The Issue The primary issues for determination are whether Brother J. Inc., d/b/a A.J.’s Sports (Respondent) violated Section 561.29(1)(a), Florida Statutes; and secondarily, if Respondent committed such a violation, what penalty should be imposed?
Findings Of Fact Petitioner is the agency vested with general regulatory authority over the alcoholic beverage industry within the state, including the administration of the laws and rules relating to the sale of alcoholic beverages. Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued license number 47-02607, Series 4-COP by Petitioner. That license allows Respondent to make sales for consumption on premises of liquor, wine, and beer at his establishment located in Tallahassee, Florida. Events at issue in this proceeding revolve around a fraternity/sorority party held at Respondent’s establishment on the evening of March 30/April 1, 2005. Members of the Phi Kappa Psi fraternity and the Delta Nu Zeta sorority decided that they would host a “construction” theme party. To facilitate the party, the social chairman of Phi Kappa Psi contacted Respondent to make arrangements. Respondent’s establishment has several large areas on its ground floor and a single, 1,800 square foot room on the second floor. Respondent agreed to reserve its upstairs room for the Phi Kappa Psi/Delta Nu Zeta party, to waive its cover charge for party patrons, and to make “dollar wells, dollar beers” (i.e. discounted prices on certain alcoholic beverages) available to party participants for a fee of $300.00. On the night in question, most of the participants met at the Phi Kappa Psi house before going out for the evening. They gathered around 10:00 p.m. and socialized. Some people were getting their “construction” costumes together; others were “pre- partying” –-drinking before going out to minimize the size of the bar bill when they go out later. The majority of the people at the frat house at that time were drinking. At some point around 10:30 or 11:00 p.m., the party moved from the Phi Kappa Psi house to Respondent’s establishment, with party members leaving in groups of three or four to drive from the fraternity house to Respondent’s establishment. It was estimated that 15 or so sorority members and 15 to 30 fraternity brothers attended the party, and that somewhere between a third and a-half of those people were not of legal drinking age. When they arrived at Respondent’s establishment, the sorority and fraternity party makers used a side entrance set up for them by Respondent for use in getting to the party. A doorman was posted at the side entrance that checked the age of each of the patrons. He would place a “Tybex®” wristband on those persons who were over the age of 21 and would mark the hand of those under 21 with an indelible marker. Once inside, party members would go upstairs, where there was a bar with a bartender, a disk jockey, and a dance floor. The party continued on until around 2:00 a.m. on the morning of April 1, 2005, at which time the bar closed and the patrons left. During the course of the evening, 244 alcoholic beverages were served at the upstairs bar at Respondent’s facility. No evidence was presented that established with any degree of accuracy how many fraternity and sorority members actually were at the party and how many were of legal drinking age. The evidence of party attendance provided at hearing varied widely and was in each instance an estimate or a guess. Numerous persons who were not members of Phi Kappa Psi or Delta Nu Zeta were in attendance. There is no accurate estimate of how many legal drinkers were at the party or how many drinks each legal patron may have had. The Underage Drinkers Shane Donnor was observed drinking at the frat house that night. He did not, however, appear to be intoxicated when he left the frat house. He had a wristband indicating that he was over 21, which allowed him to drink at Respondent’s establishment, even though he was not of legal age. It is unknown how he obtained his wristband. Donnor was observed to have a glass in his hand while at Respondent’s establishment, but no one could confirm that he was drinking alcohol. While at Respondent’s establishment, various witnesses described him as appearing under the effects of alcohol and thought he appeared quite intoxicated. By 2:30 a.m. on April 1, Donnor had a blood alcohol level of 0.27. This corresponds to at least 10 drinks and probably more. It is an extremely high level of intoxication, which could result in a coma or even alcohol toxicity in some persons. He was quite drunk and had been so for some time. Stephanie Reed was carded upon entering Respondent’s establishment, as was her boyfriend and all the others in her party. She had one or two drinks, but she didn’t buy them herself. One of the fraternity brothers purchased her drinks for her. Reed testified at one point that she did not receive a wristband when she entered the establishment (signifying legal drinking age); later, she testified that she did due to the intervention of some unknown man who told the doorman to give her a bracelet. Reed’s testimony on this point is inconsistent and cannot be credited. Christopher Lowe was carded as he entered Respondent’s establishment. He received marks on the back of his hand indicating that he was underage. Although he was marked as being underage, Lowe was able to purchase two drinks from the bartender. He ordered the drinks; did nothing to conceal the underage marks on his hand; was served; and left money on the bar. Tania Vasquez was carded upon entering Respondent’s establishment and was marked as being underage. She did not buy any drinks while at the party, but was given an alcoholic beverage by a friend that she consumed while on the premises. Elizabeth McKean, and everyone who entered with her, were carded when they arrived at the party. McKean was marked as being underage. She did not buy any drinks for herself, but was given a shot of tequila by someone else. She drank the shot quickly to avoid detection by Respondent’s staff. David Moser had a roommate who manufactured fake i.d. cards. When he entered Respondent’s establishment, he was carded and presented a false drivers license that made it appear that he was over the age of 21. He was marked as though he was over the legal drinking age and was able to buy and consume drinks at the bar, which he did. Lee Habern had several sips of a friend’s drink that was “snuck” to him. Prevention Of Underage Drinking It is well recognized that underage persons will seek to obtain alcoholic beverages at bars. This action by underage youths results in a “cat and mouse” game whereby the bar will change its tactics in trying to prevent underage drinking and the underage drinkers will change their methods of trying to obtain drinks. Respondent tries to combat underage drinking by creating a culture of compliance. This starts with the initial hiring of employees by Respondent. Respondent’s policy is that no underage drinking will be tolerated. This policy is stated in the Employee’s Handbook. Every employee is given a copy of the handbook upon becoming employed and is required to sign an acknowledgement that he or she received it. The policy is reiterated in informal training at every staff meeting. Every new employee at Respondent’s establishment is required to go through formal training with regard to liquor laws, the effect of alcohol on the human body, dealing with customers who have had too much to drink, and related topics. These courses are known as “PAR”, “TIPS”, and “Safe Staff” and are offered by the Florida Restaurant Association and Anheiser-Busch. Respondent has also offered training provided by agents of Petitioner. These formal training programs are offered continuously to employees, and at least one of the programs is offered three times each year. The initial formal training is accomplished within 30 days of the employee being hired. Records are maintained by Respondent as to who receives what training, and when it is provided. Respondent has a policy that everyone who is served alcohol is to have his or her age checked. When the bar is not busy, this is accomplished by having the waitress check the patron’s I.D. When the bar is busier, a doorman is posted at the entrance to check the patron’s I.D. If the patron is over age 21, he or she is given a wristband; if under age 21, an indelible mark is placed on the back of the hand. Since Respondent has experienced persons copying their “over 21” designation, it is changed on a nightly basis. Fake identification cards, if detected, are confiscated. On busier nights, Respondent might confiscate 20 to 30 of such fake identifications. On the night in question, the doorman confiscated five altered cards. Respondent also has a floor manager on duty at all times