Findings Of Fact At all times material hereto, respondent, Garnetta Yvonne Graham, held alcoholic beverage license number 23-05643, series 2APS, for the premises known as Alexs Grocery, 260 N.W. 71st Street, Miami, Florida. On June 17, 1988, Detective Rickey Mitchell of the Metro Dade Police Department, operating undercover, entered the licensed premises to purchase narcotics. He approached the young lady who was working behind the counter and asked her for a "dime cigarette" and a "ten cent rock" (cocaine), and passed her a ten dollar bill and one dime. The young lady went to a room at the rear of the store, and when she returned told Detective Mitchell that she did not have any "ten cent rocks" but only "five cent rocks." When Detective Mitchell told her that he would accept two "five cent rocks," the young lady returned to the room at the rear of the store and upon her return delivered two plastic baggies to Detective Mitchell. The contents of the baggies were subsequently analyzed and proved positive for cocaine. The subject transaction was done openly, and with no attempt to conceal its occurrence from other persons on the premises. Respondent was not, however, present, and there was no proof that she had any actual knowledge that narcotics were sold or possessed on the licensed premises. In an apparently unrelated incident, respondent was charged by an information filed with the Circuit Court of Dade County, Florida, with having unlawfully and feloniously possessed cocaine on July 24, 1988, in violation of Section 893.13, Florida Statutes, a third degree felony. 2/ On October 31, 1988, following a plea of nolo contendere, a final judgment was entered finding respondent guilty as charged.
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 revoking alcoholic beverage license number 23-05643 held by respondent, Garnetta Yvonne Graham d/b/a Alexs Grocery. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of May 1989. WILLIAM J. KENDRICK 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 16th day of May, 1989.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: At all times material to the instant case, Respondent has held alcoholic beverage license number 16-07413, authorizing him to sell alcoholic beverages on the premises of Pic A Pac (hereinafter also referred to as the "Store"). Respondent was the owner of Pic A Pac until February of 1994, when he sold the Store. Pic A Pac is a "drive-through" convenience store located at 3390 West Davie Boulevard in Fort Lauderdale, Florida. It has two "drive through" windows at which motorists are able to purchase items without leaving their vehicles. On the evening of June 12, 1992, John Raymond drove up to one of these windows in his red, four-door, 1987 Ford Escort and asked Respondent, who was manning the window, for two bottles of Jack Daniels Lynchburg Lemonade, a "wine cooler" product that is marketed as an alcoholic beverage. Raymond was born on September 25, 1974, and thus was only 17 years of age on June 12, 1994. Notwithstanding that he had shoulder length hair and was wearing a nose ring and an earring, Raymond's appearance that evening was not such that an ordinarily prudent person would have believed him to be 21 years of age or older. 2/ Moreover, Raymond neither said nor did anything to give Respondent reason to believe that he was not under 21 years of age. He did not show Respondent, nor did Respondent ask him to produce, any identification. Nonetheless, Respondent sold to Raymond the two bottles of Jack Daniels Lynchburg Lemonade that Raymond had requested. He did not give Raymond a receipt. After Raymond paid him, Respondent put these alcoholic beverages in a brown paper bag and handed the bag to Raymond. 3/ He did not give Raymond a receipt. Raymond took the bag and placed it on the disengaged emergency brake between the driver's and front passenger seat. The latter was occupied by Respondent's companion, Jason Campbell, who like Raymond, appeared to be well under 21 years of age. Raymond then drove off. 4/ The transaction between Respondent and Raymond was observed, through binoculars, by Albert Heinermann, a special agent with the Department, who, along with two other Department special agents, was on surveillance in the area. Heinermann was in a vehicle parked approximately 40 to 50 yards from the Store. When Heinermann saw Raymond drive off, he followed after him in his vehicle and pulled him over less than a block from the Store. A search of the vehicle revealed the paper bag containing the two bottles of Jack Daniels Lynchburg Lemonade that Raymond had purchased from Respondent. The bottles were unopened. Heinermann confiscated the alcoholic beverages and arrested Raymond and Campbell. One of the other special agents working with Heinermann that evening, Mike Fraher, went to the Store and arrested Respondent. Criminal charges were filed against Respondent. After the conclusion of the criminal case, the two bottles of Jack Daniels Lynchburg Lemonade that Raymond had purchased from Respondent and that Heinermann had confiscated were destroyed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order dismissing the charge in the Notice to Show Cause that Respondent unlawfully possessed fireworks on his licensed premises, finding Respondent guilty of the charge in the Notice to Show Cause that he unlawfully sold alcoholic beverages on his licensed premises to a person under 21 years of age, and penalizing Respondent for such unlawful conduct by suspending his alcoholic beverage license for a period of seven days and fining him $1,000.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1994. STUART M. LERNER 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 June, 1994.
