07-004600 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. Ray`s Market, Inc., D/B/A Ray`s Market Status: Closed Recommended Order on Monday, June 16, 2008.

Summary: Respondent sold alcoholic beverage to an underaged investigative aide. Recommend a $1,000 fine and seven-day suspension of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 07-4600

)

RAY’S MARKET, INC., d/b/a RAY’S MARKET, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

March 25, 2008, by video teleconference between Fort Lauderdale

and Tallahassee, Florida, before Administrative Law Judge Claude

B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Michael J. Wheeler, Esquire

Department of Business and

Professional Regulation

Northwood Centre, Suite 40

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Ibrahim Ghantous, Esquire

420 South Dixie Highway, Suite 2C

Coral Gables, Florida 33146

STATEMENT OF THE ISSUES

The issues are whether Respondent committed the offenses

alleged in the Administrative Action filed by Petitioner against

Respondent on August 7, 2007, and, if so, the penalties, if any,

that should be imposed.

PRELIMINARY STATEMENT

By Administrative Action dated August 7, 2007, Petitioner

charged that on July 18, 2007, Respondent or Respondent’s “. . .

agent(s), officer(s), servant(s), or employee(s), to wit:

Ibrahim Abul-Kahir did unlawfully on your licensed premises

sell, give, serve, or permit to be served . . . ” an alcoholic

beverage to Investigative Aide FL0068. Petitioner alleged that

Florida Statutes (2007) 1

Respondent timely disputed the factual predicate of the

Administrative Action, the matter was referred to DOAH, and this

proceeding followed.

At the formal hearing, Petitioner presented the testimony

of Investigative Aide FL0068 (the IA), Agent Sasha Patrice

Boykin, Agent David Gayle, and Special Agent John Cobban.

Respondent cross-examined each of Petitioner’s witnesses, but

offered no additional witness. Respondent offered eight

sequentially-numbered exhibits, each of which was admitted into

evidence without objection. Respondent’s Exhibit 3 is a bottle

of Seagram’s wine cooler, which will be discussed in the

Findings of Fact section of this Recommended Order. Petitioner

offered no additional exhibits.

The Transcript of the proceeding, consisting of one volume,

was filed April 22, 2008. By Order entered May 6, 2006,

Petitioner’s motion for an extension of time to file proposed

recommended orders was granted, and the parties were given the

deadline of May 20, 2008, to file their proposed recommended

orders. Petitioner filed its Proposed Recommended Order, which

has been duly considered by the undersigned in the preparation

of this Recommended Order. Respondent did not file a proposed

recommended order.

FINDINGS OF FACT

1. At the times relevant to this proceeding Respondent,

Ray’s Market, Inc., d/b/a Ray’s Market was the holder of License

No. 16-1362, Series 2 APS. The license authorizes Respondent to

sell packaged beer and wine at the licensed premises, which is a

convenience store located at 1707 NW 6th Street, Ft. Lauderdale,

Florida 33313 (the licensed premises). At the times relevant to

this proceeding Ibrahim Abdul-Kahir (the owner) was the owner of

the licensee and the manager of the licensed premises.

2. On July 18, 2007, Petitioner’s undercover investigative

team performed a compliance check of the licensed premises while

checking other licensed locations to determine whether the

various stores were selling alcoholic beverages to under-aged

patrons. Petitioner’s investigative team included the IA, Agent

Boykin, Agent Gayle, and Special Agent Cobban.

3. The IA acted as Petitioner’s underage operative on

July 18, 2007. The IA is a female, born November 22, 1989. As

of July 18, 2007, the IA was 17 years of age. At all times

relevant to this proceeding, the IA operated under the direct

supervision of one or more of Petitioner’s agents.

4. The IA was instructed by Petitioner’s agents to attempt

to purchase alcoholic beverages from Respondent. She was

instructed to enter the licensed premises, retrieve an alcoholic

beverage from the cooler, and attempt to purchase the alcoholic

beverage. The IA was instructed to answer truthfully if anyone

in the store asked her age. Petitioner’s agent gave the IA

funds to make the purchase.

5. On July 18, 2007, both Mr. Gayle and Ms. Boykin entered

the licensed premises before the IA entered. This procedure

provided security for the IA while she was inside the licensed

premises and provided corroboration for the events that ensued.

Both Mr. Gayle and Ms. Boykin had unobstructed views of the IA’s

activities within the licensed premises and were able to hear

the conversations described below.

6. At the times relevant to this proceeding, the licensed

premises had two cash registers open. Norma Williams, an

employee of the licensee, was stationed at one cash register and

the owner was stationed at the other. The two cash registers

were located within sufficient proximity so that the owner could

communicate with Ms. Williams and could observe the events

occurring at her register.

7. After Agents Gayle and Boykin were inside the premises

the IA entered the licensed premises, walked straight to the

cooler, and took out a bottle of Seagram wine cooler. Seagram

wine cooler is an alcoholic beverage. The IA then walked to the

cash register at which Ms. Williams was stationed and handed the

wine cooler to Ms. Williams. At that juncture, the owner asked

Ms. Williams whether she had checked the IA’s identification to

verify the IA’s age. Ms. Williams responded to the effect that

she knew the IA because the IA hangs out with her

(Ms. Willliams’) nieces and cousins all the time. Ms. Williams

then stated that she knew that the IA was over 18 years of age.

