The Issue The issues presented are those set forth in a notice to show cause filed by Petitioner against Respondents in Case No. AY-74-87-0201. In particular, it is alleged that on March 16, 1988, October 21, 1988 and February 24, 1989, that the Respondents or their agents, servants or employees sold alcoholic beverages to minors in violation of Sections 561.29, Florida Statutes and 562.11(1)(a), Florida Statutes.
Findings Of Fact At all times which pertain to this Notice to Show Cause/Administrative Complaint, Respondents were doing business at 238-240 Atlantic Avenue, Daytona Beach, Volusia County, Florida under the business name Speidi Shack and pursuant to a beverage license issued by Petitioner. That license number was and continues to be number 74-01802, Series 2-COP. On March 16, 1988, and again on October 21, 1988, Michael Vanorder, whose birthday is March 27, 1969, purchased a Light beer from employees of the Respondents in the licensed premises. On February 24, 1989, Tina May purchased a Light beer from an employee of the Respondents in the licensed premises. Her date of birth is August 4, 1968. The Light beers that were purchased by those two individuals are alcoholic beverages. In the incident of March 16, 1988, Vanorder entered the licensed premises as an underage operative of the Petitioner. The purpose of underage operatives is to assist the Petitioner in investigations to ascertain whether suspected alcoholic beverage license holders will sell alcoholic beverages to minors. Vanorder was provided money from the Petitioner to purchase the alcoholic beverage if the licensees, their agents or employees would sell. Betty Warner and Tanya Pandarakis, who are Alcoholic Beverage Agents for Petitioner were in the bar and watched as Vanorder was asked by the bartender what Vanorder wanted. Vanorder indicated that he wanted a Light beer. Mark Barker, the bartender, brought a Light beer to Vanorder and accepted payment for that beer. In this purchase, Vanorder was not asked to produce any identification nor was he asked how old he was. Vanorder was under instructions from Petitioner's agents to validly respond to any questions about his age and to provide accurate identification in support of his remarks. The beer that he was given had been opened by the bartender. These events occurred around 8:35 p.m. The beer that was purchased was then given from Vanorder to Warner. Barker was then arrested by Warner and another Alcoholic Beverage Agent, Fred Dunbar, for selling alcoholic beverages to a minor. The arrest occurred when Dunbar entered the licensed premises following the sale and identified himself as an Alcoholic Beverage Agent. Prior to leaving the premises on that occasion, Respondent John M. Macker was told of the arrest and why an investigation had been made in the first place about suspected sales to minors in the licensed premises. Macker came the next day to meet with Dunbar at the invitation of Dunbar. Macker was told that a complaint file would remain open and that underage operatives would continue to be sent into the licensed premises to see if Macker had corrected the problem of selling to underage patrons. Respondent Macker promised that he would have closer supervision and would give training to his employees about proper identification techniques for sales of alcoholic beverages in the licensed premises. An official notice was given to the Respondents, a copy of which may be found as Petitioner's Exhibit No. 3 which was admitted into evidence. That notice is dated March 17, 1988 and is issued from Dunbar and is acknowledged as having been received by Respondent Macker. It identifies the facts of the sale to a minor and the arrest of Mark Barker and warns Respondents that if the violation occurs again, that Respondents could be charged with the violation of March 16, 1988 and any future violations. Throughout this warning phase associated with the sale of March 16, 1988 Respondent Macker was cooperative in his attitude. As forecast, Petitioner sent Vanorder back into the licensed premises on October 21, 1988 to see if Respondents, their agents, servants or employees would sell him alcoholic beverages. Beverage Agent John Szabo, Agent Dunbar, Lt. Powell and Vanorder went to the licensed premises on that evening. Their activities at the licensed premises commenced around 8:55 p.m. At this time, there were around 10-20 patrons in the bar. Szabo went in first and sat down at the bar and ordered a beer. Vanorder came in some 2-3 minutes later and sat down at the bar. A white female bartender who was identified later as Beth Ann Marsden approached