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.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF ALCOHOLIC BEVERAGES )

21AND TOBACCO, )

24)

25Petitioner, )

27)

28vs. ) Case No. 07-4600

33)

34RAY’S MARKET, INC., d/b/a RAY’S MARKET, )

41)

42)

43Respondent. )

45)

46RECOMMENDED ORDER

48Pursuant to notice, a hearing was conducted in this case on

59March 25, 2008, by video teleconference between Fort Lauderdale

68and Tallahassee, Florida, before Administrative Law Judge Claude

76B. Arrington of the Division of Administrative Hearings (DOAH).

85APPEARANCES

86For Petitioner: Michael J. Wheeler, Esquire

92Department of Business and

96Professional Regulation

98Northwood Centre, Suite 40

1021940 North Monroe Street

106Tallahassee, Florida 32399-2202

109For Respondent: Ibrahim Ghantous, Esquire

114420 South Dixie Highway, Suite 2C

120Coral Gables, Florida 33146

124STATEMENT OF THE ISSUES

128The issues are whether Respondent committed the offenses

136alleged in the Administrative Action filed by Petitioner against

145Respondent on August 7, 2007, and, if so, the penalties, if any,

157that should be imposed.

161PRELIMINARY STATEMENT

163By Administrative Action dated August 7, 2007, Petitioner

171charged that on July 18, 2007, Respondent or Respondent’s “. . .

183agent(s), officer(s), servant(s), or employee(s), to wit:

190Ibrahim Abul-Kahir did unlawfully on your licensed premises

198sell, give, serve, or permit to be served . . . ” an alcoholic

212beverage to Investigative Aide FL0068. Petitioner alleged that

220Florida Statutes (2007) 1

224Respondent timely disputed the factual predicate of the

232Administrative Action, the matter was referred to DOAH, and this

242proceeding followed.

244At the formal hearing, Petitioner presented the testimony

252of Investigative Aide FL0068 (the IA), Agent Sasha Patrice

261Boykin, Agent David Gayle, and Special Agent John Cobban.

270Respondent cross-examined each of Petitioner’s witnesses, but

277offered no additional witness. Respondent offered eight

284sequentially-numbered exhibits, each of which was admitted into

292evidence without objection. Respondent’s Exhibit 3 is a bottle

301of Seagram’s wine cooler, which will be discussed in the

311Findings of Fact section of this Recommended Order. Petitioner

320offered no additional exhibits.

324The Transcript of the proceeding, consisting of one volume,

333was filed April 22, 2008. By Order entered May 6, 2006,

344Petitioner’s motion for an extension of time to file proposed

354recommended orders was granted, and the parties were given the

364deadline of May 20, 2008, to file their proposed recommended

374orders. Petitioner filed its Proposed Recommended Order, which

382has been duly considered by the undersigned in the preparation

392of this Recommended Order. Respondent did not file a proposed

402recommended order.

404FINDINGS OF FACT

4071. At the times relevant to this proceeding Respondent,

416Ray’s Market, Inc., d/b/a Ray’s Market was the holder of License

427No. 16-1362, Series 2 APS. The license authorizes Respondent to

437sell packaged beer and wine at the licensed premises, which is a

449convenience store located at 1707 NW 6th Street, Ft. Lauderdale,

459Florida 33313 (the licensed premises). At the times relevant to

469this proceeding Ibrahim Abdul-Kahir (the owner) was the owner of

479the licensee and the manager of the licensed premises.

4882. On July 18, 2007, Petitioner’s undercover investigative

496team performed a compliance check of the licensed premises while

506checking other licensed locations to determine whether the

514various stores were selling alcoholic beverages to under-aged

522patrons. Petitioner’s investigative team included the IA, Agent

530Boykin, Agent Gayle, and Special Agent Cobban.

5373. The IA acted as Petitioner’s underage operative on

546July 18, 2007. The IA is a female, born November 22, 1989. As

559of July 18, 2007, the IA was 17 years of age. At all times

573relevant to this proceeding, the IA operated under the direct

583supervision of one or more of Petitioner’s agents.