that the bar is open. The floor manager will circulate throughout the establishment to make sure that all of the policies and procedures, including the prevention of underage drinking, are being carried out. On the night in question, the floor manager, Bo Crusoe, is documented to have worked and in the nominal course of events would have checked the upstairs area of the premises several times. On busy nights, Respondent will hire one or more off- duty City of Tallahassee police officers to serve as security at the bar. The officers work in their police uniforms. These officers serve first and foremost as high visibility deterrents to unlawful activity. Their mere presence serves to minimize underage drinking. Respondent regularly has off-duty law enforcement on the premises. Respondent also has a security consultant, Officer John Beemon, who is a Tallahassee Police officer. He evaluates the need for additional security and communicates those needs to the owners. When he becomes aware of a new wrinkle in underage persons obtaining alcohol, he works with Respondent to prevent the practice. He assists the doormen in identifying fraudulent I.D.s. Respondent has always implemented whatever recommendations Beemon makes to them. Generally, the security measures used by Respondent have proven effective. From time to time, Petitioner will try a “sting operation” at Respondent’s establishment by sending a minor into Respondent’s bar to see if they are able to purchase alcohol. On every such “sting operation” Petitioner’s decoy was identified and stopped at the front door and was not allowed to purchase alcoholic beverages. Carrie Bruce is Petitioner’s special agent for the Tallahassee area. She is familiar with most Tallahassee alcoholic establishments and her testimony establishes that Respondent’s establishment is not considered a “problem bar” by Petitioner and is considered to be better than other area bars in preventing underage drinking. To the best of the owner’s knowledge and Beemon’s knowledge, no one has ever knowingly served a drink to a minor at Respondent’s establishment. Further, Respondent has never previously been charged with serving alcohol to minors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
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 Respondent Paul N. Fjell is a 45-year-old graduate of Eastern Illinois University. In 1970, he was employed as a teacher by Petitioner, the School Board of Dade County, Florida. He subsequently was placed on continuing contract and continued in his capacity as a teacher for Petitioner until December 5, 1990, when he was suspended from his employment and this termination proceeding was commenced. Respondent has a long history of alcohol abuse. Since 1984, Petitioner has encouraged Respondent to avail himself of the services offered by Petitioner's Employee Assistance Program (hereinafter "EAP"). Respondent has been referred on a number of occasions to the EAP by his supervisors since his alcohol problem appeared to be a fitness-related problem. On April 25, 1986, Respondent was admitted to the Addiction Treatment Program at Mount Sinai Medical Center, where he remained hospitalized for 28 days. His admitting diagnosis was poly-drug dependency and alcoholism. Respondent had been referred to that program by Petitioner's EAP. During the 1988-1989 school year Respondent again came to the attention of the Office of Professional Standards when he was removed from his position at Horace Mann Middle School because of absences and a resulting referral to EAP. Respondent was next assigned to two Cope Centers (North and South). He was assigned to work one-half day at each Center as a Work Experience Coordinator. Respondent's duties were to teach a class of young, pregnant students, locate part-time jobs for them, and monitor them at their places of employment. A Work Experience Coordinator occupies a highly visible position since the Coordinator must visit businesses and other organizations in the community in order to locate jobs for students. After approximately two months, Respondent was removed from his position at both Centers because of his non- performance and because of complaints from students, staff, faculty, and a School Board member that Respondent had the odor of alcohol on his breath at work. Respondent was next assigned to the Office of Vocational, Adult, Community, and Career Education (hereinafter "OVACCE"). The offices of OVACCE are located in the School Board Administration Building; consequently, Respondent had little contact with students or the public. While he was assigned there, Respondent was repeatedly absent, did not produce any work that could be used, and his supervisor detected an alcohol odor about Respondent. As a result, prior to the end of the 1989-1990 school year, Respondent was removed from OVACCE and relocated to the Dorsey Skill Center for a few months to complete the school year. In August, 1990, Respondent was arrested and charged with driving under the influence, leaving the scene of an accident, and violation of driving restrictions. On August 15, 1990, a conference-for-the-record was held in Petitioner's Office of Professional Standards (hereinafter "OPS"). At that time, Respondent's arrest record and employment history were reviewed, and he was given specific directives as to the procedures he must thereafter follow regarding absences. Respondent was then placed on alternate assignment pending court disposition of his DUI arrest. Respondent was temporarily placed in the Physical Education Department at the School Board Administration Building at the end of August, 1990. His duties were essentially clerical in nature: stuffing envelopes, collating documents, distributing mail, and re-arranging the mail boxes. Within five weeks, his supervisor requested that OPS remove Respondent from that work assignment. His supervisor complained that Respondent reported late for work, left early, took long breaks, and was frequently absent. He also complained that other workers in the area were becoming demoralized because Respondent did not carry his share of the work. On one occasion Respondent's supervisor thought he smelled alcohol on Respondent's breath. Several times during this period Respondent was observed taking his shoes and socks off and elevating his feet to relieve swollen joints. Even after being instructed to not remove his shoes and socks and elevate his feet while at work, Respondent did so again and was observed by the Deputy Superintendent. Respondent was next placed in Petitioner's Security Investigative Unit (hereinafter "SIU"), where he performed clerical chores. On November 2, 1990, Respondent reported to his work location in an impaired state. This was discovered when other employees at the work site noted that Respondent was talking to himself, his clothing was disheveled, his speech was slurred, he had bloodshot eyes which he was trying to conceal by wearing dark glasses, he kept repeating himself, the content of his speech was nonsensical, and he had a strong odor of alcohol on his breath. Later that morning, a blood specimen was drawn from Respondent, which upon analysis showed an ethanol content of at least 50 milligrams per deciliter. During October, 1990, it had been determined that further psychological evaluation of Respondent was medically indicated, and he was directed by OPS to submit to further evaluation. An appointment was scheduled for him by OPS. Respondent, however, rescheduled that appointment several times and never did submit for further evaluation. Respondent disregarded directives given to him by OPS on August 15, 1990, regarding absence and leave procedures. Between November 5 and 14, 1990, Respondent was absent from work and failed to contact OPS regarding his absences in accordance with the directives previously given to him. Respondent understood that he was to contact OPS. The reason that Respondent did not contact OPS when he failed to report to work between November 5 and 14 was as a result of his drinking and not as a result of any lack of understanding of the directives which he had been given. Petitioner's EAP has had 140 contacts directly with Respondent or with his medical providers in an attempt to assist Respondent in dealing with his fitness-related alcoholism. Respondent is generally non-compliant with the recommendations made to him by professionals for dealing with his alcohol problem. Recommendations for long-term residential treatment have been ignored. Although Respondent has voluntarily admitted himself for treatment in hospital mental health units, his stays there are short and do not appear to be assisting him in dealing with his long-term alcohol problem. Although Respondent is currently attending daily AA meetings, his attendance may be related as