Vanorder and asked him what she could get for him. He asked for a Bud Light. The bartender went to the cooler and came back with an open can of Bud Light and said that the cost of that beer would be $1.25. Vanorder paid her and she gave him back change. Vanorder then went outside the licensed premises and gave the beer to Dunbar. During the course of this purchase, Vanorder was not asked his age or asked for any form of identification which would demonstrate his age. As before, Vanorder was prepared to show a valid identification and give his correct age. After Dunbar was given the beer, he came into the licensed premises and he and Szabo confronted the bartender with the fact that she had sold beer to an underaged patron. They asked if the owner was on the premises and she said that he was not. The bartender was then charged with selling to a minor. She was given a Notice of Appearance for October 25, 1988 which constituted of a letter of final warning to the licensee. A third phase of the investigation occurred on February 24, 1989 when Tina May, an underaged operative for the Petitioner assisted in the investigation of sales to minors. Around 10:50 p.m., Officer Szabo, Beverage Officer Sullivan and Tina May went to the licensed premises. Szabo went in the bar first. One customer was in the bar. Szabo asked for a beer and was asked for his identification and showed his license and was served a beer. Before Tina May entered the license premises, she had been instructed to dress in normal attire and to carry her drivers license and to tell the truth about her age and to give the correct identification. Once inside the licensed premises, May sat where she could be seen by Officer Szabo. The other patron left the bar. Around 11:00 p.m., May was approached by Beth Ann Marsden who asked May what she wanted. May replied that she wanted a Bud Light. The bartender asked for identification and a driver's license was produced which showed May to be underage. Marsden was seen to count on her fingers when shown the identification. She opened up a Bud Light beer for May and gave it to her and said that the price of the beer was $1.25. May gave her $5.00 and received change. She then gave the beer to Szabo. Szabo then told the bartender that he was a Beverage Officer. Marsden recognized Szabo from the prior incident with Vanorder on October 21, 1988. Marsden told Szabo that May was 21 years old. Szabo got the driver's license from May and showed it to the bartender who admitted that she had made a mistake and that she didn't look at the month of the birth. She had only looked at the year, 1968. Out of this incident, an Official Notice was prepared, a copy of which may be found as Petitioner's Exhibit No. 4 admitted into evidence. It sets out the violations of March 16, 1988, October 21, 1988 and February 24, 1989 and the intention of the Petitioner to file administrative charges against the Respondents for sales to minors. Since the Respondents were not there, the list was left with a Rosemarie Savini. That notice was served on November 2, 1989. Before the time of the final hearing in this case, the sole ownership of the licensed premises had been left with John M. Macker. Linda F. Williams no longer is involved with the license in question. Respondent Macker's principle business is that of a commercial fisherman. During the pendency of this investigation, he was gone a lot from his licensed premises because of his other work and relied on his employees to act appropriately concerning sales to minors. In the period 1985 until January, 1989, he had not experienced problems with this. He had posted notices around the bar about sales to minors and had instructed his employees about being careful not to sell to minors. He has calendars from beer distributors which assist in ascertaining the age of minors. March 16, 1988 was Barker's first day on the job, as was October 21, 1988 the first day on the job for Beth Ann Marsden. His instructions to his employees was to check identification if people did not look at least in their fifties or older than Respondent. Since these events, Respondent has taken more detailed steps and placed other signs to avoid sales to minors. He doesn't wish these problems to occur again and regrets that they happened on this occasion. On the other hand, he did not ask for help from the Petitioner after the October 21, 1988 incident as was offered. Following the third sale, he has moved into the licensed premises to maintain better control of the circumstance. No other incidents were reported to have occurred beyond that adjustment concerning sales to minors.
