99-002237 Division Of Alcoholic Beverages And Tobacco vs. Sheauray, Inc., D/B/A Sheauray, Inc.
 Status: Closed
Recommended Order on Wednesday, September 8, 1999.


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Summary: Petitioner proved that Respondent`s sole officer and shareholder sold a 12-pack of alcoholic beer to a 16-year-old without asking his age or asking for identification.

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. 99-2237

33)

34SHEAURAY, INC., )

37)

38Resp ondent. )

41______________________________)

42RECOMMENDED ORDER

44Robert E. Meale, Administrative Law Judge of the Division of

54Administrative Hearings, conducted the final hearing in Sarasota,

62Florida, on August 17, 1999.

67APPEARANCES

68For Petitioner: Ruth Nicole Selfridge

73Assistant General Counsel

76Department of Business and

80Professional Regulation

821940 North Monroe Street

86Tallahassee, Florida 32399-1007

89For Respondent: Mei-Rong Manley

93President

94Sheauray, Inc.

961201 14th Stree t, West

101Bradenton, Florida 34205

104STATEMENT OF THE ISSUE

108The issue is whether Respondent sold an alcoholic beverage

117to a person under 21 years of age, in violation of Section

129562.11(1)(a), Florida Statutes.

132PRELIMINARY STATEMENT

134By Administrative Action dated March 24, 1999, Petitioner

142alleged that Respondent sold one 12-pack of Budweiser alcoholic

151beer to a person under 21 years of age.

160By request for hearing, Respondent stated that the purchaser

169appeared to be over 25 years old.

176At the hearing, Petitioner called three witnesses and

184offered into evidence three exhibits. Respondent called one

192witness and offered into evidence no exhibits. All exhibits were

202admitted.

203The court reporter filed the Transcript on August 27, 1999.

213FINDINGS OF FACT

2161. Petitioner has granted Respondent license number 51-

22402167, 1APS, for the sale of alcoholic beverages. Respondent

233received its first temporary license for the sale of alcoholic

243beverages on November 24, 1997. The license authorizes

251Respondent to resell package sales of only beer, as well as other

263alcoholic beverages under six percent alcohol by volume.

2712. Respondent's sole officer and shareholder is Mei-Rong

279Manley. Respondent operates a gas station at 1201 4th Street

289West in Bradenton. On the day in question, Ms. Manley was the

301sole employee present.

3043. K. W. was born on February 23, 1983. In March 1999, he

317was six feet, two inches tall and weighed 160 pounds.

3274. Petitioner randomly selected Respondent's store for an

335undercover purchase. Petitioner had not previously received a

343complaint that Respondent was selling alcoholic beverages to

351underage persons. The record does not reveal a prior instance of

362an underaged sale of alcoholic beverages by Respondent.

3705. On March 19, 1999, K. W. entered Respondent's store,

380walked directly to the beer cooler, and picked up a 12-pack of

392Budweiser alcoholic beer. He then carried the 12-pack of beer to

403the checkout counter.

4066. Shortly after K. W. entered the store, one of

416Petitioner's plainclothes agents entered the store, posing as a

425customer, but secretly observing the situation. There were no

434other persons in the store besides Ms. Manley, K. W., and the

446agent.

4477. When K. W. reached the checkout counter, he laid down

458the 12-pack of beer. Ms. Manley stated the purchase price of the

470beer as $8.55. K. W. gave her a larger sum in currency, and

483Ms. Manley returned to him the proper change. K. W. then left

495the store with the beer. He had been in the store 3-4 minutes.

5088. At no time did Ms. Manley ask K. W. how old he was. At

523no time did Ms. Manley ask K. W. to produce identification.

5349. Ms. Manley also claims that she was distracted when

544making the sale to K. W. She alternatively claims that she was

556concerned that the plainclothes agent was preparing to steal

565something and that she was engrossed in doing bookkeeping when

575K. W. approached the counter. The evidence does not support

585these alternative claims, which are somewhat conflicting.

59210. Ms. Manley claims to have believed that K. W. was well

604past 21 years of age. A native of Taiwan, Ms. Manley has resided

617in the United States for the past 15 years. Her belief was

629unreasonable.

63011. While making the purchase, K. W. wore a dark Calvin

641Klein t-shirt and shorts. He is a tall person, but not of

653considerable weight. Moreover, his youthful face and manner of

662presenting himself do not suggest that he is over 21 years of

674age. A diligent merchant of alcoholic beverages could not have

684mistakenly assumed that K. W. was over five years older than the

69616 years that he was at the time of the purchase.

707CONCLUSIONS OF LAW

71012. The Division of Administrative Hearings has

717jurisdiction over the subject matter. Section 120.57(1), Florida

725Statutes. (All references to Sections are to Florida Statutes.

734All references to Rules are to the Florida Administrative Code.)

74413. Section 561.29(1)(a) provides that Petitioner may

751revoke or suspend a license for the violation of any law.

762Section 562.111(1) prohibits the possession of alcoholic

769beverages by anyone under 21 years of age.

77714. Petitioner must prove the material allegations by clear

786and convincing evidence. Pic N' Save Central Florida, Inc., v.