much to his pending traffic charges and this termination proceeding as to any commitment on his part to finally resolve his alcohol problem. When Respondent was a patient at Mount Sinai, once he was detoxified, he exhibited no personality disorder or psychiatric condition. His problem was alcoholism and poly-drug dependency; his behavior was secondary to that problem. Based upon protocols established by the American Society of Addiction Medicine, a physician cannot, with certainty, diagnose a mental condition while the patient is still under the influence of alcohol or other mind-altering drugs. Although Respondent has been receiving treatment from a psychiatrist on an irregular basis over the last few years, that physician's opinion that Respondent suffers from a manic depressive disorder requiring the administration of anti-depressant medication is rejected. That physician has not had the benefit of seeing Respondent on a regular basis. It is uncertain whether that physician has had the benefit of treating Respondent in a detoxified state since approximately 1985. Although it is believed that Respondent has been in a detoxified state during certain time periods since 1985, there is no assurance that the recovery program Respondent has created for himself is working. Respondent received acceptable annual evaluations for the 1988-1989 and 1989-1990 school years and was recommended for reemployment at the conclusion of each of those school years. Each year's annual evaluation was based upon one classroom observation only. Although fitness-related issues such as active alcoholism appear to be included within Category VII, Professional Responsibilities, on Petitioner's annual evaluation form, principals completing annual evaluations of teachers are prohibited from considering fitness-related issues. By union contract, only the Office of Professional Standards can deal with issues relating to a teacher's fitness for duty. Over the years, Respondent's drinking problem has become known to more and more students, staff, medical professionals, and members of the community. His failure to ultimately resolve his alcohol problem has achieved some degree of notoriety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondent's suspension as of December 5, 1990, was proper and dismissing Respondent from his employment as a teacher for the School Board of Dade County, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May, 1991. LINDA M. RIGOT 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 May, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-10 13-15, and 17 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 11, 12, and 16 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-3, 5-7, and 9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4, 8, and 11 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 10 and 12-14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. transmitting transcript, together with Petitioner's exhibits numbered 1-14 and Respondent's exhibits numbered 1-4. COPIES FURNISHED: Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 Southwest Third Avenue Suite One Miami, Florida 33129 James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Honorable Betty Castor, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The Division of Beverage seeks to assess a civil penalty against, or to suspend or revoke beverage license 23-748 issued to Respondent setting forth the following two reasons as alleged in the administrative complaint: 1/ That on June 2, 1975, investigation revealed that Respondent failed to disclose an interest of Daniel Guthry, in its sworn application dated February 4, 1971, contrary to Section 561.17, Florida Statutes. That, on or about June 16, 1975, investigation revealed that Respondent conspired to violate the beverage laws by permitting a person found not qualified, to engage in the business of selling or dealing in any way in alcoholic beverages, contrary to Florida Statutes, 562.23 to wit, Florida Statutes 561.17. Based upon my observation of the witnesses and their demeanor while testifying, I make the following:
Findings Of Fact Florence Fitzgerald is the mother of Daniel Guthry. Mr. Guthry is a graduate of the Cornell Hotel and Restaurant School and a graduate of the Miami Law School. While a student at the University of Miami Law School, Guthry opened a small restaurant known as the Ale House which was a college pub. It was successful until sometime in 1965 when a civil law suit was filed and the Ale House was closed. The contention of the Petitioner is that Guthry owned 100 percent of Specialty Taverns of America, Inc., and that he attempted to transfer the license from the Ale House to the Stable which was a restaurant located on 79th Street which was then owned by a Virginia Mariani. 2/ Petitioner alleges that Guthry attempted to effectuate this transfer while he had been previously denied a license based on a prior beverage law violation during his operation of the Ale House. Petitioner introduced checks indicating that Guthry had drawn checks to pay for salaries, beer and wine and other day to day operations of The Depot. Daniel Guthry was also the owner of Collegiate Marketing and Petitioner contends that Collegiate Marketing and Specialty Taverns, Inc., are interrelated corporations and through this interrelationship, bills are paid for The Depot. Evidence was also introduced indicating that Guthry paid bills for both Collegiate Marketing and The Depot including phone bills and other personal items such as parking tickets, haircuts, medical and dental expenditures, property taxes, repair bills, stocks and other incidental items. The contention is further made that Guthry holds himself out as being the owner of The Depot and that while he operated the Stable, he wanted a 4-COP license which is a license which allows the licensee to sell mixed drinks, beer and wine whereas he then owned a 2-COP license which only permitted him to sell beer and wine. A check was also introduced by Petitioner indicating that Guthry had drawn a check for $1,000 in payment to his mother, Mrs. Fitzgerald. Finally, the contention is made that by these acts, Guthry has free control of The Depot for all receivables and that there is absolutely no control by Fitzgerald over the licensed premises. It is further alleged that Guthry advised several persons including suppliers that he was the owner of The Depot. At the conclusion of the Petitioner's case, Respondent moved for a dismissal based on an allegation that Petitioner had advanced no evidence indicating that there was a conspiracy nor was there any evidence of any intent or interest on the part of Daniel Guthry. The undersigned denied the motion for dismissal inasmuch as there was, at least in the undersigned's opinion, sufficient evidence to indicate that a prima facie case had been established. Richard H. W. Maloy, an attorney practicing since 1953 in Dade County, Florida, indicated that he has represented Florence Fitzgerald in sundry matters since 1968 and he also represented Daniel Guthry during the late 1960's. Guthry approached Maloy sometime in the early `70's about forming a corporation to purchase the license on 79th Street (The Stable). Maloy checked with the Secretary of State to see if the corporate name, Specialty Taverns, Inc., was available and when he determined that it was, articles were drawn up showing that Guthry owned 80 percent of the shares while Maloy owned 10 percent and another undisclosed person owned the remaining 10 percent. The corporation was formed on February 4, 1970. According to Maloy, Guthry wanted to make application immediately with the Division of Beverage to effectuate a transfer and personal data forms were submitted on Guthry, Mr. Hanson and Mr. Maloy to the Division of Beverage. On February 5, 1970, a signed application was submitted to the Division of Beverage and on the following day a health inspection was made of the premises. Maloy was advised on February 11, that the stock was to be transferred to Fitzgerald and not Guthry. It should be noted that at that point, the license transfer application had been filed. This advice came to Maloy via a telephone call from Mrs. Fitzgerald who advised that she had tendered all the money and was liable for all the other obligations for the premises in question. At that time, all stock rights were given to Mrs. Fitzgerald and while Guthry remained as president, he owned no stock. He testified that he was unaware that Guthry had previously made application to the Division of Beverage and had been rejected when the above referenced application was submitted. According to the evidence, that application was filed on or about February 20, 1970 and Guthry listed himself as being the owner of the Stable. A report was rendered to the Division