97-004378 Division Of Alcoholic Beverages And Tobacco vs. Vampire Cafe, Inc., D/B/A Vampire Cafe Status: Closed Recommended Order on Monday, April 6, 1998.

Summary: Licensee established defense to sale of alcoholic beverage to a minor, and administrative action should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, DIVISION )

OF ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 97-4378

)

VAMPIRE CAFE, INC., d/b/a )

VAMPIRE CAFE, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 28, 1998, in Vero Beach, Florida, before Patricia Hart

Malono, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Miguel Oxamendi

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Eric Lappalainen, pro se

3865 North Highway A1A

Fort Pierce, Florida 34949

STATEMENT OF THE ISSUES

Whether the Respondent committed the violation alleged in

the Administrative Action dated June 30, 1997, and, if so, the

penalty which should be imposed.

PRELIMINARY STATEMENT

On June 30, 1997, the Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco ("Department"), filed an Administrative Action charging

that, on or about May 14, 1997, an agent or employee of the

Vampire Cafe, Inc., d/b/a Vampire Cafe, sold an alcoholic

beverage to a person under the age of twenty-one years, in

violation of Section 562.11(1)(a), Florida Statutes. The Vampire

Cafe, through Eric Lappalainen, its secretary/treasurer,

requested a formal hearing, and the Department forwarded the case

to the Division of Administrative Hearings for assignment of an

administrative law judge. Pursuant to notice, a hearing was held

on January 28, 1998.

At the hearing, the Department presented the testimony of

Special Agent Charlene Murphy, an employee of the Department, and

Detective Richard Boyd, an officer with the Vero Beach Police

Department. The Petitioner did not offer any exhibits into

evidence. The Vampire Cafe presented the testimony of Jason

Richard Thatcher and Eric Lappalainen, and Respondent's Exhibit 1

was offered and received into evidence. At the request of the

Department, official recognition was taken of Rule 61A-2.022,

Florida Administrative Code.

No transcript was filed in this case, but the parties timely

filed proposed recommended orders, which have been duly

considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department of Business and Professional Regulation,

Division of Alcoholic Beverages and Tobacco, is the state agency

charged with enforcing Florida's Beverage Law, and, specifically,

with regulating the sale of alcoholic beverages in the state.

Sections 561.02 and .11(1), Florida Statutes.

2. At all times material to this proceeding, the Vampire

Cafe held alcoholic beverage license number 41-01242, series

2-COP, which authorized the sale of alcoholic beverages on the

premises of the Vampire Cafe, located at 1306 20th Street, Vero

Beach, Indian River County, Florida. At all times material to

this proceeding, Eric Lappalainen was the secretary/treasurer of

the Vampire Cafe, holding twenty percent ownership interest.

3. At approximately 10:30 p.m. on May 14, 1997, Detective

Richard Boyd of the Vero Beach Police Department entered the

Vampire Cafe to conduct an undercover investigation of underage

drinking on the premises; he was alone. Detective Boyd observed

that no one was checking identification at the door of the

establishment, which was a coffee house open to persons of all

ages and in which both nonalcoholic and alcoholic beverages were

served.

4. Detective Boyd sat at the bar and observed that Eric

Lappalainen was tending bar; although Detective Boyd thought

Mr. Lappalainen was the only employee in the cafe at the time, a

part-time employee named Nathan Palmer was working also. The

cafe was a small establishment, and it was crowded, with

approximately forty people standing or sitting at tables and at

the bar. Even though the lights were low, Detective Boyd could

distinguish facial features from one end of the bar to the other.

5. Detective Boyd observed a young man approach the bar

about seven feet from where he was seated and hand

Mr. Lappalainen two one-dollar bills, which he put into the cash

register. Detective Boyd could not hear the conversation between

Mr. Lappalainen and the young man, but the young man did not show

Mr. Lappalainen any identification. Mr. Lappalainen drew two

glasses of dark liquid from a tap labeled "Guinness Stout," and

he handed them to the young man. Detective Boyd tested the

liquid drawn from the tap by ordering a Guinness Stout, and he

confirmed that it was an alcoholic beverage.

6. Detective Boyd believed that the young man he saw

purchase the beers was Jason Thatcher. He based this

identification on his contact with Jason several weeks prior to

May 14, 1997, when he had arrested Jason for possession and

cultivation of drugs.

7. Jason was born on October 10, 1978, and was nineteen

years old on May 14, 1997. Based upon my observation of Jason at

the hearing, his appearance suggests that he could have been

twenty-one years of age.