The owner responded: “Okay. We’ll let them 2 bail you out.”

When the owner made that statement, he knew that the IA was

about to purchase an alcoholic beverage and he knew that his

employee had not verified her age by checking the IA’s

identification.

8. The IA paid Ms. Williams for the wine cooler and left

the licensed premises. Immediately after she left the premises,

the IA dropped the wine cooler, breaking the bottle and spilling

the contents on the sidewalk in front of the licensed premises.

9. Upon instructions from Petitioner’s agent, the IA

immediately re-entered the licensed premises and told the owner

what had happened. The IA asked the owner if she could replace

the broken wine cooler. The owner permitted the IA to do so.

The IA went to the cooler, retrieved a replacement wine cooler,

and left the licensed premises. Respondent’s Exhibit 3 is the

replacement wine cooler. The broken wine cooler was discarded.

10. At no time on July 18, 2007, did Ms. Williams, the

owner, or anyone else acting on behalf of the licensee ask the

IA her age or for identification to verify her age.

11. After the IA obtained the replacement wine cooler and

left the licensed premises, Special Agent Cobban entered the

licensed premises, identified himself as a special agent, and

asked to speak to the owner of the licensed premises. Mr. Abul-

Kahir identified himself as the owner of the licensed premises

and showed Special Agent Cobban on his store’s security system a

re-play of the purchase of the wine by the IA. Mr. Abul-Kahir

told Special Agent Cobban that he told Ms. Williams to check the

IA’s identification. Mr. Abul-Kahir was present at the formal

hearing, but he did not testify. The clear and convincing

evidence presented by Petitioner established that Mr. Abul-Kahir

did not tell Ms. Williams to check the IA’s identification.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

13. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

Co. v. Department of Agriculture and Consumer Services , 550

So.2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge ,

645 So.2d 398 (Fla. 1994). The following statement has been

repeatedly cited in discussions of the clear and convincing

evidence standard:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the evidence

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact the firm belief of (sic)

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.2d

797, 800 (Fla. 4th DCA 1983).

14. Section 562.11(1)(a), Florida Statutes provides as

follows in relevant part:

(1)(a) It is unlawful for any person to

sell, give, serve, or permit to be served

alcoholic beverages to a person under 21

years of age . . .

15. Section 561.29(1)(a), Florida Statutes (2007),

provides:

(1) The division is given full power and

authority to revoke or suspend the license

of any person holding a license under the

Beverage Law, when it is determined or found

by the division upon sufficient cause

appearing of:

(a) Violation by the licensee or his or

her or its agents, officers, servants, or

employees, on the licensed premises, or

elsewhere while in the scope of employment,

of any of the laws of this state or of the

United States . . .

16. In construing Subsection 561.29(1), Florida Statutes,

Florida's appellate courts have consistently held a licensee

liable only for his or her personal misconduct. In Pic N' Save,

supra , at 250, the court stated:

Although the statutory language in section

561.29(1) has since 1957 spoken in terms of

the Division's power to revoke or suspend a

beverage license for violation of the

beverage law committed by a licensee or "its

agents, officers, servants, or employees,"

the courts of this state have consistently

construed and applied this disciplinary

authority only on the basis of personal

misconduct by the licensee. Thus, while an

employee may violate the beverage law in

making illegal sales of alcoholic beverages

to minors, the licensee's culpable

responsibility therefore is measured in

terms of its own intentional wrongdoing or

its negligence and lack of diligence in

training and supervising its employees

regarding illegal sales. This limitation on

the licensee's liability is consistent with

the notion, also long recognized by the

courts of this state, that one's license to

engage in a occupation is not to be taken

away except for misconduct personal to the

license.

17. Petitioner established by clear and convincing

evidence that the owner of the licensed premises observed the

transaction between Ms. Williams and the IA and that he failed

to require his employee to verify the age of the IA. That

failure of the owner established the violation alleged by

Petitioner.

18. The recommendation as to the penalty that follows was

taken from the Petitioner’s Proposed Recommended Order, is

consistent with the penalty guidelines found at Florida

Administrative Code Rule 61A-2.022(11), and is the penalty

imposed by Petitioner in recent final orders for identical

violations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

finding Respondent guilty of one violation of Subsection

562.11(1)(a) Florida Statutes as alleged in the Administrative

Action. It is further recommended that the final order impose

an administrative fine against Respondent in the amount of

$1,000.00 and suspend Respondent’s license for seven consecutive

days.

DONE AND ENTERED this 16th day of June, 2008, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of June, 2008.

ENDNOTES

1./ Unless otherwise indicated, all references are to the 2007

Florida Statutes.

2./ The undersigned construes this to be a reference to Ms.

William's nieces and cousins.

COPIES FURNISHED :

Michael J. Wheeler, Esquire

Department of Business and

Professional Regulation

Northwood Centre, Suite 40

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Ibrahim Ghantous, Esquire

420 South Dixie Highway, Suite 2C

Coral Gables, Florida 33146

Cynthia Hill, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.