09-002164 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. T And G Of Orlando, Inc., D/B/A Star Food Mart Status: Closed Recommended Order on Monday, September 14, 2009.

Summary: The sale of an alcoholic beverage to underage person was not proven. The failure to report change of ownership and/or change of officers was proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 09-2164

)

T AND G OF ORLANDO, INC., d/b/a STAR FOOD MART, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed-fact

hearing on June 29, 2009, in Perry, Florida, before Ella Jane P.

Davis, a duly-assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Michael B. Golen, Esquire

Department Business and Professional

Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399

For Respondent: Harunur Rashid Meah, pro se

T & G of Orlando, Inc., d/b/a

Star Food Mart

139 La Cour Lane

Perry, Florida 32348

STATEMENT OF THE ISSUES

Whether Respondent violated Sections 562.11(1)(a), and

561.29(1)(a) (sale of an alcoholic beverage to an underage

person) and/or 561.29(1)(a) and 561.17(3) (failure to notify

Petitioner licensing agency of the transfer of ten percent or

more of any financial interest, change of executive officers or

directors or a divestiture or resignation of such interest or

position), Florida Statutes, as charged in the Administrative

Complaint dated May 4, 2008, and if so, what discipline should

be imposed.

PRELIMINARY STATEMENT

Petitioner charged Respondent in an Administrative

Complaint as set out supra , and Respondent timely requested a

disputed-fact hearing. The cause was referred to the Division

of Administrative Hearings (DOAH) on or about April 23, 2009.

DOAH’s file reflects all pleadings, notices, and orders

intervening before the final hearing.

At the commencement of the disputed-fact hearing,

Petitioner stipulated that the corporate licensee’s principal,

who was appearing on his own behalf and on behalf of the

corporation, is Harunur Rashid Meah a/k/a Rashid Meah.

Mr. Harunur Rashid Meah was permitted to act as Qualified

Representative for Respondent corporation.

Also, the parties stipulated to the use of Respondent’s

brother, Mohammed Meah, as interpreter, for English to Bangla

and Bangla to English. 1/ Pursuant to Section 90.606, Florida

Statutes, the undersigned made appropriate inquiry of

Mr. Mohammed Meah and received his answers under oath.

Mr. Mohammed Meah was then accepted and sworn-in as interpreter.

Petitioner presented the oral testimony of Robert L.

Lastinger, Frank Anzalone, and M.C., 2/ and had nine exhibits

admitted in evidence. Respondent Meah testified on his own

behalf and presented the oral testimony of Stephanie Wood. He

had one exhibit (R-1A/R-1B), a cash register tab, described as a

“receipt” in the record, admitted in evidence. 3/

A Transcript was filed on July 16, 2009.

Only Petitioner filed a Proposed Recommended Order on

July 23, 2009. That proposal has been considered in preparation

of this Recommended Order. All reference to Florida Statutes

are to the 2007 codification in effect at the time of the

conduct, unless otherwise indicated.

FINDINGS OF FACT

1. At all times material, Respondent was licensed under

the Florida Beverage Law, by Petitioner Department of Business

and Professional Regulation, Division of Alcoholic Beverages and

Tobacco.

2. Respondent is subject to Petitioner’s regulatory

jurisdiction, having been issued License Number 72-00497, Series

2-APS, to sell beer and wine in sealed containers for

consumption off of the licensed premises only.

3. There is no evidence that Respondent business had ever

been previously cited for violation of its license or that

Petitioner was investigating the premises on the basis of a

complaint or allegation at the time this case arose.

Charging Paragraph One 4/

4. Petitioner’s Special Agent and a Lieutenant, who at all

times material was working as Petitioner's Special Agent,

addressed “a directed enforcement issue,” the belief that

because energy drinks containing alcohol had newly come on the

market, there would be sales of them to underage persons.

5. On April 25, 2008, the agents conducted undercover

operations at what their paperwork shows to be a minimum of 13

alcoholic beverage retail stores in Perry, Florida, and one

store in Steinhatchee, Florida, between 4:35 p.m. and 8:22 p.m.

6. The agents testified that their operation on that date

also involved even more stores in several counties.

7. The agents’ paperwork shows they arrived at

Respondent’s store at 5:11 p.m. on April 25, 2008, and that they

followed standard Agency procedures.

