number 69-00622, Series 2-APS. DONE AND ENTERED this 24th day of October, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 24th day of October, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,7,8,9,10,12,13,14,16,17. Rejected as argument or irrelevant: Paragraphs 11,15. Respondent's Proposed Findings of Fact: Accepted in substance: Paragraphs A (in part), C,D,E,F,M,N,O,S. Rejected as not supported by the greater weight of the evidence: Paragraphs B,G,H,K,P.R. Rejected as irrelevant: Paragraphs I,J,L,Q. COPIES FURNISHED: Emily Moore, Esquire Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1007 Joseph Sole Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1007 Simon W. Selber, Esquire Suite 500 Edward Ball Building Jacksonville, FL 32202-4388 Leonard Ivey Director Division of Alcholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Bulk, Inc. held a 4-COP SRX alcoholic beverage license number 39-3188, issued by the petitioner, for the premises known as Spanky's located at 2556 East Fowler Avenue, Tampa, Florida. At some time prior to 9:00 PM on July 14, 1988, Laura Steuer, born, July 29, 1969, "in the company of her friend Lynn Arnold, born August 21, 1968, entered the licensed premises without being asked by any employee of the Respondent for proof of age. The two girls had gone in for dinner and after eating, "hung out" there until nickel beer started at 10:00 PM. The girls had come in early to eat and to relax at the end of exams because they knew they would be served, having been served there before. On this evening, after dinner, they were asked by the waitress if they wanted anything and when they asked for beer, were served a pitcher, which they consumed. Ms. Steuer has drunk enough beer to know that the substance she was served that night was beer. They were starting on their second pitcher at $4.00 per pitcher, when they were arrested. At that point in time, she had nothing in front of her because, when she heard the police were there, she dumped it on the floor. Neither girl was asked for identification or proof of age at any time that evening by any employee of the facility. Ms. Steuer had her legitimate driver's license and her University ID card in her possession at the time, and Ms. Arnold had her legitimate student ID and driver's license with her. Ms. Steuer knew she was not old enough to legally drink but did it anyway. Ms. Arnold confirms Ms. Steuer's story, adding that it was her idea to come there because she had been there before and knew she would not be "carded." She indicates it was she who got the first pitcher of beer from the bartender. She was not asked for identification either at that time or when they bought the second pitcher from the waitress who came to the table. In her opinion, at the time of the arrest, there were less than 100 patrons in the establishment. Stephanie Sanchez also was at Spanky's that night, arriving sometime between 7:00 and 8:00 PM. When she arrived, there was a line at the door waiting to be checked by the bouncer but neither she nor the friends she was with, all of whom were under 21, were asked for proof of age. When they got inside, they joined some other people whom she knew to be over 21 and ate with them. Ms. Sanchez had nothing to drink, but when she was later approached by the police during the sweep, she had just been given a cup of beer purchased for her by someone else from a bar in the back. By this time, it was after 10:00 PM. Jennifer Reagan arrived at Spanky's at about 9:50 PM on the night in question to meet some friends. She had never been there before and knew nothing about it but was going at the suggestion of her friends. When she arrived with her male friend, there was a line of people outside waiting to be checked by the bouncer. Ms. Reagan is not yet 21, so her friend got someone else's ID for her with which she was able to gain entrance even though it was looked at by the bouncer at the door. The picture on the card, in her opinion, looked somewhat like her showing the same hair color and eye color and the age displayed was not 28 or 29 but 21, much closer to her own age. When inside, Ms. Reagan, who does not like beer or liquor, on advice of someone else ordered a "Long Island Iced Tea" at the bar where the bartender did not check her identification. Since she had tasted alcohol before, she could tell that the drink she got definitely had that substance in it. Because the Department had received complaints of sales of alcoholic beverages to underage patrons, Ms. Warner and several other Department investigators, in conjunction with Sheriff's Deputies from Hillsborough County, were undercover in Spanky's on the night of July 14, 1988. She went in about 9:30 PM and described the place as a large facility with loud music, a large bar with people drinking out front and a smaller bar in the back. When she went in, there were two men checking identification at the door who seemed to be doing a thorough job. However, for one fifteen minute period, when one of them left the door, it did not seem to her that anyone was checking. At 10:15 PM, when by prearrangement, the uniformed police arrived, she and her partner went to two booths where they felt underage patrons were drinking and asked for ID. The group, which included Steuer, Arnold, and Reagan, was all underage. When she checked the patrons' identifications, she found only one false ID card. There were less than 100 people in the facility at the time of