The Issue The issue is whether the City of Gainesville ("City") properly issued an Underage Prohibition Order to Petitioner, Spannk, pursuant to Section 4-53, Gainesville Code of Ordinances.
Findings Of Fact The City is a municipal corporation organized under the laws of the State of Florida. In 2009, the City adopted Chapter 4, Article III of the Gainesville Code of Ordinances, titled "Underage Prohibition in Alcoholic Beverage Establishments," referenced herein as the "Ordinance." Spannk is an alcoholic beverage establishment as defined in section 4-51 of the Ordinance and is located within the city limits of the City. Spannk's address is 15 Southwest 2nd Street, Gainesville, Florida. Section 4-51 of the Ordinance defines "underage drinking incident" as follows: Underage drinking incident means any physical arrest or notice to appear (NTA) issued for possession or consumption of an alcoholic beverage by a person under the age of 21 which results in an adjudication of guilt, finding of guilt with adjudication withheld, waiver of right to contest the violation, plea of no contest including, but not limited to, payment of fine or civil penalty, or entering into an agreement for deferred prosecution. Section 4-51 of the Ordinance defines "underage prohibition order" as "an order issued by the city manager or designee which prohibits an alcoholic beverage establishment as herein defined from admitting patrons under the age of 21 into such establishment during specified times." Section 4-53 of the Ordinance provides that an alcoholic beverage establishment will be issued an underage prohibition order if a certain number of underage drinking incidents have occurred at the establishment during a given calendar quarter. For alcoholic beverage establishments with an aggregate occupancy load of fewer than 201 persons, the number of underage drinking incidents triggering a prohibition order is five or more in a quarter. For establishments with an aggregate occupancy load of more than 201, the number is ten or more in a quarter. The parties have made the following stipulations of fact, which are hereby accepted: The parties stipulate that the Occupancy Load for Spannk is greater than 201 persons, thereby requiring a showing of ten (10) or more underage drinking incidents. Spannk stipulates that based upon the certified copies of the Notices to Appear and individual court dispositions, including Deferred Prosecution Agreements and/or Judgments and Sentence to be offered by the Respondent, that twelve (12) "underage drinking incidents" as defined in section 4- 51, Code of Ordinances, did occur in Spannk during the 4th quarter of 2012. Spannk was served with an Underage Prohibition Order on February 21, 2013, which was entered by Russ Blackburn, City Manager, on February 12, 2013, in accordance with the procedures set forth in section 4- 53, Gainesville Code of Ordinances. The City followed all of the procedural requirements set forth in section 4-53, Gainesville Code of Ordinances. Danny Robinson has been the owner and operator of Spannk since it opened in 2008. In order to eliminate the occurrence of underage drinking incidents, Spannk has instituted the following policies and procedures: Maintains a strict identification policy, which includes: Requesting identification from every customer entering Spannk, in the form of a driver's license, ID card from the DMV, passport, or military ID. Requesting a second form of identification when an out-of-state license is presented. Questioning patrons who appear younger than 21 or who raise suspicion about their birthdays, addresses, and Zodiac signs. Maintains a strict wristband policy, which includes: Using blue wristbands from Domino's pizza to indicate that patrons are at least 21 years old. Using yellow wristbands to indicate that patrons are under the age of 21, or alternatively not giving wristbands to underage patrons and ensuring that the staff knows "No band = no drink." Ensuring that, when door staff places wristbands on entering patrons, such bands are tight enough so that they cannot be easily removed. Maintains a strict entry/re-entry policy, which includes: Questioning patrons entering Spannk who already possess wristbands, and ensuring that they are the wristbands used by Spannk. Prohibiting any patron from bringing into Spannk any type of cup, bottle, or can and requiring all outside drinks to be consumed prior to entering Spannk. Prohibiting under-age patrons who have left Spannk from re-entering the premises. Checking any large purse brought into Spannk by any patron, and prohibiting backpacks from being brought inside Spannk. Provides comprehensive