8. On April 25, 2008, the Agency employed M.C. as

“Investigative Aide AL0015.” M.C. had worked for the Agency as

an undercover operative for almost five years and previously had

worked with the aforementioned two agents. On that date, M.C.,

a female, was 19 years old.

9. On April 25, 2008, the agents gave M.C. a $5.00 bill

with which to make “the buy.” She took no other money into

Respondent’s store with her.

10. Petitioner’s two agents testified that at 5:11 p.m.,

while sitting in their car parked in front of Respondent’s

store, they witnessed M.C. purchase a “Sparks” from Respondent

Meah. Between them, the officers’ testimony included details

such as seeing that one other person was in the store when M.C.

entered the store; seeing M.C. remove a Sparks can from the

cooler; seeing that no conversation took place between M.C. and

Respondent Meah; and seeing that no identification was requested

by Mr. Meah. M.C. did not relate that anyone else was in the

store at the time of her purchase. The agents provided no

information as to how they saw so much detail through their

car's windshield and the window of the store. Clearly, they

could not have heard any conversation at that distance and under

those conditions. There also is no evidence of backlighting

from inside the store by which the agents could even see Huranur

Rashid Meah and M.C. in silhouette so as to observe them talking

or not talking. For these reasons, the only competent evidence

of what occurred between M.C. and Mr. Meah is the testimony of

M.C. and Mr. Meah.

11. M.C. testified that at approximately 5:12 p.m. on

April 25, 2008, M.C. presented a can of “Sparks” alcoholic

beverage and a package of Orbits gum to Respondent Meah at the

cash register; that he did not require identification/proof of

age from her; that he did not ask her how old she was; and that

he rang up her purchase, giving her $1.92 in change, the can of

“Sparks,” and the gum.

12. Huranur Rashid Meah testified that he sold only one

can of Sparks at approximately 5:27 p.m. on April 25, 2008, to

his long-time customer, Stephanie Lee Wood, née Johnson.

13. At hearing, Ms. Wood presented herself as an adult,

without stating her age for the record. She testified that for

a significant period of time, she was in Respondent's store

every day about the same time and at that time "mostly" bought a

Sparks Malt Beverage from Respondent Meah.

14. Ms. Wood is Caucasian, and M.C. is a light-skinned

Negro, but they have very similar builds or silhouettes, and

could be mistaken for being of a similar age.

15. Upon observation of M.C. at hearing, the undersigned

was unable to discern her age, and without testimony would not

have guessed she was merely 21 years old on the date of hearing.

Her photograph in evidence, taken on April 25, 2008, does not

look like an under-age person, or even very much as M.C. looked

when she testified at age 21.

16. When M.C. returned from Respondent’s store to the car

containing the two agents on April 25, 2009, the agents verified

that she had only $1.92 on her; that she had with her a can of

“Sparks” and a package of Orbits gum; and that $1.92 was an

appropriate remainder for the purchase of a “Sparks” 16 oz. can

and a package of Orbits gum, plus tax. Then all three of

Petitioner’s operatives filled-out their on-scene paperwork.

17. Before leaving the scene on April 25, 2008, the agents

issued to Respondent Meah an Arrest/Notice to Appear/Probable

Cause Affidavit. Respondent Meah signed on the bottom of this

item, acknowledging receipt thereof.

18. After repeating similar procedures multiple times

throughout the remainder of the evening, Petitioner’s agents

checked the can of “Sparks” they had bagged at the scene into

their headquarters' secure evidence lock-up, and prepared

additional paperwork at headquarters.

19. Sparks Malt Beverage apparently contains seven percent

alcohol. From differences in the paperwork filled out at the

scene, the paperwork from the evidence lock-up, and the oral

testimony at hearing, one could guess that the 16-oz. can

allegedly purchased by the underage operative from Respondent

or “Sparks” as an energy drink.

20. Ultimately, the State Attorney for Taylor County, in

and for the Third Judicial Circuit, issued a “ nolle prosequi ,”

for the associated criminal case, brought against Respondent

Meah, 5/ and destroyed the “Sparks” can involved. No physical

evidence of the can allegedly purchased by M.C. was available to

be admitted in evidence during this administrative case’s

disputed-fact hearing.

