99-003434 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Johnny Dewayne Bartlett, D/B/A M &Amp; M General Status: Closed Recommended Order on Tuesday, December 14, 1999.

Summary: Evidence supported finding that Respondent sold beer to a person under 21 years of age; license disciplined.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 99-3434

)

JOHNNY DEWAYNE BARTLETT, )

d/b/a M & M GENERAL, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on October 26,

1999, in Bonifay, Florida.

APPEARANCES

For Petitioner: Ruth Nicole Selfridge, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Mark D. Davis, Esquire

684 Baldwin Avenue, Suite One

DeFuniak Springs, Florida 32433-1938

STATEMENT OF THE ISSUE

The issue is whether Respondent's beverage license should be

disciplined for selling alcoholic beverages to a minor on a

Sunday, as alleged in the Administrative Action served by

Petitioner on March 3, 1998.

PRELIMINARY STATEMENT

This matter began on March 3, 1998, when Petitioner,

Department of Business and Professional Regulation, Division of

Alcoholic Beverages and Tobacco, served an Administrative Action

against Respondent, Johnny DeWayne Bartlett, doing business under

the name of M & M General, alleging that on March 1, 1998,

Respondent unlawfully sold alcoholic beverages to a person under

21 years of age, and by making the sale on a Sunday, he had also

violated a Holmes County ordinance. Respondent denied the

allegation and requested a formal hearing to contest the

preliminary action. The matter was referred by Petitioner to the

Division of Administrative Hearings on August 10, 1999, with a

request that an Administrative Law Judge be assigned to conduct a

formal hearing.

By Notice of Hearing dated August 26, 1999, a final hearing

was scheduled on October 26, 1999, in Bonifay, Florida. At the

final hearing, Petitioner presented the testimony of Clinton I.

Williams, an electrician; Harry Hamilton, an investigator with

the Holmes County Sheriff's Department; and Frederick Miller, a

former agency investigator. Also, it offered Petitioner's

Exhibits 1-5. All exhibits were received in evidence.

Respondent testified on his own behalf and offered Respondent's

Exhibits 1-3, which were received in evidence. Finally, at

Petitioner's request, the undersigned took official notice of the

statutes which govern this dispute, Rule 61A-2.022, Florida

Administrative Code, the 1998 calendar, and Holmes County

Ordinance No. 80-7.

The Transcript of the hearing was filed on November 23,

1999. Proposed Findings of Fact and Conclusions of Law were

filed by Petitioner and Respondent on December 3 and 7, 1999,

respectively, and they have been considered by the undersigned in

the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. In this disciplinary action, Petitioner, Department of

Business and Professional Regulation, Division of Alcoholic

Beverages and Tobacco (Division), seeks to impose penal sanctions

on the license of Respondent, Johnny DeWayne Bartlett, doing

business as M & M General, on the ground that on Sunday, March 1,

1998, he violated state law and a local ordinance by selling

alcoholic beverages on his licensed premises to a person under

21 years of age. Respondent has denied the charge and requested

a formal hearing to contest this allegation.

2. Respondent is subject to the regulatory jurisdiction of

the Division, having been issued license no. 40-00312/ 1APS. That

license allows Respondent to make packaged beer sales at his

convenience store located on County Road 181 and Highway 185 in

Leonia, a small community in the northwestern section of Holmes

County, Florida. By virtue of Holmes County Ordinance No. 80-7,

however, Respondent is prohibited from making such sales on

Sundays.

3. On Sunday, March 1, 1998, Clinton I. Williams, then

nineteen years of age, was employed as a paid "volunteer" for the

Division for the purpose of attempting to purchase beer at

Respondent's store. For his services, Williams was paid $20.00

by the Division.

4. Williams was given instructions by a Division

investigator to attempt to purchase a six-pack of beer. Williams

was also told that if the clerk asked for an identification card

(ID), he should politely set the beer down and leave the

premises.

5. Around 9:30 a.m. on March 1, 1998, Williams entered the

store and walked to the rear where the coolers were located.

Because it was a Sunday, the doors to the coolers where the beer

was on display "were chained up." Even though there was a "NO

TRESPASSING VIOLATORS WILL BE PROSECUTED" sign on an unlocked

side door which led to the rear of the coolers, Williams

proceeded through the side door and was able to gain access to

the coolers. He then "got a six pack of Natural Light, turned

around and walked back to the counter."

6. Respondent was on duty at the front check-out counter.

When Williams placed the beer on the counter, Respondent asked

him where he got the beer. Williams replied that he took it out

of the cooler, and Respondent admonished him not to do that

anymore.