training to all Spannk staff, which includes: Gainesville Police Department Responsible Vender Programs. On-the-job training of new employees by older, more experienced staff. Consistently monitors Spannk premises to prevent underage drinking by: Requiring staff to "roam" the indoor premises to ensure that patrons with alcoholic beverages are wearing wristbands. Requiring staff to check for signs of patrons tampering with or removing wristbands. Requiring staff to periodically check Spannk bathrooms to ensure that underage patrons are not consuming alcohol. Maintains a strict removal policy in the rare event that a patron fails to comply with Spannk policies or engages in underage drinking by: Removing any person of age who gives a drink to an underage patron, and removing the underage patron. Removing any patron who has snuck an outside beverage into Spannk. Ensures diligence and effective communication among staff members while patrons are on the premises by: Requiring front and back-door staff to communicate with each other to ensure that they are aware of the occupancy number. Requiring a staff member who leaves his assigned position to use the restroom during his/her shift to communicate this to the rest of the staff. Prohibiting staff from visiting with friends during work hours. Asking staff to communicate to police if any problems with patrons arise during work hours. On February 21, 2013, the City served Spannk with an Underage Prohibition Order (the "Order"). The Order, dated February 12, 2013, was based on 11 underage drinking incidents that occurred at Spannk during the fourth quarter of 2012. Subsequent to the issuance of the Order, an additional underage drinking incident arose. Spannk was given timely notice of this additional incident on May 7, 2013, and it became part of this case. In its exhibits, the City included documentation for six underage drinking incidents at Spannk other than those to which the parties stipulated. Five of those six incidents occurred outside of the fourth quarter of 2012 and are therefore irrelevant to establishing a violation of section 4-53 of the Ordinance. The sixth additional incident has not been considered because the City did not establish that Spannk was given sufficient notice of the City's intended reliance on it. The stipulated exhibits demonstrated that the City secured deferred prosecutions in 10 of the 12 arrests that GPD officers made for underage drinking incidents at Spannk during the fourth quarter of 2012. One of the arrests resulted in a pre-trial intervention agreement because a post-arrest search of the defendant’s purse revealed that she was in possession of a controlled substance. The twelfth arrest resulted in a plea of nolo contendere and the court’s withholding adjudication and placing the defendant on six months’ probation. Of the 12 arrests made in Spannk during the fourth quarter of 2012, five were instances in which the underage patron gained entry to the bar by presenting false identification. Upon successfully presenting the false ID to the doorman, the patron would be given a blue "over 21" wristband that allowed the purchase of alcoholic beverages in Spannk. Persons under 21 were allowed into the bar, given a yellow “under 21” wristband, and not served alcoholic beverages. Three of the five instances of false ID involved the presentation of valid IDs that belonged to other persons who were over the age of 21. In one of those three instances, the suspect presented the doorman with his older brother’s ID. None of the arrest reports indicates whether or not the arresting GPD officer believed the photo on the ID resembled the suspect. No other evidence was presented as to whether the suspects resembled the photos on the IDs they presented to the Spannk doorman. In two of the five instances of false ID, the underage patrons presented the doorman with forged IDs that indicated they were over 21 and obtained blue wristbands. Neither of the arrest reports expressly states that the suspect appeared to be under 21, but the fact that the officer saw cause to investigate allows for the inference that the suspects did not appear to be of legal drinking age. In each of these five instances, the suspect had been given a blue wristband by the doorman. The arresting officer observed each of the five in possession of an alcoholic beverage. Three of the five told the arresting officer that they had bought drinks from the bar. One of the suspects gave the arresting officer no indication of how she got the alcoholic beverage she was holding. One of the forged ID suspects told the arresting officer that someone else bought the drink he was