Recommendation Having considered the facts, and the conclusions of law reached, it is, RECOMMENDED that a Final Order be entered which fines the Respondents in the amount of $500 for these violations. DONE and ORDERED this 19th day of October, 1989, in Tallahassee, Florida. CHARLES C. ADAMS 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 19th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2457 Those facts as suggested by the Petitioner are subordinate to facts found in this Recommended Order. COPIES FURNISHED: Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John B. Fretwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 John M. Macker 238-240 North Atlantic Avenue Daytona Beach, Florida 32018
Findings Of Fact 6. A thorough review of the entire record of this matter reveals that the Findings of Fact contained in the Recommended Order are based on competent, substantial eviclence and that the proceedings on which the findings were based complied with the essential requirements of the law. 7. The Division hereby adopts and incorporates by reference the Findings of Fact as set forth in the Recommended Order.
Conclusions This matter comes before me for final Agency Order. The issue before me is whether and to what extent Respondent’s alcoholic beverage licenses are subject to penalties pursuant to Sections 212.14, 212.15, 832.05, 561.29(1)(a) and (e), Florida Statutes, and Rule 61A-2.022 Florida Administrative Code. Whether the Respondent’s Aicoholic Beverage Licenses are subject to revocation pursuant to Section 561.29, Florida Statutes. 3
Findings Of Fact On April 26, 1982, the Petitioner Dania Bank, filed a request with the Respondent Department of Business Regulation, Division of Alcoholic Beverages and Tobacco to record a lien holder's interest against alcoholic beverage license 16-15 issued to the Respondent Chula, Inc., doing business as Chalet Ole and Chula Liquors. The lien was created on July 3, 1981, and filed with the Secretary of State on August 10, 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Division of Alcoholic Beverages and Tobacco denying the Petitioner Dania Bank's request to record a lien against alcoholic beverage license number 16-15. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 31st day of October, 1983. COPIES FURNISHED: Richard E. Whitney, Vice President The Dania Bank 255 East Dania Beach Boulevard Dania, Florida 33004 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues for determination are whether Respondent, holder of an alcoholic beverage license, sold or permitted the sale of alcoholic beverages to minors on his licensed premises; whether Respondent retained alcoholic beverage invoices or sales tickets for three years in accordance with licensure requirements; and whether Respondent kept cigarette invoices or sales tickets for three years in accordance with licensure requirements.
Findings Of Fact Respondent is David L. Crews, holder of Alcoholic Beverage License No. 55-00162, series 1-APS, for a licensed premises known as Crews Texaco located in Nassau County, Florida. On December 15, 1989, Respondent sold William Christopher Brannan a twelve pack of beer which is an alcoholic beverage. Brannan was 17 years of age at the time Respondent sold him the beer. At the time of the sale, Respondent did not ask for proof of age or any other form of identification from Brannan. Accompanying Brannan on December 15, 1989, were two other teenagers: Robert Terrell Simmons, Jr., and Larry W. Wilkerson. Respondent sold Simmons a case of Busch beer, an alcoholic beverage, at the same time as the sale to Brannan. Simmons was 18 years of age at the time of the sale. Respondent did not ask for proof of age or any other form of identification from either Simmons or Wilkerson. It was common knowledge in the area that Respondent would readily sell alcoholic beverages at a higher than normal price to persons under the lawful age of 21 years. Respondent charged Brannan and Simmons a higher price for the alcoholic beverages purchased by them because he knew they were under the age of 21 years. Brannan, Simmons and Wilkerson had attempted to purchase alcoholic beverages from Respondent earlier in the evening, but Respondent waved them away because law enforcement personnel were investigating a domestic disturbance near his business. Later in the evening of December 15, 1989, after purchasing the alcoholic beverages from Respondent, the three youths were involved in a alcohol related accident and Brannan was killed. On April 30, 1990, Respondent was convicted in Nassau County Court of two counts of providing alcoholic beverages to a minor and paid a fine of $127.50 on each count. He also received a 30 day suspended sentence on each count. On March 9, 1990, agents for Petitioner's Division of Alcoholic Beverages and Tobacco interviewed Respondent about the matter of sale of alcoholic beverages to underage persons and conducted an inspection of his licensed premises. In the course of the inspection, the agents requested that Respondent produce his alcoholic beverage and cigarette invoices. Respondent was unable to produce the invoices and admitted to the agents that he had used the invoices for writing paper and had then thrown them away. Respondent reaffirmed these statements at the final hearing. As of December 20, 1991, Respondent has failed to produce either alcoholic beverage or cigarette invoices. As established by his own testimony at the final hearing, prior to March 9, 1990, Respondent did not maintain either alcoholic beverage or cigarette invoices on the licensed premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered suspending Respondent's beverage license bearing number 55-00162, Series 1- APS, for a period of 40 days and requiring payment of a administrative fine in the amount of $2,000. DONE AND ENTERED this 14th day of January, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1992. 