7. Williams handed Respondent a ten dollar bill, and

Respondent took the money, bagged the beer, and handed Williams

his change. The sale was not rung up on the cash register, and

Williams was not asked for an ID to prove that he was at least

21 years old. Williams then carried the beer to a Division agent

and an investigator for the Holmes County Sheriff's Department,

who were waiting across the street in a parked vehicle.

Respondent was arrested a short time later.

8. In mitigation, Respondent says that he is a diabetic,

and this was not disputed. Respondent maintained that he was

extremely upset a week earlier when "a young man" entered the

store, walked inside his cooler as Williams did, and got a six

pack of beer. When Respondent asked him what he was doing, the

customer "went beserk," threw down the beer, and "took off,"

causing Respondent to become extremely frightened. When Williams

approached him a week later wanting to purchase beer, Respondent

says that he feared a similar confrontation, that his "sugar went

through the floor," and that he just "blank[ ed] out." Although

Respondent acknowledges that he may have put the beer in the bag,

taken the money, and given change, he "can't say for sure" that

this occurred due to his diabetic condition. Assuming this

scenario to be true, which the undersigned finds highly unlikely,

it only constitutes a mitigating consideration in assessing an

appropriate penalty and does not excuse Respondent from complying

with the law.

9. At hearing, Respondent introduced into evidence the cash

register tapes for sales made on March 1, 1998. They do not

reflect a sale of beer in the amount of $3.54 on the morning when

the event occurred. However, this merely confirms that the sale

was not rung up on the cash register.

10. In his post-hearing filing, Respondent also maintains

that Petitioner has failed to establish that the sale actually

occurred in Holmes County, Florida. This contention is rejected

since the evidence clearly and convincingly shows that Respondent

is licensed to do business at "C181 & Hwy 185, Leonia, FL," which

lies in Holmes County, Florida, and that the illicit sale

occurred at the "M and M Grocery" at the "intersection of [1]81

and 185."

11. There is no evidence that Respondent has ever been

charged with, or convicted of, violating any other regulations or

statutes while operating his store over the past 4 years.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

13. As the party seeking to impose penal sanctions on

Respondent's license, Petitioner bears the burden of proving the

allegations in the charging document by clear and convincing

evidence. See , e.g. , Pic N' Save Central Fla., Inc. v. Dep't of

Bus. And Prof. Reg., Div. of Alco. Bev. and Tobacco , 601 So. 2d

245, 249 (Fla. 1st DCA 1992).

14. The Administrative Action alleges that Respondent

violated Section 562.11(1)(a), Florida Statutes (1997), by

selling alcoholic beverages to a person under the age of 21, and

that he violated Section 561.29(1)(a), Florida Statutes (1997),

by contravening a county regulation which prohibits the sale of

beer on Sundays.

15. By clear and convincing evidence, Petitioner has

established that Respondent has violated the two cited statutes,

as alleged in the Administrative Action. This being so, it is

necessary to determine an appropriate penalty.

16. Rule 61A-2.022(11), Florida Administative Code,

prescribes the penalty guidelines to be imposed upon alcoholic

beverage licensees. For a first-time violation of Section

562.11(1)(a), Florida Statutes, the rule calls for a

$1,000.00 fine and a 7-day suspension of the license. For the

first-time violation of Section 561.29(1)(a), Florida Statutes,

involving the commission of a misdemeanor by the licensee, the

rule calls for a $250.00 fine. Subsection (9) of the same rule

provides, however, that "[n]o stipulation or order may exceed

$1,000 for violations arising out of a single transaction." In

other words, where the licensee is involved in a single illicit

transaction which constitutes a violation of more than one

statute, as is the case here, the Division will not impose a fine

exceeding $1,000.00. Finally, unlike those adopted by some other

agencies, the Division's rule does not identify any aggravating

and mitigating considerations which may be taken into account in

assessing a penalty. In this case, other than a blemish-free

record on the part of Respondent since receiving his license,

there are no other considerations.

15. In its proposed order, Petitioner suggests that the

imposition of a fine totaling $1,250.00 is appropriate, together

with a 7-day suspension of Respondent's license, as called for by

the rule. The suggested fine, however, exceeds the $1,000.00

limitation prescribed in Subsection (9) of the rule. Therefore,

a $1,000.00 fine and 7-day suspension are appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Division of Alcoholic Beverages and

Tobacco enter a final order determining that Respondent has

violated Sections 561.29(1)(a) and 562.11(1)(a), Florida

Statutes, as charged in the Administrative Action, and that his

license no. 40-00312/ 1APS be suspended for 7 days and that he pay

a $1,000.00 fine.

DONE AND ENTERED this 14th day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of December, 1999.

COPIES FURNISHED:

Joseph Martelli, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Ruth Nicole Selfridge, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Mark D. Davis, Esquire

694 Baldwin Avenue, Suite One

DeFuniak Springs, Florida 32433-1938

Barbara D. Auger, 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.