holding, but that he had earlier bought drinks for his friends because he was wearing a blue wristband and they were not. One of the 12 arrests made in Spannk during the fourth quarter of 2012 involved a patron who told the arresting officer that she had shown the doorman her real ID, which indicated she had just turned 20, but was given a blue wristband anyway. This patron told the arresting officer that she had bought her drink at the bar, and that she had smuggled a bottle of vodka into the bar. Two of the 12 arrests involved underage patrons who were wearing yellow wristbands but were seen holding alcoholic beverages. One of these patrons told the arresting officer that he entered the bar using his real ID, and that his underage friend had handed him the drink when he saw the officer approaching. The second patron who was wearing a yellow wristband and holding a beer told the arresting officer that she had entered the bar using her own ID and had smuggled the beer into the bar in her purse. The remaining four arrests involved idiosyncratic details. One patron told the arresting officer that she worked at Beef O’Brady’s, which used wristbands similar to those used by Spannk, and that she brought a blue wristband into the bar with her and put it on after obtaining admission to Spannk using her own ID and receiving a yellow wristband. She purchased an alcoholic beverage at the bar in Spannk. Another patron told the arresting officer that she used her own ID to get into the bar and received a yellow wristband. She went into the bathroom and found a green wristband. She put it on and was able to purchase a drink at the bar despite the fact that Spannk does not use green wristbands. One of the patrons told the arresting officer she didn’t know how the blue band made it to her wrist and did not know whether the beverage she was holding had alcohol in it. The arrest report does not expressly state the officer’s findings as to the alcoholic content of the beverage. Finally, a GPD officer saw a patron who was wearing a blue wristband and holding a drink but appeared to be under 21. The patron refused to provide identification to the officer, who arrested her. At the police station, the patron was found to be in possession of a controlled substance (Adderall). This was the arrest that resulted in a pre-trial intervention agreement. This was also the only arrest in which the arresting officer expressly stated that the suspect appeared to be younger than 21; however, as stated above, the officers’ investigations of the various patrons permit the inference that the officers did not believe that the patrons looked to be of drinking age. The arrest reports indicate a variety of suspicious behaviors cited by the arresting officers as grounds for suspicion. In some cases, the patron placed the drink on the bar or on a table when he or she saw the GPD officer approaching. In two cases, the patron handed the drink to a friend. Three patrons simply dropped their drinks when they saw the officer. Two of the patrons attempted to conceal their drinks from the officers. None of the arrest reports states that the GPD officer observed an underage person obtaining an alcoholic beverage from an employee of Spannk. There was no indication of how long any of the underage persons had been in possession of the alcoholic beverages. There was no evidence that any employee of Spannk knew that underage patrons were drinking alcohol and failed to act on that knowledge. According to the arrest reports, six of the twelve patrons who were arrested told the arresting officers that they had purchased drinks at the bar. This number included four persons who had obtained blue wristbands under false pretenses, one who brought her own blue wristband into the bar, and one who somehow purchased a drink while wearing a green wristband. The owner of Spannk, Danny Robinson, filed a witness affidavit that stated as follows: I have been in the bar business for 16 years in Gainesville and before that I have worked in the industry in Washington, D.C., Portland, Oregon and St. Thomas for a total of 27 years. It’s pretty safe to say I have extensive experience. A partner and I started Speakeasy in 1997. I worked as the bartender and trained staff. We would attend GPD training classes provided to spot fake IDs and deal with intoxicated people. We would also attend the Fire Safety courses put on by the Fire Marshall. These are the years of training we would pass on to our employees in the capacity of the Door Staff. The responsible vendor class for bartending. Teaching everyone the rules and correct procedures for working in the bar business and what we