of Beverage on April 3, 1970, indicating that Guthry had violated the beverage laws while he operated the Ale House in the late 1960's. Maloy received a certified copy of Guthry's beverage violation at the Ale House on April 17, 1970. The Division of Beverage denied his application on May 12. Mr. Kimbrow advised Maloy that since Mrs. Fitzgerald owned all the stock etc., that she should submit her application for the license transfer and this was done on February 4, 1971. On May 22, 1970, Guthry resigned as president of Specialty Taverns of America, Inc. On April 14, 1971, the transfer application was approved and it was transferred from Mrs. Morioni, the prior owner to Mrs. Fitzgerald. On October 1, 1971, the license fee of $1,750 was paid. The license was held in escrow until February 11, 1972. During the period February to May of 1972, plans were made by Fitzgerald to purchase the restaurant and during that period, all ideas regarding its operation were formulated by Guthry. Maloy testified that he frequents the restaurant on a regular basis and he has witnessed both Daniel Guthry and Mrs. Fitzgerald present and he is personally aware that Mrs. Fitzgerald is the sole owner of the Depot's stock. He also testified that Guthry exercises managerial authority. Mrs. Fitzgerald testified that she is very active in the business and she hires and fires employees. She maintained records of checks and reconciles all cancelled checks. She owns the company outright and purchased it in part by obligating herself for a $50,000 mortgage from the First National Bank of South Miami. She testified that her son Daniel Guthry, only manages the restaurant. She testified that while he manages the restaurant, she maintains absolute control over the entire operation and that Guthry received no benefit from the appreciation of the business. Guthry testified that the Depot was opened on February 8, 1974. He testified that he can only hire and fire employees with his mother's consent and that he never invested any money in the Depot. Arnold Hampton, a certified public accountant, for the Depot, testified that the corporation has had a net loss carried forward at least since 1974, and that Fitzgerald advanced loans to the corporation on an as needed basis. He testified that checks were used to repay the loans that she had advanced, which according to him were the checks received into evidence. Barry Tamlon, an employee at the Depot and a prior employee of the Ale House since 1966, testified that he was the former manager of the Ale House. He testified that Fitzgerald manages the Depot on a continuous basis and that Guthry does so incidentally, during his extensive travels on an intermittent basis. Mrs. Fitzgerald testified that her son only derives prestige and fulfillment from operating a successful restaurant but that he receives no economic compensation other than incidental expenses. In conclusion she testified that he received no profits from the corporation and has no obligations to repay any of its bills. Based on the above facts, the undersigned finds that there is insufficient evidence to establish that Mrs. Florence Fitzgerald and her son Daniel Guthry engaged in a conspiracy to violate the beverage laws as alleged or that Respondent failed to disclose the interest of Daniel Guthry. It is clear from evidence introduced that Guthry has no ownership or other interest in the licensed premises. Mrs. Fitzgerald whose testimony as corroborated by Maloy lends support for Respondent's claim that Mrs. Fitzgerald is the sole owner of approximately eighty percent (80 percent) of the Depot's stock. While the evidence indicates that Guthry manages the Depot apparently without much restriction from Mrs. Fitzgerald, there has been no showing and no claim is made by Petitioner that a person who has previously violated a beverage law is incapable of managing a restaurant that has a beverage license. Based on these findings, I therefore conclude that Petitioner has failed to establish that Respondent has engaged in the conduct as alleged in its administrative complaint. I shall therefore recommend that it be dismissed in its entirety.
Recommendation Based on the above finding and conclusions, I recommend that the complaint filed herein be dismissed in its entirety. DONE and ENTERED this 21st day of September, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Respondent sold alcoholic beverages to a person under the age of 21 in apparent violation of Subsection 562.11(1)(a), Florida Statutes.
Findings Of Fact Based on my observation of the witnesses, their demeanor while testifying and the entire record compiled herein, the following relevant factual findings are made. During times material, Respondent, Rasem Mohammad Awadallah, held license number 63-02202, series 2-APS authorizing the sale of alcoholic beverages at Sam's Big Apple (Sam's) which is situated at 110 Manor Drive, Bartow, Polk County, Florida. Respondent is the owner of Sam's. On February 13, 1992, law enforcement officers from the Bartow Police Department conducted an investigation of businesses, including Respondent's, that were allegedly making sales of alcoholic beverages to persons under the age of 21. The investigation was prompted by several citizen complaints alleging that Respondent and other businesses were selling alcoholic beverages to underaged persons at their licensed premises. On February 13, 1992, Lieutenant James Byrd and Patrolman Michael S. Marcum went to Sam's to investigate the complaints of alcoholic beverage sales to minors. Patrolman Marcum's date of birth is October 24, 1972. As such, he was 19 years of age on February 13, 1992. Lieutenant Byrd instructed Patrolman Marcum to enter Sam's and attempt to purchase alcoholic beverages. He was instructed that if at any time identification was requested of him, he would produce his driver's license which displayed his correct date of birth. Patrolman Marcum was further instructed that if he was asked his age by Respondent or clerks at Sam's, he would truthfully answer. Patrolman Marcum entered Sam's on February 13, 1992, retrieved a six- pack of "Milwaukee's Best Beer" from the cooler and approached the sales counter. Patrolman Marcum purchased the beer from Respondent who made the sale without asking whether he was at least 21 years of age or for identification which would show his age. The sealed cans of beer that Patrolman Marcum purchased from Respondent were clearly marked as alcoholic beverages. Upon exiting the premises, Patrolman Marcum and Lieutenant Byrd rendezvoused with Detective Mike Hamil approximately fifteen minutes thereafter. Patrolman Marcum was provided a physical description of the person from whom he had purchased the beer and that person was later identified as Respondent. At the hearing herein, Patrolman Marcum identified Respondent as the person who sold him the six-pack of beer on February 13, 1992 at Sam's. Respondent was arrested approximately one month after the February 13, 1992 date of sale. He was later tried and convicted of selling an alcoholic beverage to a person under the age of 21. The delay in arresting Respondent was based on the delay in obtaining an arrest warrant for Respondent's arrest and based on ongoing investigations by the Bartow Police Department. Detective Hamil feared that an arrest of Respondent early in the course of the investigation would alert other area vendors that the Bartow police were engaged in an investigation which would possibly dissuade any other licensed vendors predisposed to such violations. Respondent denies having sold alcoholic beverages to any minors on February 13, 1992 to include Patrolman Marcum. However, Respondent admits that he was at Sam's on that date for approximately one hour. It is more likely than not, that Respondent sold alcoholic beverages to a minor, Patrolman Marcum, on February 13, 1992 as alleged in the notice to show cause filed herein. Respondent has not been the subject of prior disciplinary action by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a Final Order finding that Respondent violated Section 562.11(1)(a), Florida Statutes and that he be ordered to pay a civil penalty of $500.00 to the Division within thirty days of the entry of the Department's Final Order and that Respondent's license number 63-02202, series 2-APS, be suspended for a period of ten days. 1/ DONE AND ENTERED this 14th day of June, 1993, in Tallahassee, Florida. 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 14th day of June, 1993.
The Issue The issues are as follows: (a) whether Respondent violated Sections 562.11(1)(a) and 561.29(1)(a), Florida Statutes (2003), by selling an alcoholic beverage to Petitioner's undercover investigative aide on January 15, 2004; and (b) if so, what penalty, if any, should be imposed.
