02-002737 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Lake Supermarket, Inc., D/B/A Lake Supermarket Status: Closed Recommended Order on Tuesday, December 31, 2002.

Summary: Respondent`s agent sold a can of beer, an alcoholic beverage, to a minor. Respondent`s agent was negligent and failed to exercise reasonable diligence in preventing the sale of the alcoholic beverage to a minor. Fine and suspension of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, ) Case No. 02 - 2737

)

vs. )

)

LAKE SUPERMARKET, INC., d/b/a )

LAKE SUPERMARKET, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held by video

teleconference in this case on October 8, 2002, at connecting

sites in West Palm Beach and Tallahassee, Florida, before

Errol H. Powell, a des ignated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Chad D. Heckman, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Str eet

Tallahassee, Florida 32399 - 2202

For Respondent: Valentin Rodriguez, Jr., Esquire

Valentin Rodriguez, P.A.

318 Ninth Street

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the

Administrative Action and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Division of Alcoholic Beverages and Tobacco (Petition er), filed a

one - count Administrative Action against Lake Supermarket, Inc.,

d/b/a Lake Supermarket (Respondent). Petitioner charged

Respondent with violating Subsection 562.11(1)(a), Florida

Statutes, as follows: "On or about 4 - 17 - 02, you, Lake

Supermar ket, Inc. d/b/a Lake Supermarket Inc., or your agent,

employee, Armando Rodriguez, did sell, serve, or give an

alcoholic beverage on your licensed premises to Investigative

Aide #99, a person under the age of 21." Respondent disputed the

allegations of fa ct in the Administrative Action and requested a

hearing. This matter was referred to the Division of

Administrative Hearings on July 10, 2002.

At the hearing, Petitioner presented the testimony of two

witnesses and entered five exhibits (Petitioner's Exh ibits

numbered 1 through 4, and 6) into evidence. Respondent presented

the testimony of its owner, Armando Rodriguez, and entered one

exhibit (Respondent's Exhibit numbered 2) into evidence.

A transcript of the hearing was ordered. At the parties'

reques t, the time for filing post - hearing submissions was set for

more than ten days following the filing of the transcript. The

Transcript, consisting of one volume, was filed on October 16,

2002. Both parties timely filed post - hearing submissions, which

were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was licensed by

Petitioner, having been issued license number 60 - 01280, Series 1 -

APS. No dispute exists that such license permits Respo ndent to

make packaged sales of beer and wine at its establishment.

2. Respondent's last known address is 148 West Avenue A,

Belle Glade, Florida. Respondent's establishment is a

convenience store.

3. On or about April 17, 2002, Jeremiah Alexander Maxie

went to Respondent's establishment for the specific purpose of

attempting to purchase beer.

4. Mr. Maxie is employed as an investigative aide for

Petitioner. At the time that he visited Respondent's

establishment, Mr. Maxie was under 21 years of age; he was 17

years of age, having been born on August 10, 1984. Mr. Maxie did

nothing to alter his appearance in an attempt to affect his age.

5. Mr. Maxie attempted to purchase beer at twelve other

locations on April 17, 2002. He was paid $35 by Petitioner for

that day.

6. Mr. Maxie entered Respondent's establishment at

approximately 4:50 p.m. Shortly thereafter, approximately 20

seconds later, Petitioner's Special Agent Danny Stoops, who was

undercover, entered Respondent's establishment. Agent Stoops

o bserved the actions of Mr. Maxie.

7. Agent Stoops is a 24 - year veteran with Petitioner. He

gave Mr. Maxie instructions as to what to do. Agent Stoops

instructed Mr. Maxie to attempt to purchase a Budweiser product

and, if the clerk requested identificat ion, for Mr. Maxie to

politely set the beer down and leave.

8. Mr. Maxie proceeded to the rear of Respondent's

establishment to the coolers. He removed a can of beer, a

Budweiser product, and proceeded to the cash register. At the

time of hearing, Mr. M axie could not recall the particular type

of Budweiser product.

9. Agent Stoops observed Mr. Maxie proceed from the coolers

to the cash register although he did not observe the product that

Mr. Maxie had obtained.

10. Mr. Maxie gave the cashier/clerk, Ar mando Rodriguez,

who is Respondent's owner, U.S. Currency as payment for the beer.

Mr. Rodriguez placed the Budweiser product in a paper bag and

gave Mr. Maxie a receipt, but Mr. Maxie did not look at the

receipt. Mr. Maxie departed Respondent's establis hment.

11. At the time of hearing, Mr. Maxie could not recall the

denomination of currency that he gave to Mr. Rodriguez or the

amount that he had paid for the beer.

12. Agent Stoops observed Mr. Maxie give Mr. Rodriguez the

currency but did not observe the denomination.