expected of them representing our establishment. I only hire door staff with experience and a positive attitude with people-— generally older. I do not allow students to work the door. I feel like there is too much temptation to let fellow students in to drink underage. My staff consists of ex-military, firefighters, professionals with day jobs. For example, two hold jobs with the government. One works for TSA and the second one for the VA. These men are all responsible, mature people that I feel very good about having at the front checking ID’s and roaming throughout the establishment looking for infractions. We employ a strict door policy at both Spannk and Speakeasy to avoid any trouble. Only accepting valid driver’s licenses, DMV ID card, military ID and passports. We do not accept foreign ID’s and foreign passports. We don’t know enough about them to spot a fake. I have trained my employees to question people if the picture doesn’t look right and thoroughly examine the ID presented to them. If any questions pop up about it they quiz the person and ask for a second form of ID. We have collected quite a few fake ID’s and real ones not belonging to the person using it. In the past Lt. John Parrish from ABT has stopped by and collected many of them. Create a safer environment for people. We had that open communication with the downtown unit for years. The last year or longer the faces have changed and the communication has been very limited. If someone has been arrested with fake ID or passing a drink back and forth between an underage and a person of age, we do not know what the offense is and without this communication we can’t educate our staff to be on the lookout even more than they already are for these actions. We patrol inside of the club checking for correct bands and are always on the lookout for kids trying to share a drink. If underage drinkers are caught doing so they are removed immediately from the premises and if the person of age provides someone with a drink they are both removed. We show that offender to the front door people so they can’t come back in and wristbands removed. Fake ID’s are becoming increasingly more complex with the age of computers these days. But we still manage to catch them. I honestly feel we do a very good job at keeping the underage people from drinking. I am at the bars working every night and pass my years of experience on to all my employees on what to look for. We have caught kids sneaking by getting their friends drinks. We, just like the police on the street, have an obligation to look out for people committing crimes inside the bar. But people will break these laws even knowing the consequences. We cannot [be] everywhere at all times, but we do cover the space and roam throughout all night looking out for people drinking underage. Paul John Zurich, Spannk’s security manager, does the hiring and firing of all security personnel and has attended multiple GPD responsible vendor educational programs. In his affidavit, Mr. Zurich testified that in doubtful situations, Spannk requires patrons to produce two forms of ID. The doormen check the IDs for marks indicating they are fakes: the ID has no hologram; the ID bends and shows wrinkles; or the dates on the ID “don’t add up.” If a patron’s age seems questionable, the security person will ask the patron to state his Zodiac sign, or his address, or the height given on the ID. The doorman will also ask the patron to provide a signature to compare to the one on the ID card. Mr. Zurich testified that he employs a spotter inside the bar to check for illegal activity, and he requires all staff persons to take turns roaming the premises to observe the activity of the patrons. Sean O’Brien works as a doorman at Spannk on Saturday nights. Mr. O’Brien’s full-time job is with the Transportation Security Administration (“TSA”) at Gainesville Regional Airport. In his witness affidavit, Mr. O’Brien testified that the TSA has specifically trained him in methods of checking for false or fraudulent IDs. Mr. O’Brien stated that he denies entry to persons when he concludes they are presenting false identification, and he denies entry to any person who does not present identification regardless of that person’s apparent age. He removes underage persons who are caught in the bar with alcoholic beverages. Mr. O’Brien affirmed that employees are constantly scanning the bar looking for underage persons who are sneaking drinks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Underage Prohibition Order issued to Spannk be vacated. DONE AND ENTERED this 27th day of August, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2013.