Findings Of Fact Respondent holds License No. BEV2601975, Series 1-APS. The license authorizes Respondent to sell beer and wine at the licensed premises, which is located at 1762 Sheridan Street, Jacksonville, Florida. Respondent is the sole owner of Express Food Store (the store), a relatively small convenience store. He has been licensed to sell beer and wine at the store since 1982. In the approximately 22 years that Respondent has owned and operated the store, he has no knowledge of an incident where he personally sold alcohol to an underage person prior to this case. Respondent has a personal and business rule not to sell alcohol to underaged persons. He usually checks an individual's identification before selling him or her alcohol and tobacco because underage persons frequently attempt to purchase these products from the store. He trains his employees not to sell alcohol to underaged persons. He posted Budweiser and Miller Lite signs in the store that say "We I.D." On January 15, 2004, Petitioner performed undercover compliance checks of licensed establishments, which were placed on a list by random sample. The store was on the list to be checked. At approximately 6:30 p.m., Respondent was at the store working behind the checkout counter in the capacity of owner and cashier. The store was relatively busy with several customers. Respondent was waiting on the customers, and in between customers, he was training a new employee, who was having some difficulty operating the lottery machine located near the cash register. Respondent was eager to keep the customers moving as fast as he could move them. Jerry Horky acted as Petitioner's underage operative/investigative aide on January 15, 2004. Mr. Horky, who was born on March 28, 1984, was 19-years-old. Mr. Horky was appropriately groomed and dressed. In other words, he was clean-shaven and not dressed up or down, but was wearing jeans and a shirt with a collar. Petitioner's agents took a picture of Mr. Horky on January 15, 2004. The copy of Mr. Horky's picture that Respondent offered in evidence is of a very poor quality. However, at the time of the hearing, Mr. Horky did not have the appearance of someone over the age of 21. To the contrary, he was average in stature and decidedly youthful in appearance. Mr. Horky, Agent Raymon Arguelles, and Agent Elizabeth Anno drove to the store and parked in front so that they could see inside the store. Petitioner's agents checked to make sure that Mr. Horky had his driver's license showing his correct age and that he did not have any false identification. The agents then instructed Mr. Horky to attempt to buy an alcoholic beverage from the store using funds provided by Petitioner. The agents specifically told Mr. Horky to answer truthfully if anyone inquired about his age. Following the instructions of Petitioner's agents, Mr. Horky entered the store, walked to the beer cooler, retrieved one 12-ounce Budweiser beer, and walked to the counter to wait his turn in line behind at least one customer. Respondent took care of the customer in front of Mr. Horky. Respondent then looked at Mr. Horky and asked if he could help him. Without saying a word, Mr. Horky placed the can of beer on the counter and handed Respondent the money to pay for it. Respondent accepted the money, selling Mr. Horky the beer. Respondent did not ask Mr. Horky's age or check his identification. Mr. Horky exited the store and gave the can of beer to Petitioner's agents, who had witnessed the transaction from their parked car. Petitioner's agents waited until all the customers left the store. Then they entered the store and spoke with Respondent. As soon as they identified themselves, Respondent asked if Mr. Horky was underaged. When the agents responded affirmatively, Respondent stated that he did not check Mr. Horky's identification because he thought Mr. Horky looked old enough. Agent Anno told Respondent how surprised she was that he had sold Mr. Horky a beer because: (a) She remembered him from the time that she first began working for Petitioner in 1992 when one of Respondent's employees was cited on two occasions for selling alcohol to an underaged person; (b) Petitioner had not received a complaint that Respondent was violating the beverage laws; and (c) Petitioner had never cited Respondent for personally violating the beverage laws. Mr. Horky worked for Petitioner as an underage investigative aide from the age of 16 until he reached age 20. During that period of time, Mr. Horky participated in 754 compliance check operations. In 504 of the operations, the licensed establishments refused to sell him alcohol. Approximately 250 licensed establishments sold him alcohol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner enter a final order dismissing the charges against Respondent DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 3rd of November, 2004. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Captain Cynthia C. Britt Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 600 Jacksonville, Florida 32211 Tonia Yazgi, Esquire 3123 Beach Boulevard Jacksonville, Florida 32207 Jack Tuter, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Respondent, Allen McGhee and Latarra Hargarett, d/b/a A Touch of Class, is licensee of a facility located at 208 South Paramore Avenue, Orlando, Florida. The alcoholic beverage license #58-02721, 2COP series, was most recently renewed for the period October 1, 1991 through September 30, 1992. Allen McGhee did not appear at the hearing and is apparently in custody as a result of the activities that are the subject of this license discipline proceeding. Latarra Hargarett, a/k/a/ Gibbs, is the current sole lessee of the premises at 208 South Paramore Avenue. She has also contracted to purchase Allen McGhee's share of A Touch of Class nightclub, and has commenced payment pursuant to the contract. The parties have agreed to resolution of this proceeding as follows: The current license is revoked, and $3,000.00 civil penalty and $1,500.00 investigative costs are imposed. This license discipline is without prejudice to Latarra Gibbs' right to file an application for a beverage license in her own name at the 208 South Paramore Avenue location.