13. Agent Stoops departed Respondent's establishment

approximately 15 to 20 feet behind Mr. Maxie. When they were

outside, the purchased Budweiser product was given to Agent

Stoops by Mr. Maxie.

14. Both Agent Stoops and Mr. Maxie ini tialed the paper bag

into which Mr. Rodriguez had placed the Budweiser product. Agent

Stoops placed the Budweiser product in an evidence bag, tagged it

with an evidence receipt bearing a control number, and secured

the bagged evidence in the trunk of his vehicle. Agent Stoops

removed the bagged evidence from the trunk of his vehicle and

placed it in Petitioner's evidence vault.

15. For hearing, Agent Stoops retrieved the bagged evidence

from the evidence vault. The Budweiser product presented at

hearing was a can of Bud Light Beer, which was still in the paper

bag in which the beer was placed at the time of purchase.

16. No challenge to the chain of custody of the can of beer

was made and no problem exists as to the chain of custody of the

can of beer.

17. No receipt for the purchase of the Budweiser product

was included in the bagged evidence. Agent Stoops could not

independently recall that a receipt was presented to him by

Mr. Maxie.

18. Respondent entered into evidence cash register receipts

for April 17, 2002, which do not reflect the purchase of any

alcoholic beverage. However, the cash register receipts reflect,

among other things, "taxable" and "grocery" items, not the

particular items themselves, and "meat"; thereby, the cash

register receip ts differentiate only between "grocery" and

"taxable" and "meat" items.

19. Further, the cash register receipts are numbered 058616

through 058619, with times of day reflecting 16:05 through 16:09,

and 058624 through 058627, with times of day reflecting 1 6:46

through 16:52. Not included in the cash register receipts are

receipts numbered 058620 through 058623, with times of day

reflecting 16:10 through 16:45. With the missing numbered - cash

register receipts included, a total of 12 transactions were

compl eted, but only eight transactions were offered and admitted

into evidence. No explanation was presented for the missing

eight transactions.

20. Taking into consideration the overwhelming evidence of

the purchase of the Budweiser product by Mr. Maxie, not having a

receipt is insufficient to show that the beer - purchase

transaction did not occur. Moreover, the evidence is clear and

convincing that the beer - purchase transaction did occur.

21. The product purchased at Respondent's establishment by

Mr. Maxie was a can of beer, a Budweiser product, a Bud Light.

22. At the time of hearing, Mr. Rodriguez was 76 years of

age and had owned Respondent's establishment for 36 years. He is

Respondent's agent.

23. Mr. Rodriguez speaks Spanish. At the time of hearing ,

an interpreter was provided for him.

24. Mr. Rodriguez denies that he saw Mr. Maxie in

Respondent's establishment and denies that he sold any beer to

Mr. Maxie.

25. Mr. Rodriguez failed to realize to whom he sold the can

of beer. At the time Mr. Maxie purchased the can of beer from

Respondent's establishment, Mr. Rodriguez was engaged in a

conversation with another gentleman. Mr. Rodriguez did not ask

Mr. Maxie any questions or ask for his identification. Mr. Maxie

said nothing to suggest that he was 21 years of age or older. As

a matter of fact, no evidence was presented that any conversation

took place between Mr. Maxie and Mr. Rodriguez. The evidence

further suggests that Mr. Rodriguez paid very little attention to

Mr. Maxie even at the time of t he purchase of the beer.

26. Mr. Rodriguez did not knowingly and willfully sell the

can of beer to a minor, i.e., Mr. Maxie.

27. Mr. Rodriguez was negligent and failed to exercise

reasonable diligence in preventing the sale of the can of beer to

Mr. Maxi e.

28. No prior disciplinary action has been taken against

Respondent by Petitioner.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 12 0.569 and Subsection

120.57(1), Florida Statutes.

30. License revocation proceedings and proceedings

involving the levying of administrative fines are penal in

nature. The burden of proof is on the Petitioner to establish by

clear and convincing evidence the truthfulness of the allegations

in the Administrative Complaints. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1 987).

31. A licensee is charged with knowing the practice act

that governs his/her license. Wallen v. Florida Department of

Professional Regulation, Division of Real Estate , 568 So. 2d 975

(Fla. 3d DCA 1990).

32. Section 562.11, Florida Statutes, prov ides in pertinent

part:

(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.

(b) A licensee who violates paragraph (a)

shall have a complete defense to any civil

action ther efor, except for any

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 . . . .

33. Section 561.01, Florida Statutes, provides in pertinent

p art:

(4)(a) "Alcoholic beverages" means distilled

spirits and all beverages containing one - half

of 1 percent or more alcohol by volume.