the raid. While she was in the bar, before the raid, she was approached by Greg Hawkins, an officer of Bulk, Inc., who said he knew her to be a policewoman and was sure they wouldn't find anyone underage on the premises because they were checking. He was wrong. Mr. Bean, Vice President of Bulk, Inc., and manager of Spanky's was on duty there the night in question. He indicated the place has a standing policy which stated that no one under 21 could consume alcoholic beverages on the premises. In fact, he has a written slogan posted in the bar which reads, "When in doubt, keep them out." Mr. Bean states he has tried on at least 7 occasions to set up classes with the Department agents for his employees to train them in what is required to operate properly. He got a book of sample driver's licenses and gave copies to all the doormen and waitresses so that they could effectively check proof of age. There was a special light placed at the entrance to show up altered identification cards. On Thursday nights, an active time, there are 5 people assigned to the door to check ID's and barkeeps and waitresses are also instructed to check. On the night of July 14, 1988, there were 4 people on the door checking who recognized and checked the beverage agents. In Bean's opinion, people who appear to be under age should be checked before 9:00 PM by a waitress or bartender if they ask for an alcoholic beverage. In addition to all the above, management has devised a procedure to avoid the problem of underage people coming in before 9:00 and staying until after 9:00. At 9:00 PM the glassware changes from glass to plastic and in order to be served alcohol, one must have the plastic cup. To get the plastic cup, one must prove he is over 21. Unfortunately, this scheme has not always worked, but he believed that on July 14, 1988, everyone who was drinking in Spanky's was legal. In his opinion, his employees did everything they could to keep underage people out, and he, as manager has done everything he could do to train and convince his people of the need to enforce the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner enter a Final Order in this case finding Respondent guilty of Counts (3), (4), and (9) of the Notice to Show Cause herein and not guilty of the others, that Respondent's alcoholic beverage license be suspended for 90 days, and that it be assessed a civil penalty of $3,000.00. RECOMMENDED this 22nd day of February, 1989 at 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 23rd day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-5244 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 Petitioner herein. By the Petitioner: 1. Accepted and Incorporated herein 2.-5. Accepted and Incorporated herein 6.-10. Accepted and Incorporated herein Irrelevant Accepted and incorporated herein Not proven except for the last sentence which is accepted. COPIES FURNISHED: Harry Hooper, Esquire Van B. Poole, Secretary Deputy General Counsel Department of Business Department of Business Regulation Regulation 725 South Bronough Street 725 S. Bronough St. Tallahassee, Florida 32399-1007 Tallahassee, Florida 32399-1000 Wayne S. Timmerman, Esquire 308 South Fielding Avenue Tampa, Florida 33606 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 725 S. Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Respondent holds alcoholic beverage license number 30-230, series 1- COP, which authorizes the sale of beer for consumption on premises. The licensed facility, known as Shorty's Country Club, is located in rural Gadsden County. Based on an undercover investigation, a warrant was obtained on June 4, 1981, to search Respondent's licensed premises and curtilage (Petitioner's Ex. 1). The search warrant was executed on June 12, 1981, by Beverage Officer Frederick Miller and Sheriff's Deputies B. Shelfer and T. Haire. Officer Miller served the warrant on Respondent, and read and explained it to him. The premises search disclosed material later confirmed by the Florida Department of Law Enforcement (FDLE) laboratory to be 8.7 grams of cannabis (Item 1, Petitioner's Ex. 2). At the time of the cannabis seizure, Respondent stated to Officer Miller that the cannabis was his, to be smoked to help his eyesight, but offered no prescription or permit for cannabis possession. The premises search also produced three foil packets, each holding five 10 mg. tablets, later confirmed by the FDLE laboratory to contain Diazepam (Valium)(Item 3, Petitioner's Ex. 2). At the time of seizure, Respondent told Officer Miller that the Valium belonged to his roommate's brother, but offered nothing to support this statement. A search of the Respondent's vehicle, located adjacent to the licensed premises, revealed a case (forty-eight 200 ml. bottles) of Seagrams Gin. Vehicle permit number 659, issued by the Petitioner to Respondent for transporting the alcoholic beverages to be sold on the licensed premises, was found on the dashboard of this vehicle. Respondent admitted possession of the gin, but claimed he did not intend to sell it on the licensed premises.
Recommendation In consideration of the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent be found guilty of charges contained in counts one, two and four of the Notice to Show Cause. It is further RECOMMENDED: That Respondent's alcoholic beverage license, number 30-230 be REVOKED. DONE AND ENTERED this 8th day of December, 1981, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1981.