Recommendation Based on the foregoing, it is hereby, recommended that the agency enter its Final Order reflecting the parties' stipulated disposition as stated herein. RECOMMENDED this 31st day of October, 1991, in Tallahassee, Florida. MARY CLARK 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 31st day of October, 1991. COPIES FURNISHED: Nancy Waller, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joerg F. Jaeger, Esquire Katz, Jaeger & Blankner 217 E. Ivanhoe Blvd., North Orlando, FL 32804 Richard W. Scully, Director Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000
Findings Of Fact Aki-San held an alcoholic beverage license which expired October 1, 1977. Only on January 10, 1978, did Aki-San make application for "delinquent renewal" of its license. In the unlicensed interim, one of respondent's truckdrivers continued to deliver Kirin beer to Aki-San. At all pertinent times, respondent was licensed as a distributor of alcoholic beverages. Respondent employs numerous truckdrivers to distribute alcoholic beverages to some 2,000 licensees under the beverage law. Each driver has a route book containing the license number of each of the customers for which he is responsible. The truck drivers have standing instructions to insure, before delivering alcoholic beverages, that the licensees they serve have renewed their licenses for the year. Posted on a bulletin board on respondent's premises, in October of 1977, was a notice reminding the drivers to ascertain whether their customers' licenses had been renewed.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the notice to show cause issued in this case. DONE and ENTERED this 17th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Clifford Distributing Company 990 S.W. 21st Terrace Ft. Lauderdale, Florida Mary Jo M. Gallay Staff Attorney 725 South Bronough Street Tallahassee, Florida 32304
The Issue The issue for consideration in this matter is whether Respondent’s alcoholic beverage license, Series 3-PS, No. 39- 01099, for the premises located at 13508 Florida Avenue, Tampa, should be disciplined because of the matters alleged in the Administrative Action filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner, Division of Alcoholic Beverages and Tobacco, was the state agency in Florida responsible for the licensing of outlets for the retail sales of alcoholic beverages, and for the enforcement of the liquor laws of this state. By stipulation of fact, the parties agreed than on or before August 7, 1996, Benjamin Nenno, a male under the age of 18 at the time, became involved in an investigation of Respondent’s retail sales facility in issue by the Division. On the evening of August 7, 1996, Nenno was briefed and searched by agents of the Division and allowed to carry with him only a certain amount of cash and a driver’s license which clearly showed him to be under 21. He was instructed by the agents to indicate he was only 17 if he were to be asked by a store employee and to produce the driver’s license if it were to be requested. Specifically, he was instructed not to make any misrepresentation of fact in order to get the clerk to make a sale to him. Thereafter, Nenno entered the Respondent’s store number 620, located at 13508 Florida Avenue in Tampa and asked to purchase a bottle of Captain Morgan’s Special Rum, an alcoholic beverage which would be unlawful for him to purchase. When he did so, the Respondent’s clerk, identified as Freddy Posey, asked to see Nenno’s identification and Nenno produced the driver’s license which reflected he was under 21. Posey looked at it but made the sale anyway. The sale was witnessed by Special Agent Randall West who confirmed the facts stated above. When Nenno left the premises he met with Special Agents West and Miller who confiscated the beverage. West then entered the store and issued a notice of Violation as well as a vendor check list to Posey which was to be filled out by him and returned to the Division. The investigation continued on August 13, 1996 when Nenno, again under the control of the Division personnel, was again searched and instructed and sent back into the Respondent’s premises by Agents Hamilton and Fisher to again attempt to purchase a bottle of Captain Morgan’s Special Rum. This time Nenno dealt with James Davison, an employee of the Respondent, who asked Nenno to produce a driver’s license. When Nenno did as he was asked, Davison looked at it but nonetheless made the sale even though the license clearly showed Nenno was under 21. This sale was witnessed by Agent Fisher. In this case, however, after having made the sale, Davison came outside the store after Nenno, but after looking around the parking lot, re-entered the store. The Division agents again issued a Notice of Violation and a checklist which was subsequently returned to the Division filled out. On August 20, 1996, the investigation continued with the Division agents this time using Nicole Finch, a female under age 21, who was instructed and briefed as Nenno had been. She, too, was left with only some cash and her driver’s license which reflected her to be under 21. This time, Finch entered the Respondent’s store Number 621 in the company of Agent West and purchased a 200 ml bottle of Bacardi Rum, an unlawful alcoholic beverage for her to buy, from Steven Wilder, the clerk on duty. Before making the sale, Wilder asked to see Finch’s driver’s license, which she showed to him, but after seeing it, he still made the sale. When she left the store, Ms. Finch met Special Agents West and Fischer who subsequently issued a Notice of violation to the Respondent. When questioned by West, Wilder indicated he had received no training nor was he aware of any training program in place regarding sales to underage persons. Special Agent West, who has been an investigator with the Division for more than 18 years, and who has participated in many beverage investigations such as this, entered the Respondent’s store on August 7, 1996 after Nenno had left. He arrested the clerk, Mr. Posey and issued the Notice of Violation. In the course of the transaction, he questioned Posey about how he was trained regarding the sales of alcohol to minors with specific emphasis on whether Respondent has an ongoing training program and whether there were signs or other notices proscribing the sale of alcohol to minors. In response to these questions, Posey indicated he had received verbal training but no formal classroom or video training and had been given no forms to read and sign regarding this. When West looked for signs relating to the practice of checking patrons’ identification or indicating a policy of “no sales to those under 21”, he could find no signs posted or buttons worn by employees to notify prospective patrons of the company’s practice, though the Florida Beverage law does not require buttons to be worn. West made the same observations when he entered the store after the August 20, 1996 purchase by Finch. On this second occasion, in response to West’s questions about the training given by Respondent, Wilder, the clerk involved in that sale, indicated no training programs were in place. At that time, Mr. West could see no changes that had been made in the premises since he was last there on August 7, 1996. Further, West could not find any indication that the Respondent had posted a qualifying birth date for the purchase of alcoholic beverages. In response, Respondent offered into evidence a copy of a sign which, it claims, is posted on the cash register in each store, which refers to the requirement for a person to be 21 years old, (born before the purchase date in 1975) to purchase alcohol. Mr. West, who went behind the cash register to obtain information from the liquor license, did not see a copy of this sign posted in Respondent’s store on either August 7 or August 20, 1996. The Notice of Violations issued by the Division agents were to put the licensee on notice that a violation had occurred so that the employee cannot keep the information from the license holder. Agent Fisher observed the sale to Nenno which took place on August 13, 1996. When he went into the store after the purchase took place, Fisher asked the sales clerk if he had asked to see Nenno’s identification and he had. Fisher also asked the clerk about training offered by Respondent regarding the checking of identification. This employee, who has worked for the company for approximately 16 years, indicated he had seen at least one video which concerned checking identification and admitted he had been required to sign a certificate that he was aware of the rules. Agent Fisher also looked for signs in the store regarding the Respondent’s policy regarding sales to minors but did not see any. When he participated in the operation there on August 20, 1996, he asked the clerk on duty at that time if he had been trained regarding buyers’ identification and was told that since he had been hired by the company in January 1996 he had worked in the warehouse exclusively and had subsequently worked in the store only two days. He had been given no training at all in customer identification before he started working in the store. When Fisher looked behind the counter for some sort of warning sign, he could find none, nor could he find any in the back near the beer cooler. Mr. Davison worked for the Respondent for approximately 16 years prior to his discharge because of the instant sale to a minor. He had worked as manager of store number 620 for about two years before his firing, and his job was to maintain stock and insure the store was properly manned at all times it was open. He employed two other individuals at the liquor outlet to cover the entire week. Only one person was on duty at a time. On the day he made the sale which caused him to be fired, he was the only person on duty. Periodically, he would receive a document from the company containing the company’s policies which he was to read and sign, but nothing more than that, and even they did not come very often. He claims, and it is found, that he was never told he was to train his