03-000381 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Keen &Amp; Keen, Inc., D/B/A Kabuki Japanese Steakhouse Status: Closed Recommended Order on Thursday, July 31, 2003.

Summary: Petitioner proved Respondent negligently allowed a minor to obtain a beer, after checking her I.D. Not intentional or willful and first offense; $250 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0381

)

KEEN & KEEN, INC., )

d/b/a KABUKI JAPANESE )

STEAKHOUSE )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding

before P. Michael Ruff, duly - designated Administrative Law Judge

of the Division of Administrative H earings on May 20, 2003, in

Yulee, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Christina Pardieck, Esquire

Assistant General Counsel

Division of Alcoholic Beverages and

Tobacco

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Gary Barker, Esquire

Post Office Box 1177

Callahan, Florida 32011

STATEMENT OF THE ISSUES

The issues to be resolved in this proceedin g concern

whether the Respondent's beverage licensure should be subjected

to sanctions for allegedly selling alcoholic beverages to a

minor and what if any penalties should be imposed.

PRELIMINARY STATEMENT

This cause arose on November 4, 2002, when the P etitioner,

Department of Business and Profession Regulation, Division of

Alcoholic Beverages and Tobacco (Department) served a complaint

upon the Respondent, Keen & Keen, Inc., doing business as Kabuki

Japanese Steakhouse, alleging that on October 22, 2002 , the

Respondent unlawfully sold alcoholic beverages to a person under

21 years of age in violation of Florida law. The Respondent

denied the charges and requested a formal hearing to contest the

matter. The case was referred to the Division of Administr ative

Hearings and the undersigned administrative law judge for

conduct of a formal proceeding.

The cause came on for hearing as noticed. The hearing was

conducted on May 20, 2003, in Yulee, Florida. The Petitioner

presented the testimony of special agen ts Veronica Edwards and

Debra Riley, of the Division of Alcoholic Beverages and Tobacco

(Division) and Deidre Miller, and investigative aid(IA) employed

by the Petitioner to assist in identifying businesses who sell

alcoholic beverages to minors. The Peti tioner offered the

Petitioner's Exhibits one through five, all of which were

received into evidence, except for exhibit three. The

Respondent presented the testimony of Mr. Keen L. Wong, vice

president, secretary, and 49 percent shareholder of the

Respond ent corporation. The Respondent offered Exhibits one

through four. The Respondent's Exhibits one through three were

received into evidence. The parties requested a transcript of

the proceeding and availed themselves of the right to submit

proposed recom mended orders. The Proposed Recommended Orders

have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida

charged with regulating licensure, and practice under that

licensure, of alcoholic beverage - selling entities in the State

of Florida, including administration of the laws and rules

related to the selling of alcoholic beverages by restaurant

businesses.

2. The Respondent is an entity licensed and domiciled in

the State of Florida and authorized to sell alcoholic beverages

under license number 55 - 00306, Series 2 - COP. The Respondent is

subject to the Division's regulatory jurisdiction. The subject

license allows the Respondent to make sales "by the drink" for

consumption on the premises at the restaurant business located

at 1766 S. Eighth Street, Fernandina Beach, Florida.

3. On October 22, 2002, Ms. Deidre Kaye Miller, then 18

years of age, was employed as an I.A. by the Petitioner Agency

for the purpose of attempting t o purchase beer at the

Respondent's restaurant. She was paid a total of $35.00 for her

services as an undercover operative that day by the Division.

She was given instructions by Agent Edwards and Agent Maxwell to

attempt to purchase an alcoholic beverag e from the Respondent.

Ms. Miller was told that if asked for identification she was to

show her valid Florida Driver's License, if asked her age to

tell her correct age and not to engage in any extensive

conversation with anyone.

4. On October 22, 2002, Ms. Miller entered the restaurant

and walked to the left of the entrance where the bar was

located. A waitress asked what she wanted and she told her she

wanted a Corona (Beer).