The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of the violation alleged in the Notice To Show Cause issued October 20, 1989 by the Director of the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation and filed herein.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this case, OB's Restaurant and Lounge, Inc. held a Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division) license for the premises known as OB's Restaurant and Lounge (OB's), alcoholic beverage license number 74-2421 SRX, Series 4-COP, located at 913 Highway 17, Pierson, Volusia County, Florida. Christine Shuter O'Brien, president of OB's Restaurant and Lounge, Inc. owns 100 per cent of the stock in the corporation. Ms. O'Brien has owned and operated OB's since July 1989. Camiel Long, born July 3, 1969, who was 20 years of age on October, 1989, works with law enforcement investigators of District 12 of the Division, Daytona Beach, Florida, as an Investigation Aide in determining whether licensed establishments are selling alcoholic beverage within their licensed premises to persons under the age of 21 years. On Saturday, October 7, 1989, Long met with Investigator Ron Sullivan for the purpose of Sullivan explaining the procedure used to effect underage investigation. At this time, Sullivan explained to Long that he would enter a licensed premises first and Long was to follow a few minutes later. Upon entry of the licensed premises Long was to approach the appropriate point of sale and ask to purchase an alcoholic beverage. Long was instructed to carry his own personal Florida Driver's license and to present the driver's license upon request. Long's Florida driver's license depicted him as having a mustache. The photographs taken on October 7, 1989 depicts Long as being clean shaven, without a mustache. One of the targeted licensed premises for October 7, 1989 was OB's because of a complaint received from the local police department. At approximately 9:45 p.m. on October 7, 1989, Sullivan and Long arrived at OB's parking lot and Sullivan then entered OB's, with Long following in approximately five minutes. Kevin Cox was in charge of checking identification (ID) at the door of OB's to keep out underage persons, and was in fact checking ID's at the door of OB's on Saturday night, October 7, 1989. On Saturday night, October 7, 1989, at the time Long entered OB's and purchased the beer, the bar was quite busy, some customers were playing pool and a band was playing, as was normal on Friday and Saturday night On Saturday night, October 7, 1989 there were several signs over the entrance to the bar at OB's indicating that proper identification was required and that it would be checked When Long entered OB's, Cox was checking several other persons' ID cards, and did not stop Long to check his ID as he "skirted" around him because he appeared to be about the same age as those persons Cox was checking who were in the 24-25 year-old bracket according to their ID cards. After entering OB's, Long found a seat at the bar, sat down, and ordered a Budweiser beer from Christine Shuter O'Brien who was tending bar at that time, along with Lorraine Ware. Ms. O'Brien opened a long-neck 12 ounce bottle of Budweiser beer, an alcoholic beverage, and served the beer to Long who paid Ms. O'Brien for the beer. Ms. O'Brien did not question Long's age or require any type of ID from him before selling and serving him the beer. Upon receiving the beer and his change, Long turned and handed the beer to Sullivan, and Long left the premises. Sullivan identified himself to Ms. O'Brien and advised her that he had observed her sell an alcoholic beverage to a person under the age of 21 years. Sullivan then requested that they move to area where they could speak. After moving to another area, Sullivan presented O'Brien with a Notice to Appear, in lieu of arrest. Ms. O'Brien has had no previous Beverage Law violation in any establishment that she has owned, including one in DeLand and one in Illinois. Ms. O'Brien's policy concerning the serving of alcoholic beverages is that if someone appears to be of age (21 years or older), then it is not necessary to request an ID to confirm their age. Both Kevin Cox and Lorraine Ware was aware of this policy, as well as other employees. Lorraine Ware, through experience and having taken a course taught by the Division concerning serving underage persons, is aware that it is her responsibility to avoid serving an underage person alcoholic beverage. Ware has also received instruction from Ms. O'Brien not to sell alcoholic beverages to an underage person. Long's appearance on Saturday night, October 7, 1989 and on the day of the hearing (February 13, 1990), four months later, was very similar, except for his clothing, and would cause an ordinary prudent person to question whether he was 21 years of age or older. Long's appearance should have caused both Cox and Ms. O'Brien to require him to confirm his age by some type of identification. O'Brien's failure to require confirmation of Long's age before selling him the beer on Saturday night, October 7, 1989 showed a lack of due diligence on her part, notwithstanding her presumption that Cox had checked Long's ID at the door, or the fact that she had several signs posted concerning the checking of ID's.