employees regarding sales of alcohol to minors. He claims that he was never shown a training video even though he signed the document saying he did. He did that because on the one occasion he asked a manager about it, he was told to sign it and not worry about it. Even though each store had a VCR, the entire training process to which Davison was exposed consisted of the reading and signing of this document which was given to him by Mr. Odorosio, the store manager. None of the training reflected on his personnel records as having been given him was, in fact, not given. Davison claims that when he was hired 16 years ago he was not given any training about sales of alcohol to minors and has never been given any since. However, he admits that each store is furnished a chart reflecting the various endorsements to driver’s licenses which are used. He also noted that his store had one sign relating to lawful alcohol sales, given to him by a beverage salesman, which, about two months before the incident, he put on the front of the counter where the customers could see it. He claims that on the evening the agents came to the store, they did not ask to see it. If they had done so, he would have shown it to them. Davison recognized one of the signs placed in evidence as one he has seen in other of Respondent’s stores. He has never seen the other one. As Davison recalls it, Respondent’s policy is to terminate anyone caught selling alcohol to minors. After the incident of August 7, 1996, Mr. Odorosio advised him to be on the lookout because he felt the Division agents would be back. Davison admits having made the sale to the teenager in question. However, he claims, the individual had just had a birthday which Davison mistakenly believed was the 21st. In fact it was the individual’s 17th birthday. He also claims that in the two years he worked at store 620, he always asked potential underage patrons for identification unless he knew the person. He claims he has always refused to sell alcohol and would not knowingly sell alcohol to minors. In fact, on the night he sold to Nenno, August 13, 1996, when he realized he had sold to a minor, he went outside, he claims, to find Nenno and give him back his money. The four-year difference in age belies Davison’s claim of mistake and that claim is rejected. Mr. Wilder, the assistant manager on the grocery store night shift since January 30, 1996, had worked in the liquor store, temporarily, for only a day and a half at the time of the incident. He was filling in until a new clerk could be brought in from another store. When he received his orientation training in January 1996, he was shown a video and exposed to a group class on paperwork, the handbook of rules and regulations, and the sale of alcohol, after which a test was administered. That was the only time he was shown any video or was involved in any personnel meeting relating to alcohol sales. When he went to work at the liquor store, he was given training only on the operation of the cash register. The liquor store registers do not have the capability to punch in the buyer’s date of birth. However, the day he started in the liquor store, Mr. Odorosio told him to always check a purchaser’s identification and never to sell to anyone under the age of 21. This was the day before he sold the rum to Ms. Finch, and he claims this sale was caused by human error. That very day, he claims, he had make “cheat sheets” which showed the lawful dates for the purchase of tobacco and alcohol, and claims he merely read from the wrong sheet. Officials of the Division have made themselves available to work with retailers of alcoholic beverages to bring them up to the sales standards set for a reasonable industry standard as outlined in the Florida Statutes. The information contained on the alcohol compliance instructional guidelines utilized by Respondent on which clerks and cashiers acknowledge their understanding that violation of those policies may result in termination of their employment is not sufficient orientation from an educator’s standpoint. In the opinion of Agent Miller, the minimum acceptable standards call for training of personnel in alcohol control three times a year, as once a year is not enough. Mr. Miller indicates he has discussed the Respondent’s situation with Mr. Heuermann, the Respondent’s vice-president in charge of personnel training, at Heuermann’s behest on approximately four occasions, and explained his concerns over the violations and what Respondent could do to improve its program. The first discussion took place in June 1996, shortly after an arrest of another Respondent employee and two months before the instant arrests. At that time they discussed what could be done to alert personnel and modify registers to require checking of ID. It was reported at that time that some employees were overriding this; however, the company is in the process of converting all their cash registers to those which require the customer’s birth date be inserted. They were put in grocery stores first and not in the liquor stores because the liquor stores use a different system. As funds for conversion become available the registers in the liquor stores will also be converted. Company trainers also discusse training standards for employees and Respondent’s need to insure that the lowest level of employees, who deal with the public, are properly trained. Though Mr. Miller made several suggestions as to what Respondent could do to improve its educational program, neither he nor any other Division agent was asked to participate in the training. According to Mr. Heuermann, Respondent has over 100 grocery stores and 34 liquor stores and employs approximately 10,000 people, only 1,500 to 2,000 of whom are involved in the sale of alcohol. No one under the age of 18 is hired to work in a liquor store. Company trainers check to insure the age of employees as does the main office. By the same token, the company would not hire anyone as a liquor store manager who had been convicted within the prior five years of a violation of the liquor law, of prostitution, drugs or a felony. The company’s application for employment has a space for listing such an offense and the company completes a background check on its applicants. Respondent contends it has a formal training program for alcohol law compliance. The orientation program for all new employees includes a video tape, a work sheet, and instructional guidelines, all dealing with alcohol compliance, to be signed by all new hires. At training, the trainer goes through the employee handbook, which treats alcohol compliance, sexual harassment, AIDS, ADA, etc., and this training is required of all new employees, both managerial and non-managerial, but it is sketchy at best. Until 1995, such training as existed was centralized but then was made the responsibility of the individual store manager. Sometime thereafter, the training was placed under the human resources directorate and it is again centralized whenever possible, as in the metropolitan areas where employees from several stores easily can be brought together for training. The company also has a formal substance abuse policy under which the use of illegal drugs or alcohol at work is prohibited because of its impact on safety and other workers. When Mr. Heuermann was advised by the store manager of the incident involving Mr. Posey he immediately instructed the manager to fire Posey and sent the information concerning the incident to all his managers for use in training in the individual stores. He also instructed the district managers to reinforce alcohol training in the stores because he wanted to insure this training met all requirements. He called Mr. Miller at the Division to see what could be done and implemented everything Miller suggested. When Heuermann learned of the Davison case he again reviewed the facts and determined to fire Davison as well. He met with the senior vice-president of operations for Respondent who directed that no one but management personnel be put in that store and reemphasized the need for training. Heuermann also went to the store and advised the district manager that his job was in jeopardy if another violation occurred. When the third violation thereafter occurred, Mr. Heuermann called Agent Miller, Mr. Odorisio, Mr. Metcalfe and the corporations CEO. At that time, Miller made some suggestions which included a paycheck reminder which Heuermann implemented with a copy being stapled to every one of the 10,000 paychecks issued that month. Mr. Heuermann noted that after the incident involving Mr. Posey, Agent Miller advised him that Division agents would be back. Heuermann passed that information on to the district and store managers and instructed them to advise their employees to be careful. Jacqueline N. Iglesias, Respondent’s district training coordinator since October 1996’ was previously the orientation director. Employee training for the Respondent’s Hillsborough district, as noted previously herein, is done in group sessions involving between 12 and 25 people, on Mondays, Thursdays and Saturdays for three-hour sessions conducted twice a day on those days. The instruction covers safety, alcohol compliance and employee appearance and standards. With regard to the instruction concerning alcohol compliance, a form containing relevant information is used along with a video presentation and a multiple choice examination on the provisions of the alcohol compliance law which is administered while the video is playing. The video shown covers hours of sale, sales to minors, sales to those already intoxicated and how to handle unruly patrons. The course material advises the employee to call management in a questionable situation. It also covers acceptable and altered identification, what to look for and what to do in a case of suspected alteration. Specifically, employees are advised to refuse a sale to anyone whose identification is suspect, and employees are warned of the consequences, including job loss, if strict compliance with the law and the company’s policies are not