5914. The IA was instructed by Petitioner’s agents to attempt

601to purchase alcoholic beverages from Respondent. She was

609instructed to enter the licensed premises, retrieve an alcoholic

618beverage from the cooler, and attempt to purchase the alcoholic

628beverage. The IA was instructed to answer truthfully if anyone

638in the store asked her age. Petitioner’s agent gave the IA

649funds to make the purchase.

6545. On July 18, 2007, both Mr. Gayle and Ms. Boykin entered

666the licensed premises before the IA entered. This procedure

675provided security for the IA while she was inside the licensed

686premises and provided corroboration for the events that ensued.

695Both Mr. Gayle and Ms. Boykin had unobstructed views of the IA’s

707activities within the licensed premises and were able to hear

717the conversations described below.

7216. At the times relevant to this proceeding, the licensed

731premises had two cash registers open. Norma Williams, an

740employee of the licensee, was stationed at one cash register and

751the owner was stationed at the other. The two cash registers

762were located within sufficient proximity so that the owner could

772communicate with Ms. Williams and could observe the events

781occurring at her register.

7857. After Agents Gayle and Boykin were inside the premises

795the IA entered the licensed premises, walked straight to the

805cooler, and took out a bottle of Seagram wine cooler. Seagram

816wine cooler is an alcoholic beverage. The IA then walked to the

828cash register at which Ms. Williams was stationed and handed the

839wine cooler to Ms. Williams. At that juncture, the owner asked

850Ms. Williams whether she had checked the IA’s identification to

860verify the IA’s age. Ms. Williams responded to the effect that

871she knew the IA because the IA hangs out with her

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

892then stated that she knew that the IA was over 18 years of age.

906The owner responded: “Okay. We’ll let them 2 bail you out.”

917When the owner made that statement, he knew that the IA was

929about to purchase an alcoholic beverage and he knew that his

940employee had not verified her age by checking the IA’s

950identification.

9518. The IA paid Ms. Williams for the wine cooler and left

963the licensed premises. Immediately after she left the premises,

972the IA dropped the wine cooler, breaking the bottle and spilling

983the contents on the sidewalk in front of the licensed premises.

9949. Upon instructions from Petitioner’s agent, the IA

1002immediately re-entered the licensed premises and told the owner

1011what had happened. The IA asked the owner if she could replace

1023the broken wine cooler. The owner permitted the IA to do so.

1035The IA went to the cooler, retrieved a replacement wine cooler,

1046and left the licensed premises. Respondent’s Exhibit 3 is the

1056replacement wine cooler. The broken wine cooler was discarded.

106510. At no time on July 18, 2007, did Ms. Williams, the

1077owner, or anyone else acting on behalf of the licensee ask the

1089IA her age or for identification to verify her age.

109911. After the IA obtained the replacement wine cooler and

1109left the licensed premises, Special Agent Cobban entered the

1118licensed premises, identified himself as a special agent, and

1127asked to speak to the owner of the licensed premises. Mr. Abul-

1139Kahir identified himself as the owner of the licensed premises

1149and showed Special Agent Cobban on his store’s security system a

1160re-play of the purchase of the wine by the IA. Mr. Abul-Kahir

1172told Special Agent Cobban that he told Ms. Williams to check the

1184IA’s identification. Mr. Abul-Kahir was present at the formal

1193hearing, but he did not testify. The clear and convincing

1203evidence presented by Petitioner established that Mr. Abul-Kahir

1211did not tell Ms. Williams to check the IA’s identification.

1221CONCLUSIONS OF LAW

122412. The Division of Administrative Hearings has

1231jurisdiction over the parties and the subject matter of this

1241proceeding pursuant to Sections 120.569 and 120.57(1), Florida

1249Statutes.

125013. Petitioner has the burden of proving by clear and

1260convincing evidence the allegations against Respondent. See

1267Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

1278Co. v. Department of Agriculture and Consumer Services , 550

1287So.2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge ,

1298645 So.2d 398 (Fla. 1994). The following statement has been

1308repeatedly cited in discussions of the clear and convincing

1317evidence standard:

1319Clear and convincing evidence requires that

1325the evidence must be found to be credible;

1333the facts to which the witnesses testify

1340must be distinctly remembered; the evidence

1346must be precise and explicit and the

1353witnesses must be lacking in confusion as to

1361the facts in issue. The evidence must be of

1370such weight that it produces in the mind of

1379the trier of fact the firm belief of (sic)

1388conviction, without hesitancy, as to the

1394truth of the allegations sought to be

1401established. Slomowitz v. Walker , 429 So.2d

1407797, 800 (Fla. 4th DCA 1983).