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the mitigating circumstances surrounding the sale, it is, therefore, RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of a violation of Section 562.011(1)(a), Florida Statutes, and for such violation assess a civil penalty of $500.00. DONE AND ENTERED this 21st day of March, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6962 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-2. Adopted in Findings of Fact 1 and 3, respectively. Adopted in Findings of Fact 4 and 5. Adopted in Findings of Fact 6 and 7. 5.-9 Adopted in Findings of Fact 8, 12, 13, 14 and 12, respectively. 10. Adopted in Findings of Fact 2, 15. 11.-15. Adopted in Findings of Fact 16, 8, 18, 9 and 18, respectively. 16 Rejected as not being supported by substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-3. Covered in Preliminary Statement. Covered in beginning paragraphs. Covered in Preliminary Statement and in Findings of Fact 5. Adopted in Findings of Fact 5, as modified. Adopted in Findings of Fact 4 and 5, as modified. Adopted in Findings of Fact 7, 12 and 14, as modified, except for the last sentence which was rejected because O'Brien was not arrested but given Notice To Appear in lieu of an arrest. 9.-14. Rejected as being more of a restatement of testimony than proposed findings of fact, but if stated as proposed findings of fact then adopted in Findings of Fact 8, 9, 10, 12 and 17. COPIES FURNISHED: Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399- Joseph A. Scarlett, Esquire 208 West Howry Avenue Deland, Florida 32720
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
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, James P. Carpenter, held alcoholic beverage license number 21-429, Series 2-COP, issued by the State of Florida. On August 6, 1987, Alphonso Fontdevila, a Community Service Deputy with the Collier County Sheriff's Office, and an individual under the age of nineteen, was on special detail with sheriff's deputy, Todd Taylor, checking out various liquor stores in the area to see if the operators were checking the age of purchasers. At approximately 9:00 p.m., Fontdevila and Taylor drove in an unmarked car to the Respondent's place of business, the Pony Keg, a drive through bar and restaurant located on U.S. 41 South in Naples, Florida. Before Fontdevila entered the facility, Taylor got out of the car and went over to stand by some bushes to the side of the facility. Though concealed from sight, he could see what was going on inside the facility. He observed Fontdevila drive into the facility and up to the counter, where he was waited on by the Respondent, personally. Mr. Carpenter approached Fontdevila from behind the counter and asked what he wanted. When Fontdevila indicated he wanted a six pack of beer, Respondent gave it to him. Mr. Fontdevila paid Respondent $3.24, receiving change from a $5 bill. At no time did Mr. Carpenter ask for any identification or proof of age from Mr. Fontdevila. Having made the purchase, Mr. Fontdevila left the facility, picked up Mr. Taylor and returned to the sheriff's office. Respondent claims no recollection of the purchase in question. However, he claims that on the date of the purchase, a Thursday, he was in his office working on the payroll. Though he usually has two people on duty in the facility, when necessary he comes out and serves patrons to speed service. On the evening in question, trade was sporadic. When Fontdevila entered the facility, Carpenter had just come out of his office to help his sales' lady serve a line of cars and they were not working fast. It is often difficult to get a good look at patrons when one is off to the side looking into a dark car, especially at night. It is difficult to tell if the person or patron is over age or not. Respondent has a standard procedure at the Pony Keg which requires his employees to check identification. Because he understands kids will try to buy beer improperly, he emphasizes to all his employees the need to check identification and age. If he suspects a minor is trying to buy beer, the patron is normally refused service if he will not produce identification to establish age. In some cases in the past, his employees have called the sheriff's office to come to the facility when they suspect an underaged individual is making a purchase. However, since he has no authority to hold the patron, ordinarily the patron is gone by the time the sheriff's car gets there. Mr. Carpenter was issued a citation in this case and tried in county court. The judge withheld adjudication and imposed court costs. The records of the Division of Alcoholic Beverages and Tobacco reflect that on November 16, 1983, Respondent was issued an official notice that an employee had been observed selling alcoholic beverages to an underaged individual and on April 23, 1986, the Respondent was issued a second official notice alleging similar misconduct. Respondent has, since this latest incident, been instrumental in the establishment of a seminar for facility owners on methods of identifying patrons for age. He has also put his business up for sale.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore RECOMMENDED that the Respondent's 2-COP alcoholic beverage license number 21-429 be suspended for thirty days and that he pay a fine of $500. RECOMMENDED in Tallahassee this 29th day of March, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-4934 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the Petitioner herein. 