98-003539 Division Of Alcoholic Beverages And Tobacco vs. N. W. S. Food And Gas, D/B/A Time Saver No. 9
 Status: Closed
Recommended Order on Friday, January 8, 1999.


View Dockets  
Summary: Sale of alcoholic beverage to minor was proven.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF ALCOHOLIC )

20BEVERAGES AND TOBACCO, )

24)

25Petitioner, )

27)

28vs. ) Case No. 98-3539

33)

34N.W.S. FOOD & GAS, )

39d/b/a TIME SAVER )

43)

44Respondent. )

46_________________________________)

47RECOMMENDED ORDER

49Upon due notice, this cause came on for formal hearing on

60November 9, 1998, in Tallahassee, Florida, before Ella Jane P.

70Davis, a duly assigned Administrative Law Judge of the Division

80of Administrative Hearings.

83APPEARANCES

84For Petitioner: Barry Kling

88Assistant General Counsel

91Department of Business and

95Professional Regulation

971940 North Monroe Street

101Tallahassee, Florida 32399-1007

104For Respondent: J. Joseph Hughes, Esquire

1101017-A Thomasville Road

113Tallahassee, Florida 32303

116STATEMENT OF THE ISSUE

120Did Respondent sell an alcoholic beverage to a person under

130the age of 21, in violation of Section 562.11(1)(a), Florida

140Statutes, as alleged in the Administrative Action issued June 1,

1501998?

151PRELIMINARY STATEMENT

153The Department of Business and Professional Regulation,

160Division of Alcoholic Beverages and Tobacco served N.W.S. Food &

170Gas d/b/a Time Saver #9 with an administrative complaint alleging

180their agent, employee, or servant, Kamel Beshara Goor, did sell,

190serve, or give an alcoholic beverage to a person under the age of

20321, contrary to Section 562.11(1)(a), Florida Statutes.

210Respondent timely requested a formal hearing, and Petitioner

218referred this matter to the Division of Administrative Hearings

227on August 3, 1998.

231At formal hearing, convened on November 9, 1998, Petitioner

240presented the oral testimony of Agent William K. Townsend, of the

251Division; Deputy Vernon Willis, of the Leon County Sheriff's

260Office; and Eric Von Strosnider, a high school student working

270undercover for the Division. Petitioner had a photograph of

279Strosnider, taken on the date of the alleged illegal purchase,

289May 29, 1998, admitted in evidence.

295Respondent presented the oral testimony of Kamel Beshara

303Goor.

304No transcript was provided. All timely filed Proposed

312Findings of Fact and Conclusions of Law have been considered in

323preparation of this Recommended Order.

328FINDINGS OF FACT

3311. At all times relevant and material to this proceeding,

341Respondent held license number 47-02960, series 2-APS,

348authorizing the sale of alcoholic beverages on the premises of

358Timesaver #9, located at 2415 Jackson Bluff Road, Tallahassee,

367Leon County, Florida.

3702. Kamel Beshara Goor is the sole corporate officer and

380owner of Timesaver #9.

3843. On the evening of May 29, 1998, Eric Von Strosnider

395entered the licensed premises in an undercover capacity on behalf

405of Petitioner Agency. Mr. Strosnider was born February 18, 1981,

415and carried a valid driver's license showing his correct birth

425date.

4264. Mr. Strosnider removed a single can of "Bud Lite" beer

437from the beer section of the store and presented it to Mr. Goor

450for purchase. Mr. Strosnider remembered clearly he picked up a

"460Bud Lite" because that was the type of beer he always selected

472during an attempted undercover buy. He paid for the "Bud Lite"

483and left the store. He immediately met with his Agency contact.

4945. Mr. Strosnider's appearance in court and as evidenced by

504his photograph taken on May 29, 1998, was such that an ordinarily

516prudent person would wish to determine that his age was, in fact,

528over 21, before selling him an alcoholic beverage.

5366. Mr. Strosnider testified that Mr. Goor might have asked

546him if he had an "ID," but he was certain that Mr. Goor did not

561ask to see his "ID." Mr. Strosnider had his driver's license

572with his correct birth date with him, but since he was not asked

585to present it, he did not provide any identification to Mr. Goor.

5977. Leon County Sheriff's Deputy Vernon Willis, who was

606dressed in plain clothes and present in the store, witnessed Mr.

617Strosnider's purchase of a can labeled "beer" but did not hear

628any request for identification.

6328. Mr. Goor did not remember asking for identification. He

642did not recognize Mr. Strosnider in court and denied any sale to

654Mr. Strosnider. He clearly testified that he would not sell

664alcohol to someone who appeared under thirty years of age if he

676or she said they had identification without checking that

685identification. However, with some vacillation, he also stated

693that his standard operating procedure is to ask for

702identification, and if the customer reaches for identification,

710he does not need to read it, but if a customer makes any excuse

724about not having identification with him or her, Mr. Goor refuses

735to sell. He finally said that if he sees the identification and

747the customer is under 21 years of age, he does not sell alcoholic

760beverages to him.

7639. Upon the totality of the evidence and the respective

773candor and demeanor of the witnesses, I find that the sale of

785beer to a minor under the age of 21 occurred without any

797misleading by the minor.

801CONCLUSIONS OF LAW

80410. The Division of Administrative Hearings has

811jurisdiction over the parties and subject matter of this cause,

821pursuant to Section 120.57(1), Florida Statutes.

82711. Section 561.29, Florida Statutes, provides that the

835Division is given full power and authority to revoke or suspend a

847beverage license under the Beverage Law when it is determined

857upon sufficient cause appearing that the licensee or his or her

868agents, officers, servants, or employees on the licensed premises

877violated any of the laws of this State or of the United States.