21. Respondent Meah submitted in evidence an automatically

printed cash register tape from his store’s single cash

register. He claimed this item showed the transaction he had

with Ms. Wood on April 25, 2008.

22. The register tape shows that only one sale for the

combined amount of $1.69 (the cost of a can of Sparks Malt

Beverage), and for $1.19, (the cost of a package of Orbits gum),

was rung up together on that date. It further shows that after

tax, $1.92 was given in change to the customer. Respondent's

cash register tape also shows a sales time of 5:27 p.m. on

April 25, 2008. This is the only similar transaction on that

date on the whole cash register receipt. Several other

transactions on the tape show beer sales at $1.69 each, but no

other transactions match the exact amount(s) testified-to by

Meah, Wood, and Petitioner's three operatives.

23. Based on the evidence as a whole, there is no

persuasive reason to rely on the time posted on this cash

register receipt as being reliable; but likewise, there is no

clear evidence that the time on the receipt is not reliable.

The receipt could be read to show Sparks and Orbits were sold to

M.C. or that Ms. Wood purchased the Sparks and something else at

that time. It could also be interpreted in a variety of other

ways, but clearly, it shows only one sale matching all

witnesses' testimony occurred on that date.

Charging Paragraph Two

24. On August 8, 2006, Respondent had completed and

submitted to Petitioner his application for a beverage license.

Section six, on page seven of that application, shows “Abdul

Latif Meah” (Respondent Hurunar Rashid Meah’s father) as a 50

percent owner of the corporate Respondent (licensed premises),

and further shows Respondent “Harunur Rashid Meah” as a 50

percent owner. It also shows the father as corporate president

and Respondent Meah as corporate vice-president.

25. At no time has anyone notified Petitioner that any

change in the stock or ownership interest in the licensed

facilities has taken place, or that the corporate officers have

changed.

26. However, as of November 26, 2007, Respondent Harunur

Rashid Meah filed with the Secretary of State, Division of

Corporations, papers for “reinstatement” of the Respondent

Corporation, and these papers show Harunur Rashid Meah, as the

sole owner/president, treasurer/director of Respondent

corporation.

27. Respondent Meah's explanation of the foregoing is

that: He “missed a payment.” He never dissolved the original

corporation, but he needed to get the corporation reinstated or

reactivated, which he did as of November 26, 2007, listing only

himself on the papers required by the Division of Corporations.

Respondent Meah also testified that he had signed all the papers

for obtaining the alcoholic beverage license from Petitioner

without understanding or reading them, and without appreciating

the oath thereon that he signed, promising to tell the truth on

those papers, and further promising to comply with the Florida

Beverage Law. Among other requirements, the Florida Beverage

Law requires notice to Petitioner of the transfer of ten percent

or more of any financial interest, change of executive officers

or directors, or divestiture or resignation of such interest or

position. (See Conclusions of Law.)

28. Petitioner Agency asserts that the contradiction

between the August 8, 2006, disclosure of interested parties on

Section Six of the Beverage Law license application and the

interested parties listed on the November 26, 2007, Division of

Corporations documents violates Section 561.17(3), Florida

Statutes, because Mr. Meah did not notify the Petitioner Agency

as he was required to do, and that the present situation is

especially serious because Petitioner had previously warned

Respondent of the violation.

29. Special Agent Lastinger’s testimony is credible that

he discovered the November 26, 2007, incorporation papers when

he was preparing to draft the criminal and administrative

charges after the April 25, 2008, undercover operation.

However, his testimony that finding those papers after April 25,

2008, reminded him that he had warned Respondent Meah two years

before April 25, 2008 (that is, sometime between April and

December 2006) that Respondent could be prosecuted for ownership

problems, is not credible or persuasive testimony, since the

change of ownership, if any, can only be traced to November

2007. 6/

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569 and 120.57, Florida Statutes

(2009).

31. Petitioner has the duty to go forward and the burden

of proof by clear and convincing evidence that Respondent

violated, per Charging Paragraph One, of the Administrative

per Charging Paragraph Two, Sections 561.29(1)(a), and

561.17(3), Florida Statutes. See Ferris v. Turlington , 510 So.

