97-003858 Division Of Alcoholic Beverages And Tobacco vs. Nehreen Enterprises, Inc., D/B/A Super Stop Food Store No. 2 Status: Closed Recommended Order on Thursday, December 18, 1997.

Summary: Licensee used due diligence to screen for underage person and, therefore, licensee was not subject to discipline for sale of alcohol to minor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, DIVISION )

OF ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 97-3858

)

MEHREEN ENTERPRISES, INC., )

d/b/a SUPER STOP FOOD STORE #2, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, William J.

Kendrick, held a formal hearing in the above-styled case on

December 3, 1997, in Miami, Florida.

APPEARANCES

For Petitioner: Thomas D. Winokur, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Irwin G. Lichter, Esquire

321 Northeast 26th Street

Miami, Florida 33137

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed

the offense set forth in the Administrative Action and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

On June 18, 1997, Petitioner issued a one-count

Administrative Action whereby it alleged that Respondent, the

holder of an alcoholic beverage license, violated the provisions

of Section 562.11(1)(a), Florida Statutes, and, therefore,

Section 561.29(1), Florida Statutes, when, through its agent,

servant, or employee Syed Abdul Qadir, it did "sell, serve or

give an alcoholic beverage, to wit: [one] . . . 32 oz. Bottle of

Red Dog beer, on your licensed premises to a person under the age

of 21, to wit: Richard Stangl d/o/b 12/07/76."

Respondent filed a request for hearing which disputed the

material facts alleged in the Administrative Action, and the

matter was referred to the Division of Administrative Hearings

for the assignment of an administrative law judge to conduct a

formal hearing pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

At hearing, Petitioner called Kenyon Watkins and

Richard Stangl, as witnesses. Respondent called Syed Abdul Qadir

and Ron Ohana, as witnesses, and its Exhibits 1 and 2 were

received into evidence.

The transcript of the hearing was not ordered. Therefore,

it was announced on the record that the parties were accorded ten

days from the date of hearing to file proposed recommended orders

or memoranda. The parties elected to file such a proposal or

memorandum, and they have been duly considered.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Mehreen

Enterprises, Inc., held license number 23-21339, Series 2APS,

authorizing it to sell alcoholic beverages on the premises of a

business known as Super Stop Food Store #2, located at

9260 Hammocks Boulevard, Miami, Dade County, Florida (hereinafter

"the licensed premises"). Syed Abdul Qadir (Qadir) was, and is,

a shareholder of the Respondent corporation, and the manager of

the licenses premises. 1

2. On March 1, 1997, at or about 8:00 p.m., Richard Stangl

(Richard), date of birth December 7, 1976, and 20 years of age at

the time, entered the licensed premises, retrieved a 32 ounce

bottle of Red Dog beer from a vertical cooler, and proceeded to

the counter where he paid Qadir for the beer and left the

premises. At the time, Qadir did not request to see any

identification as proof of legal age, nor did he ask Richard his

age.

3. As Richard drove away from the store he was intercepted

by the police, who were engaged in an investigation of the

premises. Confirming Richard's age and the possession of an

alcoholic beverage, 2 Richard was returned to the licensed

premises where he and Qadir were placed under arrest. 3

4. Respondent does not dispute that the foregoing events

occurred. Rather, it contends that it took reasonable

precautions to avoid serving an underaged person and should not,

therefore, be penalized for the subject sale. Given the proof,

Respondent's contention has merit.

5. While Richard was less than 21 years of age at the time,

the proof demonstrated that his appearance was such that an

ordinary prudent person would believe he was of legal age to

purchase alcoholic beverages. 4 The proof further demonstrates

that Richard frequented the licensed premises on a regular basis

over a three month period, and that he routinely purchased

(approximately 30 times) alcoholic beverages during that period.

Initially Qadir inquired as to his age, which Richard stated to

be 21, and requested identification, which Richard presented in

the form of a driver's license consistent with that age. Qadir

continued to request identification for a time but, as Richard

appeared regularly at the store, and began to complain, he ceased

requesting identification. Given the repeated assurances by word

and identification card that Qadir had received regarding

Richard's apparent age, Qadir's failure to continue to request

identification was not unreasonable. 5

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of, these

proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida

Statutes (Supp. 1996).

7. Where, as here, the agency proposes to take punitive

action against a licensee, it must establish the grounds for

disciplinary action by clear and convincing evidence. Section

120.57(1)(h), Florida Statutes (Supp. 1996), and Department of

Banking and Finance v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996). "The evidence must be of such weight that it

produces in the mind of the trier of fact a firm belief or

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).

8. Pertinent to this case, Section 561.29(1), Florida

Statutes, provides that the Division of Alcoholic Beverages and

Tobacco is given full power and authority to revoke or suspend a

beverage license under the Beverage Law when it is determined

that, inter alia , the licensee or his or its agents, officers,

servants, or employees, on the licensed premises or elsewhere in

the scope of employment violated any of the laws of this state or

of the United States.