796Department of Business and Professional Regulation , 601 So. 2d

805245 (Fla. 1st DCA 1992). The court in this case held that the

818licensee is held to a "reasonable standard of diligence" and

828required "culpable" responsibility so that the violation is due

837to the licensee's "own negligence, intentional wrongdoing, or

845lack of diligence."

84815. Petitioner has proved by clear and convincing evidence

857that Respondent, through its sole officer and shareholder, failed

866to exercise due diligence in selling a 12-pack of alcohol beer to

878a 16-year old boy, who, except for his height, did not look

890significantly older than 16 years of age. In any event, he did

902not look 21 years of age.

90816. Rule 61A-2.022(11) provides that the penalty for a

917first violation of Section 562.11 is $1000 and a seven-day

927license suspension. Rule 61A-2.022(7) provides that "[a] ll civil

936penalties may be substituted with license or permit suspensions

945using the ratio of 1 day for each $50."

954RECOMMENDATION

955It is

957RECOMMENDED that the Division of Alcoholic Beverages and

965Tobacco enter a final order finding Respondent guilty of

974violating Section 562.11(1)(a) and imposing an administrative

981fine of $1000 and a license suspension of seven days; provided,

992however, that Respondent may elect to reduce the fine and add to

1004the suspension at the ratio of $50 of fine for one day of

1017suspension, so that, for example, she may eliminate the fine

1027altogether by accepting a suspension of 27 days (7 days provided

1038by rule plus the 20 additional days to reduce the fine to 0).

1051DONE AND ENTERED this 8th day of September, 1999, in

1061Tallahassee, Leon County, Florida.

1065___________________________________

1066ROBERT E. MEALE

1069Administrative Law Judge

1072Division of Administrative Hearings

1076The DeSoto Building

10791230 Apalachee Parkway

1082Tallahassee, Florida 32399-3060

1085(850) 488-9675 SUNCOM 278-9675

1089Fax Filing (850) 921-6847

1093www.doah.state.fl.us

1094Filed with the Clerk of the

1100Division of Administrative Hearings

1104this 8th day of September, 1999.

1110COPIES FURNISHED:

1112Joseph Martelli, Director

1115Division of Alcoholic Beverages

1119and Tobacco

1121Department of Business and

1125Professional Regulation

11271940 North Monroe Street

1131Tallahassee, Florida 32399-0792

1134William Woodyard, General Counsel

1138Department of Business and

1142Professional Regulation

11441940 North Monroe Street

1148Tallahassee, Florida 32399-0792

1151Ruth Nicole Selfridge

1154Assistant General Counsel

1157Department of Business and

1161Professional Regulation

11631940 North Monroe Street

1167Tallahassee, Florida 32399-1007

1170Mei-Rong Manley

1172President

1173Sheauray, Inc.

11751201 14th Street, West

1179Bradenton, Florida 34205

1182NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1188All parties have the right to submit written exceptions within 15

1199days from the date of this recommended order. Any exceptions to

1210this recommended order must be filed with the agency that will

1221issue the final order in this case.

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PDF
Date
Proceedings
Date: 10/29/1999
Proceedings: Final Order filed.
PDF:
Date: 10/21/1999
Proceedings: Agency Final Order
PDF:
Date: 10/21/1999
Proceedings: Recommended Order
Date: 09/13/1999
Proceedings: Respondent`s Proposed Recommended Order filed.
PDF:
Date: 09/08/1999
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 8/17/99.
Date: 09/07/1999
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 08/27/1999
Proceedings: Transcript of Proceedings filed.
Date: 08/20/1999
Proceedings: (M. Manley) Case Progress w/cover letter filed.
Date: 08/17/1999
Proceedings: Respondents Admissions filed.
Date: 08/17/1999
Proceedings: CASE STATUS: Hearing Held.
Date: 07/30/1999
Proceedings: (R. Selfridge) Notice of Appearance and Substitution of Counsel for Department of Business and Professional Regulation (filed via facsimile).
Date: 07/12/1999
Proceedings: (Ruth Nicole Selfridge) Amended Certificate of Service (filed via facsimile).
Date: 07/12/1999
Proceedings: (Petitioner) Request for Production (filed via facsimile).
Date: 07/12/1999
Proceedings: Notice of Serving Petitioner`s First Set of Request for Admissions, Interrogatories to Respondent and Production of Documents; Petitioner`s Request for Admissions (filed via facsimile).
Date: 06/30/1999
Proceedings: Order Granting Continuance and Amended Notice of Hearing sent out. (hearing set for 9:00am; Sarasota; 8/17/99)
Date: 06/29/1999
Proceedings: (Petitioner) Motion for Continuance (filed via facsimile).
Date: 06/01/1999
Proceedings: Notice of Hearing sent out. (hearing set for 9:00am; Sarasota; 8/11/99)
Date: 05/27/1999
Proceedings: Joint Response to Initial Order filed.
Date: 05/24/1999
Proceedings: Initial Order issued.
Date: 05/18/1999
Proceedings: Agency Referral Letter; Request for Hearing; Administrative Action filed.

Case Information

Judge:
ROBERT E. MEALE
Date Filed:
05/18/1999
Date Assignment:
05/24/1999
Last Docket Entry:
10/29/1999
Location:
Sarasota, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

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