141314. Section 562.11(1)(a), Florida Statutes provides as

1420follows in relevant part:

1424(1)(a) It is unlawful for any person to

1432sell, give, serve, or permit to be served

1440alcoholic beverages to a person under 21

1447years of age . . .

145315. Section 561.29(1)(a), Florida Statutes (2007),

1459provides:

1460(1) The division is given full power and

1468authority to revoke or suspend the license

1475of any person holding a license under the

1483Beverage Law, when it is determined or found

1491by the division upon sufficient cause

1497appearing of:

1499(a) Violation by the licensee or his or

1507her or its agents, officers, servants, or

1514employees, on the licensed premises, or

1520elsewhere while in the scope of employment,

1527of any of the laws of this state or of the

1538United States . . .

154316. In construing Subsection 561.29(1), Florida Statutes,

1550Florida's appellate courts have consistently held a licensee

1558liable only for his or her personal misconduct. In Pic N' Save,

1570supra , at 250, the court stated:

1576Although the statutory language in section

1582561.29(1) has since 1957 spoken in terms of

1590the Division's power to revoke or suspend a

1598beverage license for violation of the

1604beverage law committed by a licensee or "its

1612agents, officers, servants, or employees,"

1617the courts of this state have consistently

1624construed and applied this disciplinary

1629authority only on the basis of personal

1636misconduct by the licensee. Thus, while an

1643employee may violate the beverage law in

1650making illegal sales of alcoholic beverages

1656to minors, the licensee's culpable

1661responsibility therefore is measured in

1666terms of its own intentional wrongdoing or

1673its negligence and lack of diligence in

1680training and supervising its employees

1685regarding illegal sales. This limitation on

1691the licensee's liability is consistent with

1697the notion, also long recognized by the

1704courts of this state, that one's license to

1712engage in a occupation is not to be taken

1721away except for misconduct personal to the

1728license.

172917. Petitioner established by clear and convincing

1736evidence that the owner of the licensed premises observed the

1746transaction between Ms. Williams and the IA and that he failed

1757to require his employee to verify the age of the IA. That

1769failure of the owner established the violation alleged by

1778Petitioner.

177918. The recommendation as to the penalty that follows was

1789taken from the Petitioner’s Proposed Recommended Order, is

1797consistent with the penalty guidelines found at Florida

1805Administrative Code Rule 61A-2.022(11), and is the penalty

1813imposed by Petitioner in recent final orders for identical

1822violations.

1823RECOMMENDATION

1824Based on the foregoing Findings of Fact and Conclusions of

1834Law, it is RECOMMENDED that Petitioner enter a final order

1844finding Respondent guilty of one violation of Subsection

1852562.11(1)(a) Florida Statutes as alleged in the Administrative

1860Action. It is further recommended that the final order impose

1870an administrative fine against Respondent in the amount of

1879$1,000.00 and suspend Respondent’s license for seven consecutive

1888days.

1889DONE AND ENTERED this 16th day of June, 2008, in

1899Tallahassee, Leon County, Florida.

1903CLAUDE B. ARRINGTON

1906Administrative Law Judge

1909Division of Administrative Hearings

1913The DeSoto Building

19161230 Apalachee Parkway

1919Tallahassee, Florida 32399-3060

1922(850) 488-9675 SUNCOM 278-9675

1926Fax Filing (850) 921-6847

1930www.doah.state.fl.us

1931Filed with the Clerk of the

1937Division of Administrative Hearings

1941this 16th day of June, 2008.

1947ENDNOTES

19481./ Unless otherwise indicated, all references are to the 2007

1958Florida Statutes.

19602./ The undersigned construes this to be a reference to Ms.

1971William's nieces and cousins.