5. After Ms. Miller ordered the beer from the waitress the

owner and Res pondent Mr. Wong came over and asked for her

identification. She provided her driver's license as an I.D. to

Mr. Wong. As he was checking her driver's license the waitress,

Tabitha Cornett, opened the Corona and set it on the counter so

that it would be ready when Mr. Wong approved giving Ms. Miller

the beer. The point on the bar where the beer was placed was

approximately 16 feet away from where Mr. Wong and Ms. Miller

were having the conversation about her I.D.

6. Mr. Wong viewed Ms. Miller's Driver License I.D. for 30

or 45 seconds. The driver's license had her correct name and

date of birth, which was in 1984, and a statement printed on the

license which said "Under 21 until 09 - 02 - 05."

7. Mr. Wong allowed the beer to be served to Ms. Miller.

Ms. Miller took the beer and placed it on a table near the bar.

She then indicated to the waitress that she was going to call

friends to meet her and walked outside the restaurant, leaving

the beer on the table.

8. In restaurant sales situations, IAs are in structed to

depart the premises once they have been served alcohol.

Generally payment will not be tendered because, in restaurant

situations, the law and licensure calls for consumption on the

premises and it is customary to consume the alcohol and pay fo r

at the end of one's stay at the restaurant. In the instant

situation neither Ms. Miller nor anyone else ever paid for the

beer in question. Mr. Wong acknowledged in a due diligence

statement taken at 5:30 p.m., on the day in question

October 22, 2002 (in evidence as Petitioner's Exhibit four) that

he checked the I.D. but he wasn't wearing his glasses and he

thought it said that Ms. Miller was born in 1964. He asked her,

"You were born in 64?" He said in his statement that

Ms. Miller did not reply to him and then he states (in his due

diligence statement) that he told her that she was too young for

that I.D. and again she said nothing. He again asked her if

this was her I.D. and she said nothing. He handed it back to

her. He then said i n the statement: "I did not want to insult

someone so I allowed it served." In other words he questioned

whether she was old enough based upon the I.D. he saw; believing

it to say 1964 because he did not have his glasses on, but also

believing that she a ppeared too young for that I.D.

9. Ms. Miller left the premises and Agent Edwards and

Agent Maxwell entered the premises and informed Mr. Wong that he

had just allowed service of alcohol to a minor. Thereafter Mr.

Wong was placed under arrest handcuffed , and taken to the Nassau

County Jail. Mr. Wong had never had any beverage - related

offense on his record prior to that time. No investigation or

prosecution concerning his business had ever occurred up to that

point. A criminal prosecution was institute d against him

concerning this same incident and facts, which resulted in a

jury verdict of acquittal.

10. The totality of the evidence shows that although Mr.

Wong did not actually serve Ms. Miller, he did allow a beer to

be served to her. She was under 21 years of age.

11. Mr. Wong testified that even though one person checks

identification, any employee can open a beer and place it on the

counter or service bar. Ms. Cornett did so in this case,

placing the beer at the far end of the service bar fr om where

Mr. Wong and Ms. Miller were conversing concerning her I.D.

This allows the beer to be ready once the person checking the

I.D. authorizes the sale. In the situation at hand, Ms. Cornett

opened the beer, placed in on the bar and Mr. Wong then wen t

through the door away from the bar into the main part of the

restaurant. Ms. Miller, the I.A., then took the beer from the

bar and placed it on the table and told Ms. Cornett that she was

going outside to meet her friends or to call her friends. After

that occurrence the other agents named above came in, explained

the situation to Mr. Wong, and arrested him during the course of

which discussion he made the above - referenced statement.

Mr. Wong never touched the beer in question and Ms. Cornett

never actually physically handed it to Ms. Miller, but both Mr.

Wong and Ms. Cornett allowed Ms. Miller to take the beer from

the bar and place it on her table, thus taking the beer into her

own custody and control at least temporarily, even though no

money was exchanged in return for the beer.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties hereto.

Sections 120.569 and 120.57(1), Florida Statutes.