8. Detective Boyd did not arrest either Mr. Lappalainen or

Jason at the time he observed the sale because he was still

conducting his undercover investigation. However, Jason was

arrested two weeks after the incident, and Mr. Lappalainen was

arrested on June 25, 1997, over a month after the incident.

9. It was Mr. Lappalainen's habit to ask for identification

from each person purchasing an alcoholic beverage in the Vampire

Cafe to verify that he or she was of legal age; the only

exception to this practice was when Mr. Lappalainen knew the

person and knew that he or she was twenty-one years of age or

older. Mr. Lappalainen asked for identification when a person

purchased his or her first alcoholic beverage and did not usually

require further identification from the same person during the

evening.

10. Jason Thatcher was in the Vampire Cafe at the time

Detective Boyd entered the premises.

11. The evidence presented by the Department is sufficient

to establish that Mr. Lappalainen sold an alcoholic beverage to a

Jason Thatcher, who is under the age of twenty-one years.

However, the evidence is not sufficient to establish that

Detective Boyd observed Jason purchase his first beer at the cafe

on the night of May 14, 1997.

12. Mr. Lappalainen was first confronted with the charges

of sale of an alcoholic beverage to a minor at the time of his

arrest on June 25, 1997. He could not, therefore, be expected to

recall precisely whether he had asked for Jason's identification

and whether the identification produced showed that Jason was

twenty-one years of age. Under these circumstances, the evidence

presented by Mr. Lappalainen that it was his habit to request

identification before selling an alcoholic beverage is sufficient

to give rise to the inference that he asked Jason to provide

identification before he purchased his first beer on May 14,

1997. Had Jason produced false identification in response to the

request, his appearance is such that Mr. Lappalainen could

reasonably have believed him to be twenty-one years old.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to section 120.57(1), Florida

Statutes (1997).

14. Section 562.11(1)(a), Florida Statutes, makes it

“unlawful for any person to sell, give, serve or permit to be

served alcoholic beverages to a person under the age of 21 years

of age.”

15. Section 562.11(1)(b) provides in pertinent part:

A licensee who violates paragraph (a)

shall have a complete defense to any civil

action therefor, except for an administrative

action by the division under the Beverage

Law, if, at the time the alcoholic beverage

was sold, given, served, or permitted to be

served, the person falsely evidenced that he

was of legal age to purchase or consume the

alcoholic beverage and the appearance of the

person was such that an ordinarily prudent

person would believe him to be of legal age

to purchase or consume the alcoholic beverage

and if the licensee carefully checked one of

the following forms of identification with

respect to the person: a driver’s license,

an identification card . . ., a passport, or

a United States Uniformed Services

identification card, and acted in good faith

and reliance upon the person’s representation

and appearance of the person in the belief

that he was of legal age to purchase or

consume the alcoholic beverage. . . .

The Department, in Rule 61A-3.052(1), Florida Administrative

Code, has provided a defense to an administrative action which

contains virtually identical elements.

16. Because the Department seeks to impose administrative

penalties which may include the suspension or revocation of

Vampire Cafe's license to sell alcoholic beverages and/or the

imposition of an administrative fine, the Department has the

burden of proving the allegations in the Administrative Action by

clear and convincing evidence. Osborne Stern and Company v.

Department of Business and Professional Regulation, Division of

Alcoholic Beverages and Tobacco , 670 So. 2d 932, 935 (Fla. 1996);

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

17. Based on the facts found herein, the Department has met

its burden of proving by clear and convincing evidence that

Mr. Lappalainen violated Section 562.11(1)(a) when he sold two

glasses of Guinness Stout to Jason Thatcher on the premises of

the Vampire Cafe.

18. However, based on the facts found herein, the Vampire

Cafe has proven the elements set forth in Rule 61A-3.052(1),

thereby establishing a complete defense to this administrative

action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation enter a final order dismissing the

Administrative Action against the Vampire Cafe, Inc., dated

June 30, 1997.

DONE AND ENTERED this 6th day of April, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

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 6th day of April, 1998.

COPIES FURNISHED:

Miguel Oxamendi, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Eric Lappalainen, pro se

3865 North Highway A1A

Fort Pierce, Florida 34949

Lt. Bob Young

800 Virginia Avenue, Suite 7

Fort Pierce, Florida 34982

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Richard Boyd, Director

Division of Alcoholic Beverages

and Tobacco

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.