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. 1.-21. Adopted, although not verbatim. 22.-26.Rejected, unnecessary. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Robin L. Suarez, Esq. Assistant General Counsel Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007 David L. Crews U. S. 1 & 5th Street Hilliard, Florida 32046 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007 Janet Ferris, Secretary Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1000 Richard W. Scully, Director Division of Alcoholic Beverages Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007
The Issue Whether Respondent's plea of nolo contendere to the crime of possession of a controlled substance (for which adjudication was withheld) is sufficient to support the imposition of discipline with regard to his alcoholic beverage license.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to issue beverage licenses pursuant to Chapter 561, Florida Statutes, and applicable rules. Prior to September 11, 2000, Respondent, doing business as Smiley's, was the owner and holder of a beverage license, DBPR License No. 74-05336, Series 2-COP, which permits him to sell beer and wine for consumption on premises. On October 9, 1998, Respondent was charged by information with sale and delivery of cocaine. He was acquitted of that charge on May 12, 2000. Subsequently in a separate incident, Respondent was charged with possession of cocaine and on September 11, 2000, pleaded no contest to that charge. Pursuant to Respondent's timely request for formal proceedings, Petitioner's counsel initiated discovery in the course of this administrative proceeding through a Request for Admissions to which Respondent failed to respond. Respondent failed to provide a satisfactory explanation for this circumstance and, upon motion of Petitioner, the Request for Admissions was deemed admitted. Those admissions establish that Respondent entered a no contest plea on September 11, 2000, to the charge of possession of cocaine and that the plea bargain negotiated at that time also included two days' incarceration. Additionally, the admissions establish that Respondent is aware that possession of cocaine is a crime punishable by imprisonment for a term of five years. Respondent's own testimony is uncorroborated by other direct evidence and fails to establish that he possesses good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's alcoholic beverage license, DBPR License No. 74-05336, Series 2-COP. DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2001. COPIES FURNISHED: Paul Kwilecki, Jr., Esquire 629 North Peninsula Drive Daytona Beach, Florida 32118 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Lt. John P. Szabo Department of Business and Professional Regulation 400 West Robinson Street, Room 709 Orlando, Florida 32801 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Suamy Corporation, held license number 23-21872, series 2APS, authorizing it to operate a beer and wine package store (the sale of beer and wine for off-premises consumption) at the premises of a business known as Bristol Sundries, located at 2127 Brickell Avenue, Miami, Florida (hereinafter "the licensed premises").2 Milagros Suarez was the sole shareholder, as well as the sole corporate officer, of the Respondent corporation. On February 11, 1997, Leonard DelMonte, a special agent with the Division of Alcoholic Beverages and Tobacco, undertook an inspection of the licensed premises. Upon entry into the premises, the agent observed shelves on his left that contained bottles of liquor on display, and behind the counter he observed more shelving, which contained more bottles of liquor on display, together with bottles of wine. A cash register was observed on the counter, and an employee was present to attend the needs of customers. The agent inspected, inventoried, and seized 19 bottles of distilled spirits (Petitioner's Exhibits 2-1 through 2-19) on the licensed premises. (Petitioner's Exhibit 1). The bottles were all sealed; labeled as distilled spirits, such as rum, scotch, gin, and vodka; and carried the name, trademark, or insignia of commonly known manufacturers of distilled spirits, such as Johnny Walker, Cuervo, Pinch, and Bombay. The bottles also had affixed to them price stickers, of the same type affixed to the wine that was offered for sale, and contained prices that were consistent with the retail price of the product. Given the facts, it is apparent that Respondent was offering the distilled spirits for sale on the licensed premises.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the charge set forth in the Administrative Action and imposing a civil penalty of $1,000 for such violation, subject to Respondent's option to substitute a period of suspension in lieu of all or a portion of the civil penalty. DONE AND ENTERED this 27th day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1998.