1-6. Accepted and incorporated herein. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Christine Hissam, Esguire Faerber and Miller 2335 Tamiami Trail North Suite 505 Naples, Florida 33940-4482 s Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph Sole General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue Whether the respondent committed the violations alleged in the Administrative Action dated June 19, 1996, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state agency charged with enforcing Florida’s Beverage Law and, specifically, with regulating the sale of alcoholic beverages in the state. Sections 561.02 and .11(1), Florida Statutes. At all times material to this proceeding, Whistle Stop, Inc., held alcoholic beverage license number 60-00055, Series 4COP, for an establishment known as the Whistle Stop, located at 196 and 198 Camino Real, Boca Raton, Palm Beach County, Florida. At all times material to this proceeding, Rose S. DuMond was president and owner of Whistle Stop, Inc. When investigating sales to underage persons, the Department uses “investigative aides.” These aides are under 21 years of age, who must volunteer to participate in the program and have parental consent to do so. Investigative aides are directed to answer truthfully if asked their age; even thought they are also directed to show identification if asked, the aides generally do not carry identification when attempting to make a purchase. An investigative aide always works with a law enforcement person, who must witness the sale. The Department opened an investigation of the Whistle Stop on May 30, 1996, to check for compliance with the laws prohibiting the sale of alcoholic beverages to persons under 21 years of age. An investigative aide attempted to purchase an alcoholic beverage at the Whistle Stop on June 7, 1996, however, the clerk asked for identification and the purchase was not completed. Consistent with the Department’s practice to offer the targeted establishment a second opportunity to sell an alcoholic beverage to an underage person before closing an investigation, a second visit to the Whistle Stop was made on June 15, 1996. At approximately 8:30 p.m., Special Agent Andrew Panzer drove Investigative Aide Timothy Saloney to the Whistle Stop. Timothy was an experienced investigative aide, who, on the night in question, was 19 years of age. Timothy indicated that he had not received any formal training but just did what he was instructed to do by the agent in charge of the investigation. Usually, his instructions were to enter the establishment under investigation, to select a beer from the cooler and put it on the counter, and to leave it on the counter after paying for it. Timothy was also instructed to tell the truth if asked his age; if asked for identification, he was instructed to tell the clerk he did not have any with him. On this particular night, Special Agent Panzer instructed him to leave his identification in the vehicle. He was to enter the Whistle Stop package store and to attempt to purchase one Budweiser beer. The package store was locked, but a man opened the door of the adjacent lounge area and beckoned him in. Timothy went into the lounge, walked to the bar, and asked Rose DuMond, who was tending bar that night, for a Budweiser. She asked “Are you old enough?” Timothy did not answer by telling Ms. DuMond the truth about his age; rather he replied “Well, what do you think?” or “Why, don’t I look old enough?” Ms. DuMond replied something to the effect that he looked old enough, but she did not ask for identification. She placed a glass on the bar in front of Timothy and poured part of a bottle of Budweiser beer into the glass. She rang up the sale, and Timothy paid for the beer. Agent Panzer entered the bar right after Timothy and stood in the back because Ms. DuMond knew him. He observed Timothy at the end of the bar, saw him in conversation with Ms. DuMond, and saw her serve him the beer. After Timothy had paid Ms. DuMond, Agent Panzer signaled him to leave the bar. Agent Panzer moved forward, took possession of the bottle of beer, and poured some of the contents of the glass into a specimen bottle, which he then sealed. The evidence is clear and convincing that Ms. DuMond sold an alcoholic beverage to a person under the age of 21 years.
Recommendation Based on 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 finding Whistle Stop, Inc., guilty of violating section 562.11(1), Florida Statutes (1995), imposing an administrative fine in the amount of $1,000, and suspending its license for a period of seven (7) days. DONE AND ENTERED this 24th day of February, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 24th day of February, 1997. COPIES FURNISHED: Thomas D. Winokur, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Jeff M. Brown, Esquire Lavalle, Brown, Ronan and Soff, P. A. 750 South Dixie Highway Boca Raton, Florida 33431 Richard Boyd, Director 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
The Issue Whether petitioner's application to change its corporate officers should be denied because the proposed officer allegedly lacks good moral character.