followed. This training program has been in effect since August, 1996. Before that time, the training was done by the individual managers who, according to Iglesias, covered the same information. Though this program appears thorough at first blush, in reality it is considerably less than comprehensive and appears to have been minimally effective. An example of this can be seen in the history of Mr. Posey. Mr. Posey went through the company’s training program training when he was first hired. Company records reflect that he missed seven of the questions on the checklist test but, nonetheless, was still hired since performance on the test is not used to disqualify prospective employees. He supposedly was thereafter given supplemental on the job training under an experienced cashier at his employment location. Kevin Sosa has been employed as a full time liquor store clerk at Store 619-620 for more than two years. He identified a decal which, for some time, including in August 1996, was stuck to the check-out counter just in front of the register. Sosa also claimed that there is, in addition, a decal on the beer cooler located in the back of the store, in the back hallway and on the wall near the register which refer in some way to the legal age for purchasing alcohol. With regard to these signs, Special Agent Hamilton, who participated in the operation involving Mr. Davison on August 13, 1996, did not observe any signs in the store as were described by Mr. Sosa even he claims he looked for them. However, he admitted he did not go behind the counter to where the cashier stood to see if any signs were posted there, nor did he specifically look near the beer cooler. Mr. Sosa also has seen the alcohol compliance guidelines which he has been required to sign at least two or three times during the term of his employment and which he has seen more frequently when training others. He has also been exposed several times to the training guidelines which accompany the alcohol video. The last time he saw it was during the summer of 1996 after the incidents in question, but on each occasion nothing more was done than to show the video. After Mr. Posey was caught and after another incident at another company store, but before the incident involving Mr. Davison took place, he and Davison often discussed how easy it was to become complaisant and not check identification properly. Both recognized they had to be careful. They were frustrated and somewhat angry with the Division over these arrests because they felt anyone could make a mistake and fail to check identification. The efforts at control and procedures described as being in place at Respondent’s stores were reiterated in the testimony of Mr. Stickles, second assistant manager at Respondent’s store in issue, who indicated that numerous and repeated efforts are made to train employees in the proper compliance with the alcohol laws and to get out appropriate and necessary information. Included within these measures used are the use of the company’s DBX system by which individual managers can electronically communicate with headquarters and other managers to identify problems and suggested solutions; memoranda on pertinent topics sent through the mail; consistent verbal reminders from management to clerks; provision of extra stickers for registers and elsewhere in the stores; reminders on employee paychecks and, after the first incident, a mandatory repeat viewing of the alcohol control video by all employees. Aside from the above, however, Mr. Stickles could point to little in the way of formal training. Mr. Odorisio, the store manager at the facility in question related his practice of insuring that all new employees are sent to the centralized orientation program conducted by the company. He attends periodic manager meeting at least three times a year after which he briefs his clerks on any relevant material he picked up. After the incident involving Mr. Posey he again briefed the remaining clerks, including Davison and Sosa, repeatedly advising them that the Division agents would be back and to be sure to card all suspicious customers Mr. Montoto, Respondent’s district manager over the store in question, indicated his efforts to insure proper alcohol compliance included, in addition to those previously noted, a requirement that all employees have attended the pre-hiring orientation program; conduct of store manager meetings at least two or three times a year; and specific posting of managers in the stores who were trained in how to handle alcohol compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order imposing an administrative fine of $3,000 against Respondent’s alcoholic beverage license number 39-01099, series 3-PS. DONE and ENTERED this 4th day of March, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Craig E. Behrenfeld. Esquire Barnett, Bolt, Kirk & long 601 Bayshore Boulevard, Suite 700 Tampa, Florida 33606 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Richard Boyd Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact The Respondents, J. F. Walthier III and Andrew Erickson, are the holders of a current valid beverage license, No. 46-00210, Series 2-APS, held in the name of Walthier, J. F. III and Ericks. This license is for a premises located at 4721 Palm Beach Boulevard, Fort Myers, Lee County, Florida. The Respondents conduct their business at this licensed premises under the name Foam and Fizz. This beverage license series entitled the Respondents to sell a class of alcoholic beverage for consumption off the licensed premises. One of the categories of alcoholic beverages allowed for sale under the terms and conditions of the license is beer. The subject beverage license was issued by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. The Petitioner is charged with the licensure and regulation of the several alcoholic beverage license holders within the State of Florida. In pursuit of its function, the Petitioner has brought an Administrative Complaint/Notice to Show Cause against the named Respondents and the terms and conditions of that complaint may be found in the issue statement of this Recommended Order. The facts in this case reveal that between 9:00 p.m. and 10:00 p.m. on January 25, 1980, three young men under the age of eighteen drove to the licensed premises for purposes of purchasing beer. Once the car was parked, Ira J. Frasure and dames Craig McDowell exited the car. On that date, Ira J. Frasure was seventeen years of age and James Craig McDowell was sixteen years of age. They left Frank Edward Gordon in the automobile, where he would remain during the pendency of the other juveniles' activities in the licensed premises. Once in the store, Frasure retrieved a six-pack of Budweizer beer and McDowell picked up several single cans of Budweizer beer. The beer which had been picked up by the juveniles was presented at the checkout counter to Barbara Joyce Walthier, the wife of one of the licensees and an employee in the licensed premises. At that point, Frasure paid Walthier for the beer from money which he had and money which had been given to him by McDowell. The juveniles then left the store. Neither of the juveniles had been asked for any form of identification prior to the sale of the alcoholic beverages, nor had they been asked about their ages, and they did not make any comment concerning their ages. Frasure's date of birth is September 30, 1962, and at the time of the purchase he was approximately six feet one inch tall and had a mustache. Frasure gave testimony in the course of the hearing and appeared to be eighteen years of age or older at that time. Investigative officers who saw Frasure on January 25, 1980, said they felt he appeared to be less than eighteen years of age. McDowell's date of birth is February 9, 1963, and at the time of the hearing he appeared to be less than eighteen years of age, and this comported with the impression of the investigating officers when they saw him on January 25, 1980. At the time Frasure purchased the beer from the clerk, Barbara Joyce Walthier, she was not busy with other customers to the extent that it would hinder her ability to check the appearance of Frasure and McDowell; however, business on the evening in question had been moderate to heavy at times and she does not remember seeing Frasure and McDowell. Barbara Joyce Walthier was working in accordance with a set of instructions from the licensees, in the person of her husband, to the effect that she should always require written identification prior to purchase from those persons who looked like they should be "carded". Moreover, she had been instructed that those persons who have beards are not normally "carded". Other factors to be considered, per instruction she had been given, were to require written identification from those persons who acted suspiciously while in the store, or who parked a great distance away from the store after driving slowly by. In keeping with these instructions, she routinely requires written identification from patrons. Finally, there was a sign in the licensed premises which stated, "Under age don't ask".
Recommendation In view of the fact that this is a single count violation and in view of the physical appearance of Ira J. Frasure at the time of the alcoholic beverage purchase in question, that appearance leading one to believe that he was eighteen years of age or more, it is RECOMMENDED that the Respondents be required to pay a fine in the amount of one hundred fifty dollars ($150.00) in lieu of suspension or revocation and it is FURTHER RECOMMENDED that if this civil penalty is not paid within thirty (30) days of the rendition of the final order, that the Respondents' beverage license be suspended for a period of fifteen (15) days. DONE AND ENTERED this 20th day of May, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee Florida 32301 (904) 488-9675 COPIES FURNISHED: James N. Watson, Esquire Office of General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Allan Parvey, Esquire 2201 Main Street Post Office Box 2366 Fort Myers, Florida 33902