2d 292, 294 (Fla. 1987); Pic ‘N’ Save Central Florida, Inc. v.

Department of Business and Professional Regulation, Division of

Alcoholic Beverages and Tobacco , 601 So. 2d 245, 249 (Fla. 1st

DCA 1992)

32. Section 561.29(1)(a), provides, in pertinent part:

561.29 Revocation and suspension of license;

power to subpoena.

(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, or violation of any municipal

or county regulation in regard to the hours

of sale, service, or consumption of

alcoholic beverages or license requirements

of special licenses issued under s. 561.20,

or engaging in or permitting disorderly

conduct on the licensed premises, or

permitting another on the licensed premises

to violate any of the laws of this state or

of the United States. A conviction of the

licensee or his or her or its agents,

officers, servants, or employees in any

criminal court of any violation as set forth

in this paragraph shall not be considered in

proceedings before the division for

suspension or revocation of a license except

as permitted by chapter 92 or the rules of

evidence.

Charging Paragraph One

33. Section 562.11(1) (a) Florida Statutes, provides, in

pertinent part, that:

1. 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 or to permit a person under 21

years of age to consume such beverages on

the licensed premises. A person who

violates this subparagraph commits a

misdemeanor of the second degree, punishable

as provided in s. 775.082 or s. 775.083.

34. It is the responsibility of the licensee or his agents

to determine the age of all patrons prior to selling alcoholic

beverages to them. When engaging in such transactions, the

licensee or his agents must exercise a reasonable standard of

diligence to ensure that alcoholic beverages are not sold to

minors. Lash, Inc. v. Department of Business and Professional

Regulation , 411 So. 2d 276 (Fla. 3rd DCA 1982).

35. Herein, we do not even have to reach the issue of

whether or not Respondent should have “carded” or inquired for

age of majority, because there is, at most, an equipoise of

evidence that an illegal sale was/was not made to the Agency’s

underage operative. The undersigned is not persuaded that on

April 25, 2008, Respondent made a sale of an alcoholic beverage

to an underage operative, let alone that it was made

“negligently, without care to diligently attempt to prevent such

sales.” See Lash, Inc. v. Department of Business and

Professional Regulation , supra. ; Trader Jon, Inc. v. State

Beverage Department , 119 So. 2d 735, (Fla. 1st DCA 1960). The

“sale to an underage person” charge is not supported by clear

and convincing evidence.

36. Petitioner’s prayer for an administrative fine of

$1,000.00, and a seven-day suspension of Respondent's license on

this basis is in line with the penalty guidelines set out in

Florida Administrative Code Rule 61A-2.022(1), but may not be

granted because the facts alleged in Charging Paragraph One have

not been clearly and convincingly proven.

Charging Paragraph Two

37. Section 561.17, Florida Statutes, provides, in

pertinent part:

(1) Any person before engaging in the

business of manufacturing, bottling,

distribution, selling, or in any way dealing

in alcoholic beverages, shall file, with the

district licensing personnel of the district

of the division in which the place of

business for which a license is sought is

located, a sworn application in duplicate on

forms provided to the district licensing

personnel by the division. The applicant

must be a legal or business entity, person,

or persons and must include all persons,

officers, shareholders, and directors of

such legal or business entity that have a

direct or indirect interest in the business

seeking to be licensed under this part.

However, the applicant does not include any

person that derives revenue from the license

solely through a contractual relationship

with the licensee, the substance of which

contractual relationship is not related to

the control of the sale of alcoholic

beverages. Prior to any application being

approved, the division may require the

applicant to file a set of fingerprints on

regular United States Department of Justice

forms for herself or himself and for any

person or persons interested directly or

indirectly with the applicant in the

business for which the license is being

sought, when so required by the division.

If the applicant or any person who is

interested with the applicant either

directly or indirectly in the business or

who has a security interest in the license

being sought or has a right to a percentage

payment from the proceeds of the business,

either by lease or otherwise, is not

qualified, the application shall be denied

by the division. However, any company

regularly traded on a national securities

exchange and not over the counter; any

insurer, as defined in the Florida Insurance

Code; or any bank or savings and loan

association chartered by this state, another

state, or the United States which has an

interest, directly or indirectly, in an

alcoholic beverage license shall not be

required to obtain division approval of its

officers, directors, or stockholders or any

change of such positions or interests. A

shopping center with five or more stores,

one or more of which has an alcoholic

beverage license and is required under a

lease common to all shopping center tenants

to pay no more than 10 percent of the gross

proceeds of the business holding the

licensee to the shopping center, shall not

be considered as having an interest,

directly or indirectly, in the license.