The Issue This case concerns the issue of whether Respondents' beverage license should be suspended or revoked or otherwise disciplined for sale of alcoholic beverages to a minor. At the formal hearing, the Petitioner called as witnesses Ervin A. Hooper, Patricia Perkins, Christine Ellis, Paul C. Davis, and John Sokol. Petitioner offered and had admitted into evidence one exhibit. Respondent Richard N. Jiosne testified on behalf of Respondents and Respondents also called John Hanks as a witness. Respondents offered and had admitted two exhibits. Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with the findings and conclusions in this order, they were rejected as being not supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact At all times relevant to these proceedings, the Respondents Richard N. and Ann N. Jiosne were the holders of beverage license No. 39-186, Series 2APS. The license is issued to a drive-through beverage establishment located in Brandon, Florida, and known as the Beverage Castle. The licensed premise is a drive-through facility which sells beer, along with other grocery items and sundries. The Beverage Castle is operated by Mr. and Mrs. Jiosne, along with their son and an employee named John Hanks. Late in the afternoon or early evening of July 22, 1983, Patricia Perkins and Christine Ellis drove into the Beverage Castle for the purpose of buying beer. They drove in and stopped and a young boy that appeared to be between 12 and 14 years old came to the car and asked what they wanted. The driver, Patricia Perkins, told him that they wanted a six pack of Michelob beer and he immediately went to a cooler and removed a six pack of Michelob beer and handed it to an older gentleman. The older gentleman then handed the beer to Patricia Perkins and collected her money for the beer. At no time was Patricia Perkins asked for identification. She had not purchased beer at this establishment previously. The young boy was Ritchie Jiosne, the son of Mr. and Mrs. Jiosne, the owners. The older gentleman was John Hanks, the evening manager of the Beverage Castle. On July 22, 1983, Patricia Perkins was 16 years old and her date of birth is December 30, 1966. The passenger in the automobile, Christine Ellis, at the time of the purchase was 17 years old and her date of birth is December 28, 1965. Prior to Patricia Perkins and Christine Ellis entering the Beverage Castle, a deputy of the Hillsborough County Sheriff's Department had had the licensed premises under surveillance. He had observed several cars drive through with individuals who appeared to be young purchasing beer without being required to show identification. The officer also observed the purchase made by Patricia Perkins and Christine Ellis and observed no identification being shown by Patricia Perkins to either of the individuals working at the Beverage Castle that evening. The owners have a policy against selling alcoholic beverages to minors. There is a sign posted next to the register which states: LOOK WE ABSOLUTELY DO NOT, WILL NOT, AND REFUSE TO SERVE ANYONE!, WHO IS ASKED AND DOES NOT HAVE PROPER I.D. HAVE YOUR CARD READY. The employees have been instructed to not serve alcoholic beverages to minors and to check identification. The Beverage Castle has a reputation within the high school students of Brandon, Florida, as a place where minors can buy beer. A prior violation was brought against the Respondents' license within the past year for sale of alcoholic beverages to a minor. That case resulted in recommended dismissal by the Hearing Officer and the Director of the Division of alcoholic Beverages and Tobacco adopted that recommendation and dismissed the case.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered finding the Respondents guilty of the charge as set forth above and imposing a civil penalty of $150.00. DONE and ORDERED this 8th day of June 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 8th day of June 1984. COPIES FURNISHED: Louisa Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. Patrick McElroy, Esquire Suite 200 - Rutland Bank Building 1499 Gulf to Bay Boulevard Clearwater, Florida 33515 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues are as follows: (a) whether Respondent violated Sections 562.11(1) (a) and 561.29 (1) (a), Florida Statutes,1 by selling an alcoholic beverage to Petitioner's undercover investigative aide on November 17, 2006; and (b) if so, what penalty, if any, should be imposed.
Findings Of Fact Respondent holds License No. 16-17678, Series 2 APS. The license authorizes Respondent to sell packaged beer and wine at the licensed premises, which is located at 2088-90 North, University Drive, Sunrise, Florida. Mr. Danastor is the owner of Triunfo Food Market, a relatively small store. He has been licensed to sell at that store for approximately two years. Mr. Danastor has a personal and business rule to ask for identification before selling alcohol. On December 7, 2007, Petitioner performed an undercover random compliance check of Respondent's store while checking 15 other locations to see if the various stores were selling alcoholic beverages to underage patrons. Investigative Aide #0057, acted as Petitioner's underage operative/investigative aide on December 7, 2007. The Investigative Aide #0057, who was born on March 28, 1988, was an 18-year-old female, at the time of the incident. Investigative Aide #0057 entered Triunfo Food Market, Inc., walked straight to the beer cooler and took out a six-pack of Guiness Stout beer. She then walked to the register to purchase the beer. No other customers were in the store at the time. Mr. Danastor assisted Investigative Aide #0057 with her purchase of beer. The aide placed the six-pack of beer on the counter and handed Mr. Danastor the money to pay for it. Mr. Danastor accepted the money, selling the aide the beer. Mr. Danastor did not ask the aide's age or check her identification. Mr. Danastor placed the beer in the bag and gave it to the aide. After the purchase, the Investigative Aide exited the store and gave the six-pack of beer to Petitioner's agent, who had witnessed the transaction in the store from outside. Petitioner's agents entered the store and spoke with Mr. Danastor. The agents informed Mr. Danastor of the underage sale and provided him a Notice to Appear. Mr. Danastor told the agents, "I am sorry. I didn't know the purchase was alcohol."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding Respondent to have committed one violation of Subsection 562.11(1)(a), Florida Statutes, and imposing an administrative penalty of a seven-day suspension of Respondent's license and a $1,000.00 fine. DONE AND ENTERED this 2nd day of April, 2008, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 2nd day of April, 2008.