9. Section 562.11, Florida Statutes, proscribes the

following conduct:

(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 or to permit a person under 21

years of age to consume such beverages on the

licensed premises. Anyone convicted of

violation of the provisions hereof is guilty

of a misdemeanor of the second degree,

punishable as provided in s. 775.082 or

s. 775.083.

10. Rule 61A-3.052, Florida Administrative Code, provides a

defense for a violation of subsection 562.11(1)(a) under the

following circumstances:

(1) A licensee who has been cited in an

administrative action for violations of

sections 562.11(1)(a) . . . Florida Statutes,

shall have a defense to any administrative

action is the underage person falsely

evidenced that he was of legal age to

purchase the alcoholic beverage . . . or

consume the alcoholic beverage product and

the appearance of the person was such that an

ordinarily prudent person would believe the

person is of legal age to purchase or consume

those products, and if the licensee attempted

to verify the person's age by checking one of

the following forms of identification with

respect to the person:

(a) A driver's license, issued by any

government agency, domestic or foreign,

provided it includes a photograph;

(b) Identification cards issued by any

state, provided it includes a photograph;

(c) Passports;

(d) An identification card issued by any

branch of the United States military which

shows the customer is currently serving in

the United States Armed Services or is a

family member of a person currently serving

in the United States Armed Services.

* * *

(3) No other type of identification will

be recognized as mitigation if a licensee or

a licensee's employee sells, gives, or serves

alcoholic beverages . . . to an underage

person.

11. Here, the facts demonstrated with the requisite degree

of certainty that Respondent, through its agent Qadir, violated

the provisions of subsection 562.11(1)(a) by selling an alcoholic

beverage to a person under the age of 21 years. However, the

proof likewise demonstrated that, more likely than not, the

underaged person had, on numerous occasions in the past, falsely

evidenced that he was of legal age to purchase alcoholic

beverages, that his appearance was such that an ordinarily

prudent person would believe him of legal age to purchase such

products, and that Qadir had on numerous occasions in the past,

although not the occasion at issue, attempted to verify his age

by checking a driver's license tendered by the underaged person

for such purposes. Given the circumstances, Respondent's agent

took reasonable steps to avoid the sale of alcoholic beverages to

an underaged person and, therefore, Respondent has established

its entitlement to the defense provided by Rule 61A-3.052(1),

Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered dismissing the

Administrative Action.

DONE AND ENTERED this 18th day of December, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of December, 1997.

ENDNOTES

1/ Syed Abdul Qadir, together with his wife, are the owners of

the business.

2/ Section 562.47(2), Florida Statutes.

3/ As for the disposition of the cases, the proof does not

demonstrate the disposition of Qadir's case and, as to Richard's

case, the proof only shows that adjudication was withheld.

4/ As of the date of hearing, Richard was still 4 days shy of his

21st birthday, but his appearance was consistent with that of an

older person. Moreover, while clean shaven at the hearing,

Richard, more likely than not, was bearded at the time in

question, and would have appeared even older. Notably, Richard

suffers a rapid and heavy growth of facial hair such that after

only two or three days he has a noticeable beard. Richard prefers

not to shave because of a resulting skin irritation.

5/ Here, the proof is conflicting as to whether Qadir ever

inquired of Richard's age or requested identification. According

to Richard, Qadir did not ask his age or ask for identification

when he purchased alcoholic beverages. Richard further testified

that he never used a false identification card. Contrasted with

his testimony, Qadir averred that he did inquire, was assured that

Richard was over 21 years of age, and was shown a driver's license

by Richard consistent with that age. Considering the proof,

Qadir's testimony has been credited and that of Richard rejected

as less than persuasive. In rejecting Richard's testimony as less

than candid, it is observed that on direct examination, after

averring he never used false identification, Richard was asked

what he did when asked for his identification. Richard responded

that, on those occasions, he would simply tell the clerk (someone

other than Qadir) that he did not have it with him, that he would

be right back, and then he would leave the store. On cross-

examination, Richard reaffirmed that he never used false

identification but inexplicably responded to questioning regarding

the purchase of alcohol when he was less than 21 years of age,

that he did not know one had to be 21 years of age to buy beer.

Given that Richard is native born, is a resident of Florida since

1983, is fluent in the English language, and has been drinking

alcoholic beverages since the age of 18, his testimony that he was

unaware of the legal age to consume alcoholic beverages in

Florida, is inherently improbable and unworthy of belief. Such

testimony is also inconsistent with the import of his direct

testimony, which implicitly recognized his legal incapacity to

purchase alcohol absent identification demonstrating the legal

age.

COPIES FURNISHED:

Thomas D. Winokur, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Irwin G. Lichter, Esquire

321 Northeast 26th Street

Miami, Florida 33137

Richard Boyd, Director

Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

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.