1975COPIES FURNISHED :

1978Michael J. Wheeler, Esquire

1982Department of Business and

1986Professional Regulation

1988Northwood Centre, Suite 40

19921940 North Monroe Street

1996Tallahassee, Florida 32399-2202

1999Ibrahim Ghantous, Esquire

2002420 South Dixie Highway, Suite 2C

2008Coral Gables, Florida 33146

2012Cynthia Hill, Director

2015Division of Alcoholic Beverages

2019and Tobacco

2021Department of Business and

2025Professional Regulation

2027Northwood Centre

20291940 North Monroe Street

2033Tallahassee, Florida 32399-0792

2036Ned Luczynski, General Counsel

2040Department of Business and

2044Professional Regulation

2046Northwood Centre

20481940 North Monroe Street

2052Tallahassee, Florida 32399-0792

2055NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2061All parties have the right to submit written exceptions within

207115 days from the date of this Recommended Order. Any exceptions

2082to this Recommended Order should be filed with the agency that

2093will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/22/2008
Proceedings: Final Order filed.
PDF:
Date: 07/21/2008
Proceedings: Agency Final Order
PDF:
Date: 06/16/2008
Proceedings: Recommended Order
PDF:
Date: 06/16/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/16/2008
Proceedings: Recommended Order (hearing held March 25, 2008). CASE CLOSED.
PDF:
Date: 06/09/2008
Proceedings: Transcript of the Deposition of Investigative Aid No. 8 filed.
PDF:
Date: 06/09/2008
Proceedings: Transcript of the Deposition of Sacha Boykin filed.
Date: 06/06/2008
Proceedings: Petitioner`s Filing of Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 05/16/2008
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 05/06/2008
Proceedings: Order Granting Extension of Time (proposed recommended orders to be filed by May 20, 2008).
PDF:
Date: 05/05/2008
Proceedings: Motion for Extension of Time filed.
Date: 04/22/2008
Proceedings: Transcript filed.
Date: 04/16/2008
Proceedings: Exhibit (exhibit not available for viewing) filed.
Date: 03/25/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/21/2008
Proceedings: Emergency Motion for Continuance of Final Hearing and Order Compelling Special Agent Jihn Cobban to Appear for Deposition filed.
PDF:
Date: 03/17/2008
Proceedings: Petitioner`s Amended Witness List filed.
PDF:
Date: 01/30/2008
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for March 25, 2008; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL).
PDF:
Date: 01/29/2008
Proceedings: Response to Order Granting Continuance filed.
PDF:
Date: 12/20/2007
Proceedings: Order Granting Continuance (parties to advise status by December 27, 2007).
PDF:
Date: 12/20/2007
Proceedings: Subpoena for Deposition filed.
PDF:
Date: 12/20/2007
Proceedings: Subpoena for Deposition filed.
PDF:
Date: 12/20/2007
Proceedings: Subpoena for Deposition filed.
PDF:
Date: 12/20/2007
Proceedings: Subpoena for Deposition filed.
PDF:
Date: 12/20/2007
Proceedings: Motion for Continuance filed.
PDF:
Date: 12/12/2007
Proceedings: Petitioner`s Pre-Hearing Stipulation filed.
PDF:
Date: 10/23/2007
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/23/2007
Proceedings: Notice of Hearing by Video Teleconference (hearing set for December 21, 2007; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL).
PDF:
Date: 10/11/2007
Proceedings: Response to Initial Order filed.
PDF:
Date: 10/05/2007
Proceedings: Initial Order.
PDF:
Date: 10/05/2007
Proceedings: Administrative Action filed.
PDF:
Date: 10/05/2007
Proceedings: Notice of Appearance (filed by I. Ghantous).
PDF:
Date: 10/05/2007
Proceedings: Request for Hearing filed.
PDF:
Date: 10/05/2007
Proceedings: Agency referral filed.

Case Information

Judge:
CLAUDE B. ARRINGTON
Date Filed:
10/05/2007
Date Assignment:
10/05/2007
Last Docket Entry:
07/22/2008
Location:
Lauderdale Lakes, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

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Related Florida Statute(s) (4):

Related Florida Rule(s) (1):