Findings Of Fact Respondent holds alcoholic beverage license no. 39-651, Series 4-COP, which applies to its business known as Library Lounge, located at 10924 Nebraska Avenue, Tampa, Florida. Respondent was so licensed at all times relevant to this proceeding. Tampa Police Department Detective Robert Ulriksen was in the licensed premises in an undercover capacity during November and December, 1980. On November 30, he purchased three grams of cocaine from the dancer-employee Lila Colvert. The purchase was made openly and involved at least one other person who gave Colvert the packet which was later identified as cocaine. Ulriksen paid Colvert $25 for the packet. Tests performed by the Florida Department of Law Enforcement Crime Laboratory (FDLE) estab1ished that the substance purchased by Ulriksen was, in fact, cocaine. Ulriksen purchased three purported Quaalude tablets from the dancer- employee Barbara Ann Smith for ten dollars during a visit to the licensed premises on December 2, 1980. Tests performed by FDLE established that the tablets were Quaaludes (methaqualone) Ulriksen again visited the licensed premises on December 5, 1980. On this occasion he purchased three tablets from the dancer-employee Lila Colvert, which she represented as Quaaludes. FDLE tests established that these tablets were Quaaludes. On December 7, 1980, Ulriksen was again in the licensed premises. On that occasion he purchased four tablets, that were later determined to be quaaludes by FDLE. He purchased these tablets for $12 from the dancer-employee Barbara Ann Smith. Ulriksen visited the licensed premises on December 9, 1980, and purchased four tablets which were later determined by FDLE to be Quaaludes. Ulriksen purchased these tablets from the dancer-employee Brenda Sue Parr for $15. On December 12, 1980, Ulriksen was in the licensed premises and discussed a purchase of quaaludes with the dancer-employee Tammy Yates. She took Ulriksen to the dancers' dressing room where she removed five Quaaludes from her purse. Ulriksen paid her $15 for these tablets, which were determined to be Quaaludes by FDLE. The dressing room transaction was observed by the manager, Gaskins, who told Ulriksen to leave. The testimony of FDLE personnel and Tampa Police Department employees who secured the substances purchased by Ulriksen established that this evidence was properly controlled throughout the investigation. There was no indication whatsoever of tampering or other improper handling of the substances. In mitigation of these charges, Respondent established that it has cooperated with the Tampa Police Department in the investigation of its employees and third persons who were involved in the drug trafficking. Subsequent to the arrest of these employees, Respondent adopted preemployment screening procedures and currently has no female entertainers employed in the licensed premises.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of all charges contained in the Notice to Show Cause/Administrative Complaint and suspend Respondent's alcoholic beverage license no. 39-651 for a period of thirty days. DONE and ENTERED this 19th day of July, 1982 at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1982.
The Issue Whether the Respondent committed the offense alleged in the Administrative Complaint dated August 14, 2012, and, if so, what penalties, if any, should be imposed.