(b) The percentage of alcohol by volume

shall be determined by measuring the volume

of the standard ethyl alcohol in t he beverage

and comparing it with the volume of the

remainder of the ingredients as though said

remainder ingredients were distilled water.

(5) "Intoxicating beverage" and

"intoxicating liquor" mean only those

alcoholic beverages containing more than

4.0 07 percent of alcohol by volume.

34. Section 562.47, Florida Statutes, provides in pertinent

part:

In all prosecutions for violations of the

Beverage Law:

* * *

(2) Proof that the beverage in question was

contained in a container labeled as "beer ,"

"ale," "malt liquor," "malt beverage,"

"wine," or "distilled spirits" or with other

similar name; and which bears the

manufacturer's insignia, name, or trademark

is prima facie evidence that such beverage is

an alcoholic beverage as defined in s.

561.01 .

(3) Any person or persons who by experience

in the past in the handling or use of

intoxicating liquors, or who by taste, smell,

or the drinking of such liquors has knowledge

as to the intoxicating nature thereof, may

testify as to his or her opinion wh ether such

beverage or liquor is or is not intoxicating,

and a verdict based upon such testimony shall

be valid.

35. The evidence is clear and convincing that the can of

beer, a Budweiser product, was an alcoholic beverage as defined

by Subsection 561.01 (4), Florida Statutes.

36. Further, the evidence is clear and convincing that

Mr. Rodriguez, Respondent's agent, sold an alcoholic beverage,

i.e., a can of beer, to a person under 21 years of age.

37. The mere selling of the alcoholic beverage to a perso n

under 21 years of age is insufficient, in and of itself, for

revocation or suspension of a beverage license. Lash, Inc. v.

Department of Business Regulation , 411 So. 2d 276 (Fla. 3d DCA

1982); Trader Jon, Inc. v. State Beverage Department , 119 So. 2d

73 5, 738 - 740 (Fla. 1st DCA 1960).

38. The evidence is not clear and convincing that

Mr. Rodriguez knowingly and willfully sold the can of beer to a

minor.

39. However, the evidence is clear and convincing that

Mr. Rodriguez was negligent and failed to exer cise reasonable

diligence in preventing the sale of the alcoholic beverage to

Mr. Maxie. Such conduct by Respondent's agent is subject to

discipline by Petitioner. Lash , supra ; Trader Jon , supra .

40. As to penalty, Section 561.29, Florida Statutes,

prov ides in pertinent part:

(1) The division is given full power and

authority to revoke or suspend the license of

any person holding a license under the

Beverage Law, when it is determined or found

by the division upon sufficient cause

appearing of:

(a) Vi olation by the licensee or his or her

or its agents, officers, servants, or

employees, on the licensed premises, or

elsewhere while in the scope of employment,

of any of the laws of this state or of the

United States, or violation of any municipal

or count y regulation in regard to the hours

of sale, service, or consumption of alcoholic

beverages or license requirements of special

licenses issued under s. 561.20, or engaging

in or permitting disorderly conduct on the

licensed premises, or permitting another on

the licensed premises to violate any of the

laws of this state or of the United States.

A conviction of the licensee or his or her or

its agents, officers, servants, or employees

in any criminal court of any violation as set

forth in this paragraph sha ll not be

considered in proceedings before the division

for suspension or revocation of a license

except as permitted by chapter 92 or the

rules of evidence.

41. For the sale of alcoholic beverages by a licensee or

its agent to a person under 21 years of age, Rule 61A - 2.022(11),

Florida Administrative Code, prescribes a penalty of a $1,000

fine and a 7 - day license suspension for first time offenders.

Petitioner's guidelines do not provide for mitigating or

aggravating circumstances.

42. Petitioner sugge sts the penalty for first time

offenders.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and Professional

Regulation, Division of Alcoholic Beverages and Tobacco enter a

fina l order:

1. Finding that Lake Supermarket, Inc., d/b/a Lake

Supermarket, violated Subsection 562.11(1)(a), Florida Statutes;

2. Imposing a fine of $1,000.00 payable within a time

deemed appropriate; and

3. Suspending the license of Lake Supermarket, I nc., d/b/a

Lake Supermarket, for seven days.

DONE AND ENTERED this 31st day of December, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of December, 2002.

COPIES FURNISHED :

Chad D. Heckman, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Str eet

Tallahassee, Florida 32399 - 2202

Valentin Rodriguez, Jr., Esquire

Valentin Rodriguez, P.A.

318 Ninth Street

West Palm Beach, Florida 33401

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1 940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Peter Williams, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Danny Stoops, Agent

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

400 North Congress Avenue, No. 150

West Palm Beach, Florida 33401

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to s ubmit 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.