The Issue Did Respondent sell an alcoholic beverage to a person under the age of 21, in violation of Section 562.11(1)(a), Florida Statutes, as alleged in the Administrative Action issued June 1, 1998?
Findings Of Fact At all times relevant and material to this proceeding, Respondent held license number 47-02960, series 2-APS, authorizing the sale of alcoholic beverages on the premises of Timesaver #9, located at 2415 Jackson Bluff Road, Tallahassee, Leon County, Florida. Kamel Beshara Goor is the sole corporate officer and owner of Timesaver #9. On the evening of May 29, 1998, Eric Von Strosnider entered the licensed premises in an undercover capacity on behalf of Petitioner Agency. Mr. Strosnider was born February 18, 1981, and carried a valid driver's license showing his correct birth date. Mr. Strosnider removed a single can of "Bud Lite" beer from the beer section of the store and presented it to Mr. Goor for purchase. Mr. Strosnider remembered clearly he picked up a "Bud Lite" because that was the type of beer he always selected during an attempted undercover buy. He paid for the "Bud Lite" and left the store. He immediately met with his Agency contact. Mr. Strosnider's appearance in court and as evidenced by his photograph taken on May 29, 1998, was such that an ordinarily prudent person would wish to determine that his age was, in fact, over 21, before selling him an alcoholic beverage. Mr. Strosnider testified that Mr. Goor might have asked him if he had an "ID," but he was certain that Mr. Goor did not ask to see his "ID." Mr. Strosnider had his driver's license with his correct birth date with him, but since he was not asked to present it, he did not provide any identification to Mr. Goor. Leon County Sheriff's Deputy Vernon Willis, who was dressed in plain clothes and present in the store, witnessed Mr. Strosnider's purchase of a can labeled "beer" but did not hear any request for identification. Mr. Goor did not remember asking for identification. He did not recognize Mr. Strosnider in court and denied any sale to Mr. Strosnider. He clearly testified that he would not sell alcohol to someone who appeared under thirty years of age if he or she said they had identification without checking that identification. However, with some vacillation, he also stated that his standard operating procedure is to ask for identification, and if the customer reaches for identification, he does not need to read it, but if a customer makes any excuse about not having identification with him or her, Mr. Goor refuses to sell. He finally said that if he sees the identification and the customer is under 21 years of age, he does not sell alcoholic beverages to him. Upon the totality of the evidence and the respective candor and demeanor of the witnesses, I find that the sale of beer to a minor under the age of 21 occurred without any misleading by the minor.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order suspending Respondent's alcoholic beverage license number 47- 02960, series 2-APS, for seven days, and imposing a civil penalty in the amount of $1,000. DONE AND ENTERED this 8th day of January, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1999. COPIES FURNISHED: Barry Kling, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 J. Joseph Hughes, Esquire 1017-A Thomasville Road Tallahassee, Florida 32303 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0700 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0700
The Issue By Notice to Show Cause filed December 19, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the alcoholic beverage license number 60-0883 issued to James R. Rogers, trading as Ray's Tavern. As grounds therefor it is alleged that Rogers, in order to secure a license to sell alcoholic beverages, made false written statements to the agents of Respondent in violation of 537.06 and 561.29 F.S. One witness was called by Petitioner and four exhibits were admitted into evidence.