Findings Of Fact PTL Associates, Inc., d/b/a 7 Eleven Store No. 32599A (PTL), is a convenience store located at 4401 Colonial Boulevard, Fort Myers, Florida 33912. Lucia D'Costa is the sole shareholder of PTL. Since October 12, 2011, and at all times material to this case, the Respondent has been licensed by the Petitioner to sell alcoholic beverages under license number BEV 4604710, Series 2APS. According to a document titled "Record of Inspection-- Official Notice," on July 19, 2012, an employee of the Respondent sold an alcoholic beverage to an underage individual after checking the individual's identification. The document advised the Respondent that a follow-up compliance check would take place within the subsequent 12 weeks. The Petitioner took no disciplinary action against the Respondent based on the July 19, 2012, compliance check. The Respondent has not been the subject of any prior disciplinary proceeding related to the license referenced herein. On August 2, 2012, the Petitioner conducted an undercover compliance check as a follow-up to a compliance check done on July 19, 2012, to determine whether the Respondent was selling alcoholic beverages to underage individuals. The compliance check was performed by two of the Petitioner's agents, Jennifer Nash and David Foraker, with the assistance of a 16- year-old female identified as Investigative Aide FT0205 (IA). On August 2, the IA entered the store accompanied by Agent Nash, while Agent Foraker remained in the vehicle outside the store. Ms. D'Costa was present in the store, behind the counter and operating multiple store sales registers. Two employees were also present, occupied with various cleaning tasks. The IA walked to the beverage cooler and withdrew a 16 ounce Coors Light, carried it to the counter area, and stood in line to pay for the beer. Ms. D'Costa took the beer from the IA, scanned the beer into the sales register, and completed the transaction. Ms. D'Costa did not ask the IA to produce any form of identification to verify the IA's age. While the transaction occurred, Agent Nash observed the AI and Ms. D'Costa, initially from inside the store, and then from outside while looking through large windows on the storefront. Although while in the store Agent Nash spoke to Ms. D'Costa to ask for driving directions, Agent Nash did not interfere with the sale of beer to the IA. There is no evidence that Agent Nash prompted Ms. D'Costa to sell the beer to the IA, or that she interfered in the transaction in any way. Some, but not all, of the Respondent's cash registers have software to prompt a register operator to verify a customer's age during the sale of an alcoholic beverage. When Ms. D'Costa sold the beer to the IA, she used a register that did not prompt the sales clerk to verify the customer's age. Ms. D'Costa testified that she does not usually operate the sales registers and that the clerks are usually responsible for the counter operation. She testified that, at the time of the compliance check on August 2, 2012, the two employees present were cleaning the store in anticipation of a monthly inspection, and, therefore, Ms. D'Costa was working alone at the sales registers. The inspection referenced by Ms. D'Costa is a routine monthly inspection conducted by corporate representatives at a time unknown to the licensee until the representatives arrive. It is reasonable to presume, given the nature of the inspection, that store cleaning would be an ongoing obligation of a licensee. The testimony fails to suggest that a licensee is exempt from compliance with laws prohibiting underage alcohol sales when employees are busy. After completing the purchase, the IA left the store and delivered the beer to Agent Foraker. The Petitioner's agents then went into the store to notify Ms. D'Costa that the transaction had taken place and to deliver to her a "Record of Inspection--Official Notice" and a "Notice to Appear." Ms. D'Costa testified at the hearing that she believed the IA to be at least 30 years of age on August 2, 2012. The IA participated in seven undercover compliance checks on August 2, 2012. The Respondent was the only store that did not check the IA's identification during a compliance check. Ms. D'Costa also testified that the franchise agreement could be breached by a suspension of the alcoholic beverage license. The franchise agreement was not offered into evidence at the hearing. The Petitioner has a written policy of not utilizing children or other relatives of the Petitioner's employees as IAs. At the time the compliance check was conducted on August 2, 2012, the Petitioner was apparently unaware that the IA was related to an employee of the Petitioner. After the Petitioner learned of the relationship, the IA was not again utilized in making compliance checks. The evidence fails to establish that the relationship between the IA and an employee of the Petitioner prompted Ms. D'Costa to sell the beer to the IA without checking whether the IA was of legal age to purchase alcohol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order suspending the license referenced herein for a period of seven days and imposing a fine of $1,000 against the Respondent. DONE AND ENTERED this 27th day of March, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2013. COPIES FURNISHED: Andrew R. Fier, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 Timothy Joseph Perry, Esquire Oertel, Fernandez, Bryant and Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Allen Douglas, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1020