Findings Of Fact The Village Zoo holds alcoholic beverage license no. 16-839, Series 4- COP SR, authorizing it to serve alcoholic beverages at its bar (the "licensed premises") at 900 Sunrise Lane, Fort Lauderdale, Florida. On September 22, 1982, the Village Zoo filed an application with DABT to change corporate officers by adding James C. Dowd as a vice president1. While this application was pending, James C. Dowd was employed as one of the managers at the Village Zoo. One of his duties was to help the bartender serve alcoholic beverages on an as-needed basis. On November 5, 1982, undercover Beverage Officer Tom Wheeler, 24, entered the licensed premises to investigate complaints of alleged sales of alcoholic beverages to underaged persons--persons under the age of 19. He paid a cover charge at the door, his identification was not checked. Inside, he saw 50-75 young patrons crowded in the area of the second floor bar. Two persons were tending bar, one of whom was James C. Dowd. Officer Wheeler saw two young patrons, William Esler, 17, and Kelly Heatherman, 18, approach the bar and ordered drinks from Mr. Dowd, who then served them two alcoholic beverages. (William Esler ordered and was served a Whiskey and Seven- up; Kelly Heatherman ordered and was served a Budweiser beer). Mr. Dowd served them these drinks without asking their age or checking their identification. When these two underaged individuals ordered the drinks, they were standing at the bar and in plain view of Mr. Dowd; they were neither standing behind others nor hidden from view. After Mr. Dowd served these two drinks, he was arrested and charged with the crime of serving alcoholic beverages to persons under the age of 19. When Kelly Heatherman and William Esler, the two underaged persons, entered the premises that evening, they paid a cover charge but their age was not questioned at the entry door. Neither was their identification checked. The Village Zoo has a reputation in the community as a popular gathering place for young people. Both William Esler and Kelly Heatherman had been there before. William Esler had been there twice, prior to the November 5, 1982, incident, and once since. His identification had never been checked, although he did not order a drink on his last visit. Kelly Heatherman had been there every week from approximately September (1982) to November 5, 1982. During most of his visits, he ordered alcoholic beverages. One time, his identification was checked at the door and he was turned away. Since the November 5, 1982, incident, he has returned to the Village Zoo a couple of times. James C. Dowd was aware of Heatherman's continued patronage of the Village Zoo and described Heatherman as a regular customer. Heatherman continued to order and was served alcoholic beverages during his visits to the Village Zoo after November 5, 1982. After November 5, 1982, Heatherman continued to enter the Village Zoo without having his identification checked, despite the fact he was identified to the Village Zoo and James C. Dowd, on November 5, 1982, as being under the legal age (19) to possess or consume alcoholic beverages. Both William Esler and Kelly Heatherman were, as of the date of the administrative hearing on this case, under the age of 19 years. James C. Dowd knew or should have known that Kelly Heatherman's consumption of alcoholic beverages served by the Village Zoo after November 5, 1982, was contrary to the Beverage Law. (This paragraph contains findings of fact which are in addition to those found by the Hearing Officer. Such additional facts are not contrary to those found by the Hearing Officer, rather they amplify the same and are supported by competent, substantial evidence in the form of sworn testimony of Kelly Heatherman, William Esler and James C. Dowd). The Village Zoo had an announced policy prohibiting the sale of alcoholic beverages to underaged persons and prohibiting their entry onto the licensed premises. To enforce this policy, two persons were posted at the entryway to check identification and collect cover charges from patrons. Peter Balcunas, and off-duty Fort Lauderdale policeman, was also hired to provide security and assistance to the door-checkers. He was ordinarily posted near the front door, outside the premises. Under this Village Zoo policy, the two door-checkers had the primary responsibility to check the identification of patrons and prevent underaged persons from entering the premises. All employees, however, had the duty to check the identification of any patron if there was any question or doubt about whether the individual was of drinking age. Both William Esler and Kelly Heatherman fall within this "questionable or doubtful" category. From their demeanor and outward appearance at hearing, it is difficult to determine their true age. Their faces are mature for their age and they could reasonably pass as 18, 19 or 20-year olds. On the evening of November 5, 1982, Kelly Heatherman and William Esler entered the premises, walking past the door-checkers and Officer Balcunas. They then proceeded to the second floor bar and ordered drinks from Mr. Dowd. Their age was not questioned and their identification was not checked. The Village Zoo's announced policy of forbidding sale of alcoholic beverages to minors, including steps taken to enforce it, compares favorably with those of similar businesses in the area serving alcoholic beverages. James C. Dowd, the person allegedly lacking in good moral character, has a reputation in the community as an honest trustworthy, hardworking and law- abiding man. He attends church regularly. His business associates view him as a man who honors his financial obligations and who has good moral character. Mr. Dowd does not recall serving alcoholic beverages to