Findings Of Fact On December 21, 1977, notice of the hearing scheduled to commence on January 12, 1978 at 1457 N. Military Trail, West Palm Beach, Florida was served on Respondent by a beverage agent of Petitioner. (Exhibit 1) In answer to question 13 on the application for Transfer of Alcoholic Beverage License, which asked "Has a license covering the place described in this application or any other place in which any of' the above named persons were at the time interested ever been revoked by the Director?" Respondent answered "No". (Exhibit 2). By Order of the Director of the Division of Beverages dated September 30, 1955 (Exhibit 3) the alcoholic beverage license issued to James R. Rogers, Curley's Tavern, aka Ray's Tavern was revoked for maintaining gambling paraphernalia and permitting gambling on the licensed premises.
Findings Of Fact At all times material hereto, the Respondent was the holder of a valid alcoholic beverage License No. 58-1090, Series 2APS. Respondent is a corporation which owns and operates several convenience stores in the Orlando, Florida area. On February 19, 1983, David Aaron Morgan purchased twelve cans of Budweiser beer at the Respondent's "Pore Jack's store located at 2233 Goldenrod Road, in Orlando, Florida. The purchase was made from a Mr. Claude P. Gillenwater, a clerk and employee at the store. Mr. Morgan had purchased beer from Mr. Gillenwater on at least three (3) prior occasions. At the time of his first purchase of beer from Gillenwater, David Morgan was required to show identification. He showed Mr. Gillenwater a restricted driver's license on which the year of birth appeared to be 1963. Mr. Morgan's date of birth is July 1, 1965. On February 19, 1983, Mr. Gillenwater did not check Mr. Morgan's identification. Mr. Morgan had never informed Mr. Gillenwater that he was underage. He knew Mr. Gillenwater would not serve him beer if he knew he was underage. The information on the restricted license was unclear because the license had been partially mutilated in the washing machine in the Morgan home. David Morgan is in the eleventh grade at Colonial High School. He is 5'8" tall and weighs approximately 160-170 pounds. He wears a mustache and has for over a year. After purchasing the beer, David Morgan left the store and walked to a car in the parking lot where two friends were waiting in a car. Mr. Morgan was observed leaving the store with the beer by Beverage Officers Homer Kenneth Rigsby and Claude E. Cruz. The beverage officers followed Mr. Morgan and his friends as they drove away from the store and stopped them a short distance away. Mr. Morgan was placed under arrest and taken to his home, where his parents were informed of the purchase of beer. It was then verified by a driver's license produced by Mr. Morgan's mother that he was, in fact, not of legal age to purchase alcoholic beverages. Prior to the February 19, 1983, incident, Mr. Gillenwater had been an employee with Respondent for six (6) years. He worked different shifts on an as need basis and the Respondent had never received any complaints regarding the performance of his duties. At the time of his initial employment, Mr. Gillenwater received training and instruction regarding his duties and specifically his responsibilities in assuring compliance with the beverage laws. After his initial training , Mr. Gillenwater was required to work under the supervision of the manager of the store or an experienced cashier until he became familiar enough with the policies and procedures of the company. All employees, and specifically Mr. Gillenwater, were instructed in checking identifications and in the Respondent's strict policy against sales of alcoholic beverages to minors. Mr. Gillenwater was fired by Respondent as a result of this incident. The store in question had a sign posted informing customers that they must be 19 years of age to purchase alcoholic beverages and that a Florida driver's license would be required as identification. (See Respondent's Exhibit 1.) There was also a sign reflecting the date prior to which a customer had to have been born in order to be able to purchase alcoholic beverages. Respondent's employees were instructed to require a driver's license as identification each time a purchase of alcoholic beverages was made by anyone who appeared under 30 years of age. They were required to do this until they became familiar with the particular individual and recognized him on sight as a person who had previously provided proper identification. There was no evidence that Respondent had had any previous violations at the store involved or at any of its other stores. During most of the hours the store is open, a manager or assistant manager is on duty supervising the cashiers. Respondent had no notice or information that any of its employees were failing to follow its procedures regarding the requirement for proper identification.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent be found not guilty of the violation charged in the Notice to Show Cause and that the charge be dismissed. DONE and ENTERED this 28th day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1983. COPIES FURNISHED: Aldo Icardi, Esquire Post Office Box 879 Winter Park, Florida 32790 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Executive Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