89012. Section 562.11, Florida Statutes (1997), provides:

897(1)(a) It is unlawful for any person to sell,

906give, serve, or permit to be served alcoholic beverages

915to a person under 21 years of age or to permit a person

928under 21 years of age to consume such beverages on the

939licensed premises. Anyone convicted of violation of

946the provisions hereof is guilty of a misdemeanor of the

956second degree, punishable as provided in s. 775.082 or

965s. 775.083.

96713. There is no evidence herein that Mr. Goor has been

978criminally prosecuted or convicted of a misdemeanor under Section

987562.11(1)(a), Florida Statutes.

99014. Section 562.47(2), Florida Statutes, provides:

996(2) Proof that the beverage in question was

1004contained in a container labeled "beer," "ale," "malt

1012liquor," "malt beverage," "wine," or "distilled

1018spirits" or with other similar name; and which bears

1027the manufacturer's insignia, name, or trademark is

1034prima facie evidence that such beverage is an alcoholic

1043beverage as defined in s. 561.01.

104915. Rule 61A-3.052, Florida Administrative Code, provides

1056that it is a defense to a violation of Section 562.11(1)(a),

1067Florida Statutes, "if the underage person falsely evidenced that

1076he was of legal age to purchase the alcoholic beverage,

1086cigarettes, or tobacco product or consume the alcoholic beverage

1095product and the appearance of the person was such that an

1106ordinarily prudent person would believe that person is of legal

1116age to purchase or consume those products, and if the licensee

1127attempted to verify the person's age by checking one of the

1138following forms of identification . . ." Florida Administrative

1147Rule 61A-3.052 (Emphasis Supplied).

115116. Rule 61A-3.052, Florida Administrative Code, requires

1158that a person violating these laws satisfy all of the

1168requirements of the provided defenses. Even by his own

1177testimony, Mr. Goor did not perform all of the acts required.

118817. Clear and convincing evidence was presented that

1196without the proper precautions, Mr. Goor sold a "Bud- Lite" beer

1207to Mr. Strosnider, who was under the age of twenty-one at the

1219time of the sale. See Ferris v. Turlington , 510 So. 2d 292 (Fla.

12321987).

123318. Rule 61A-2.022, Florida Administrative Code, contains

1240the Agency's penalty guidelines. The penalty guideline for a

1249violation of Section 562.11, Florida Statutes, sale of alcoholic

1258beverages to persons under the age of 21, is a seven-day license

1270suspension and a $1,000 civil penalty.

1277RECOMMENDATION

1278Upon the foregoing findings of fact and conclusions of law,

1288it is

1290RECOMMENDED that the Department of Business and Professional

1298Regulation, Division of Business and Professional Regulation,

1305Division of Alcoholic Beverages and Tobacco enter a Final Order

1315suspending Respondent's alcoholic beverage license number 47-

132202960, series 2-APS, for seven days, and imposing a civil penalty

1333in the amount of $1,000.

1339DONE AND ENTERED this 8th day of January, 1999, in

1349Tallahassee, Leon County, Florida.

1353___________________________________

1354ELLA JANE P. DAVIS

1358Administrative Law Judge

1361Division of Administrative Hearings

1365The DeSoto Building

13681230 Apalachee Parkway

1371Tallahassee, Florida 32399-3060

1374(850) 488-9675 SUNCOM 278-9675

1378Fax Filing (850) 921-6847

1382www.doah.state.fl.us

1383Filed wi th the Clerk of the

1390Division of Administrative Hearings

1394this 8th day of January, 1999.

1400COPIES FURNISHED:

1402Barry Kling, Esquire

1405Department of Business

1408and Professional Regulation

14111940 North Monroe Street

1415Tallahassee, Florida 32399-1007

1418J. Joseph Hughes, Esquire

14221017-A Thomasville Road

1425Tallahassee, Florida 32303

1428Richard Boyd, Director

1431Division of Alcoholic

1434Beverages and Tobacco

1437Department of Business and

1441Professional Regulation

1443Northwood Centre

14451940 North Monroe Street

1449Tallahassee, Florida 32399-0700

1452Lynda L. Goodgame, General Counsel

1457Department of Business and

1461Professional Regulation

1463Northwood Centre

14651940 North Monroe Street

1469Tallahassee, Florida 32399-0700

1472NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1478All parties have the right to submit written exceptions within 15

1489days from the date of this Recommended Order. Any exceptions to

1500this Recommended Order should be filed with the agency that will

1511issue the final order in this case.

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Date
Proceedings
Date: 02/22/1999
Proceedings: Final Order rec`d
PDF:
Date: 02/12/1999
Proceedings: Agency Final Order
PDF:
Date: 02/12/1999
Proceedings: Recommended Order
PDF:
Date: 01/08/1999
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 11/09/98.
Date: 11/20/1998
Proceedings: Respondent`s Proposed Recommended Order filed.
Date: 11/19/1998
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 11/09/1998
Proceedings: CASE STATUS: Hearing Held.
Date: 10/09/1998
Proceedings: (Joint) Prehearing Stipulation(filed via facsimile).
Date: 08/20/1998
Proceedings: Order of Prehearing Instructions sent out.
Date: 08/20/1998
Proceedings: Notice of Hearing sent out. (hearing set for 11/9/98; 9:30am; Tallahassee)
Date: 08/17/1998
Proceedings: (Petitioner) Response to Initial Order filed.
Date: 08/11/1998
Proceedings: Initial Order issued.
Date: 08/04/1998
Proceedings: Agency Referral Letter; Request for Hearing; Administrative Action filed.

Case Information

Judge:
ELLA JANE P. DAVIS
Date Filed:
08/04/1998
Date Assignment:
08/11/1998
Last Docket Entry:
02/22/1999
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

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