William Esler and Kelly Heatherman on November 5, 1982. There was a crowd of customers near the bar at the time, and he was helping the bartender serve drinks as quickly as possible. Nevertheless, in his haste, he violated the Village Zoo policy. He served alcoholic beverages to two youthful-looking persons whose age was difficult to determine, without inquiring as to their age or checking their identification. There is no evidence that he knowingly and intentionally sold alcoholic beverages to underaged persons. (Two sentences contained in the Recommended Order at this place, were deleted as such constitute conclusions of law, not of fact). Although there was evidence that the two underaged persons had been served alcoholic beverages at the Village Zoo prior to and after November 5, 1982, it was not shown that Mr. Dowd served them or that (as one of the managers) he was culpably responsible.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Village Zoo's application to change corporate officers be granted. DONE and ENTERED this 29th day of June, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1983.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the regulatory agency charged with enforcing beverage and cigarette tax laws. As part of its duties, Petitioner investigate the sales of cigarettes to minors (under age persons). Respondent, Workman, Inc., d/b/a Coastal Mart, is the holder of alcoholic beverage license number 39-02924, series 1-APS, and retail tobacco products permit number 39-04440. Respondent's licensed premises is located at 9931 North Florida Avenue, Tampa, Florida. Raymond Daoud is Respondent's sole stockholder and is a corporate officer. Pursuant to an anonymous complaint received by Petitioner during the spring of 1993, Special Agent Joseph A. Maggio directed investigative aide Kimberly Siebel to enter the premises of Coastal Mart and attempt to purchase cigarettes. Petitioner, during times material, utilized the services of investigative aides Kimberly Siebel and Stephanie Haley, whose birth dates are September 20, 1975, and January 24, 1978, respectively. Both aides were under the age of 18 during the spring of 1993. Investigative aides Siebel and Haley, are trained by Petitioner, when conducting investigations for the purchase of either beer or cigarettes, to enter premises and to truthfully tell their age when requested. They also provide proper identification to establish their age if requested to do so by the clerk when they are attempting to purchase beer or cigarettes. This procedure was used in this case by investigative aides Siebel and Haley when they purchased cigarettes from Respondent on May 20 and July 8, 1993. When investigative aide Siebel purchased cigarettes from Respondent on May 20, 1993, she had previously worked as an undercover operative for Petitioner approximately 30 times. On May 20, 1993, Siebel entered the premises of Respondent with Special Agent Maggio at approximately 9:25 p.m. Investigative aide Siebel approached the counter and ordered a pack of Marlboro Light cigarettes from the clerk who was later identified as Angela Schulte, an employee of Respondent. Ms. Siebel received a pack of Marlboro Light cigarettes as requested from Schulte without being asked for identification. She paid for the cigarettes and exited the store. Special Agent Maggio observed the purchase of cigarettes by Siebel from his position next in line behind her. When Siebel purchased the cigarettes from Schulte on May 20, 1993, she and Special Agent Maggio observed Respondent, Daoud, behind the counter when they entered the licensed premises. When Siebel and Maggio exited the premises, Siebel gave the cigarettes to Maggio. Maggio placed the cigarettes in a plastic bag and Siebel signed them. Maggio then sealed and placed them in the locked trunk of his vehicle until they were deposited in Petitioner's evidence file the following day. Approximately ten minutes after Siebel purchased the cigarettes and turned them over to Maggio, he reentered the premises, identified himself to Schulte, and advised her that she was under arrest for the sale of cigarettes to an under age person. Daoud was still inside the premises near the front counter. Special Agent Fisher, who is no longer employed by Petitioner, accompanied Special Agent Maggio inside the premises. Fisher completed a letter of warning and Daoud signed the warning. Fisher gave Daoud a copy of the warning as they left. On July 8, 1993, Maggio again directed investigative aide Stephanie Haley to enter Respondent's premises to attempt to purchase cigarettes. On July 8, 1993, investigative aide Haley was fifteen years old. Haley had on her person a Florida Drivers License showing her birthday to be January 24, 1978. On July 8, 1993, investigative aide Haley had previously acted as an undercover operative for Petitioner approximately 20 times. On July 8, 1993, Haley entered the premises of Respondent and approached the counter. She ordered a pack of Marlboro Light cigarettes from the clerk, who was later identified as Raymond Daoud. Daoud asked Haley for identification whereupon she presented her Florida Drivers License. Daoud examined the license and completed the transaction. Haley exited the premises and turned over the cigarettes purchased to Special Agent Maggio. Special Agents Maggio and Bock witnessed the transaction from a vantage point outside the premises. Maggio and Special Agent Bock then entered the premises of Coastal Mart and Bock identified himself and placed Daoud under arrest for the sale of cigarettes to an underage person. Daoud complained that he had been "setup" and that he remembered the girl, "thought she was young," and asked her for identification. Daoud observed Haley's license and thought that it had