* * *

(3) A transfer of 10 percent of any

financial interest, a change of executive

officers or directors, or a divestiture or

resignation of such interest or position, in

a business holding a vendor’s license

permitting the sale of any alcoholic

beverages regardless of alcoholic content

shall be contingent upon the express

approval by the division of the persons

holding or acquiring such interest or

position except for persons exempted in

subsection (1).

38. The facts alleged in Charging Paragraph Two, have been

proven clearly and convincingly. Respondent was clearly

negligent, and did not exercise a reasonable standard of

diligence in keeping his records with Petitioner Agency current

or in notifying Petitioner of changes in ownership or a change

of officers or directors, as the law requires him to do.

39. Moreover, there is clear and convincing evidence that

Harunar Rashid Meah signed his license application papers under

oath without reading them, and that he thereby promised certain

things were true without fully understanding what he was

signing.

40. Based on Respondent Meah's testimony herein, it is

impossible to know with any accuracy who had an ownership

interest as of the beverage license application date or who

currently has an ownership interest in the licensed facility.

All that was shown herein is that the 2006 license application

may have been inaccurate to start with and that the original

application's disclosure of ownership interests and corporate

officers is not supported by the 2007, corporation documents

currently on file with the Secretary of State.

41. The current corporate documents filed with the

Secretary of State show Harunur Rashid Meah as the owner of 100

percent of the licensed premises, and since he was previously

approved by Petitioner as 50 percent owner, it is unlikely he

could now be disapproved. However, Respondent needs to make

full and accurate disclosure to Petitioner both of ownership

interests and of the identity of corporate officers.

42. Under such circumstances, the penalty proposed by the

Agency and the guideline provided in the rule for a $500.00 fine

for a first offense, hardly seems sufficient. However, unlike

rules of other agencies, Petitioner’s Rule does not identify any

aggravating or mitigating considerations which may be taken into

account in assessing a penalty. Although the fine may not be

increased above $500.00, the Agency should take steps to get

full disclosure of corporate involvement in this license.

RECOMMENDATION

Upon 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 that (1) Dismisses Charging Paragraph One, sale of

alcoholic beverage to an underage person; (2) Finds Respondent

guilty of Charging Paragraph Two, failure to notify Petitioner

of the transfer of ten percent or more of any financial

interest, or change of executive officers or directors, and

fines him $500.00, therefor; and (3) Requires Respondent to

notify Petitioner of the current ownership interests and names

of executive officers within 30 days of the final order.

DONE AND ENTERED this 14th day of September, 2009, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of September, 2009.

ENDNOTES

1/ Bangla is the official language of Bangladesh.

2/ M.C. was 21 years of age at the time of hearing, and her

name and particulars appear of record in the Transcript.

However, the undersigned has elected to substitute her initials

in this Recommended Order because she was a minor on the date of

the alleged incident and because she may pursue a career in law

enforcement.

3/ See TR 124-125.

4/ Most Administrative Complaints use "Counts." The one herein

only numbers paragraphs.

5/ The reason given on the nolle prosquii document was:

"Because of the expense involved in acquiring a Bengali [sic]

interpreter."

6/ In making this finding, it is possible that Special Agent

Lastinger meant that he had warned Respondent in 2006,

concerning having let Respondent's corporate registration with

the Secretary of State lapse, but there is a lack of clear

evidence on this matter and there is testimony that the November

2007, corporation exhibit may not even be a complete file from

the Secretary of State, Division of Corporations.

COPIES FURNISHED :

Michael B. Golen, Esquire

Department Business and Professional

Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399

Harunur Rashid Meah

T & G of Orlando, Inc., d/b/a

Star Food Mart

139 La Cour Lane

Perry, Florida 32348

Jerry Geier, Director

Division of Alcoholic Beverages and Tobacco

Department Business and Professional

Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399

Ned Luczynski, General Counsel

Department Business and Professional

Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399

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.