eighteen years of age on it. Special Agent Bock reminded Daoud that the license did not have an age on it. Daoud insisted that he thought the license had the date 1979 which would, of course, make investigative aide Haley, fourteen when she was, in fact, fifteen at the time. Petitioner has a policy of not letting undercover operatives reenter premises to allow licensed vendors to review items from undercover operatives such as their identification cards, etc., so as not to jeopardize them in future operations and for their own personal safety. Petitioner explained to Respondent that he could examine the identifying card (license) either during the hearing or in court. Respondent suspended Schulte for one week without pay for selling cigarettes to a minor. Respondent also verbally warned Schulte for selling cigarettes to a minor and reminded her that it was against company policy to do so. Schulte recalled that Respondent was "extremely mad" about the incident. Respondent would not knowingly sell cigarettes or alcoholic beverages to a minor. Respondent has operated his business for approximately three years, and this is the first infraction that he has received for the sale of beer or cigarettes to a minor.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent's alcoholic beverage license number 39-02924, series #1-APS, be assessed a $500.00 civil penalty for each count for a total civil penalty of $1,000.00. 1/ RECOMMENDED in Tallahassee, Leon County, Florida, this 4th day of April, 1994. JAMES E. BRADWELL 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 4th day of April, 1994.
The Issue The issue in this case is whether Petitioner should suspend or revoke Respondent's alcoholic beverage license, pursuant to Section 561.29(1), Florida Statutes (1995),1 and Florida Administrative Rule 61A-2.022,2 because Respondent operated the licensed premises in a manner that was a public nuisance and permitted others to violate state criminal laws prohibiting the possession and use of controlled substances, or both.
Findings Of Fact Petitioner is the state agency responsible for regulating alcoholic beverage licenses. Respondent holds alcoholic beverage license number 15-02695, series 2-COP for the Red Top Lounge located at 2804 Kennedy Street, Mims, Florida (the "licensed premises"). Respondent is the sole proprietor of the licensed premises. On February 13, 1997, two of Petitioner's special agents ("SAS") and other undercover law enforcement officers entered the licensed premises as part of an ongoing narcotics investigation. Several patrons of the licensed premises were consuming marijuana and rolling marijuana cigars in plain view of Respondent's employees and managers. Respondent was not present at the time. On February 28, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Black." On March 14, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. After midnight on March 15, 1997, the SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Marty." On March 15, 1997, the same SAS and law enforcement officers returned to the licensed premises, incident to the same investigation. After midnight on March 16, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. The disc jockey routinely encouraged patrons over the public address system to smoke marijuana inside the licensed premises. On April 25, 1997, one of the same SAS, another SAS, and other law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Kenny Harvey." On April 26, 1997, the same SAS and law enforcement officers involved in the investigation on the previous day returned to the licensed premises. After midnight on April 27, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. On May 2, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. After midnight on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 3, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Roy." After the previous transaction on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 4, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. Subsequent to each purchase of marijuana by the SAS, the items purchased were chemically analyzed in a laboratory and found to be marijuana. Subsequent to each purchase of cocaine by the SAS, the items purchased were chemically analyzed in a laboratory and found to be cocaine. The SAS involved in the investigation have extensive experience and training in narcotics investigation and detection of controlled substances. They have conducted numerous undercover investigations. Each agent has personal knowledge of the appearance and smell of marijuana. The open, flagrant, and notorious drug activity on the licensed premises was the worst each agent had observed in his career. Each time the SAS entered the licensed premises, underage patrons consumed alcoholic beverages. More than half of the patrons present on each occasion consumed and rolled marijuana cigars. The second-hand marijuana smoke inside the premises was so great that the SAS were concerned for their personal health and the affect the second-hand smoke could have on each agent if subjected to a random drug test, pursuant to agency policy. The purchase, consumption, and use of marijuana occurred in plain view of Respondent's employees and managers. Respondent's managers and employees never attempted to prohibit the illegal drug activity. Respondent was never present on the licensed premises. She was caring for her daughter who died on April 2, 1997. During the time she was caring for daughter, Respondent relinquished management and control of the licensed premises to her granddaughter and her boyfriend.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's alcohol and tobacco license. DONE AND ENTERED this 7th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 7th day of August, 1997.