13. The Petitioner Agency has the bur den in attempting to

impose penal sanctions on the Respondent's license, to prove its

allegations by clear and convincing evidence. Ferris v.

Turlington , 510 So. 2d 292, 294 (Fla. 1987), Pic N' Save Central

Florida, Inc., v. Department of Business and Pro fessional

Regulation, Division of Alcoholic Beverages and Tobacco , 601 So.

2d 245, 249 (Fla. 1st DCA 1992).

14. It is the responsibility of the licensee or his agents

to determine the age of all patrons prior to selling alcoholic

beverages to them. Lash, Inc., v. Department of Business and

Professional Regulation , 411 So. 2d 276 (Fla. 3d DCA 1982).

When engaging in such transactions, the licensee or his agents

must exercise a reasonable standard of diligence to ensure that

alcoholic beverages are not sol d to minors. Id . However, the

fact that a licensee or agent sold an alcoholic beverage to a

underage person is not sufficient, on its own, to subject the

licensee or its agent to sanctions. The sale must appear to

have been made "knowingly and willfully , or that it was made

negligently, without care to diligently attempt to prevent such

sales." Trader Jon, Inc., v. State Beverage Department , 119 So.

2d 735, 739 - 40 (Fla. 1st DCA 1960).

15. The complaint alleges that Respondent violated Section

562.11(1) (a), Florida Statutes, by serving alcoholic beverages

to a person under the age of 21 years. At all times material to

this case, Section 562.11(1)(a), Florida Statutes, has made it

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

served alc oholic beverages to a person under 21 years of

age. . . on the licensed premises."

16. The evidence clearly and convincingly establishes that

on the afternoon of October 22, 2002, on his licensed premises,

Keen L. Wong, served or permitted to be serve d alcoholic

beverages as defined in Section 561.01(4), Florida Statutes, by

negligently permitting service of a beer by allowing it to be

placed in front of a person under 21 years of age. This

apparently occurred because Mr. Wong was not wearing his eye

glasses at the time, could not properly read the I.D. and failed

to properly read the correct date of birth on Ms. Miller's

driver's license. He also allowed service because he did not

wish to insult her by disallowing it.

17. The evidence is clear and convincing that the I.A. in

question, Ms. Miller, did not falsely evidence that she was of

legal age to purchase or consume alcoholic beverages. She did

not have the appearance that would cause an ordinary prudent

person to believe her to be of legal age to purchase or consume

alcoholic beverages, which is why Mr. Wong probably initially

chose to check her I.D.

18. Mr. Wong's waitress, Ms. Cornett, actually placed the

beer in the reach of Ms. Miller on the bar so that it was ready

for service while the I .D. was being checked. It is true that

Mr. Wong himself did not serve the beer to Ms. Miller. However,

a ". . . licensee's culpable responsibility is measured in terms

of its own negligence and lack of diligence in supervising its

employees regarding ill egal sales." Thus Mr. Wong's failure to

recognize that Ms. Cornett had placed the beer in front of an

underage individual or at least where the underage individual

had possessory access to the beer, exemplifies a lack of

adequate supervision of employees and therefore negligence.

19. The evidence clearly and convincingly demonstrates

that Mr. Wong negligently allowed an underage person to have a

beer placed in front of her or within her access and ability to

possess. This act is contrary to the above - r eferenced beverage

laws of Florida.

20. The Respondent was negligent and did not exercise a

reasonable standard of diligence to prevent service to Ms

Miller. Lash, Inc. , supra . Thus it must be found that the

Respondent violated Section 561.11(1)(a), Fl orida Statutes, for

which he must be held accountable. Therefore an appropriate

penalty must be determined.

21. Rule 61A - 2.022(11), Florida Administrative Code,

prescribes penalty guidelines to be imposed on alcoholic

beverage licensee's when violations have been committed. For a

first time violation of the above - referenced statutes, the Rule

calls for a $1,000.00 fine and a seven - day suspension of

license. The Division's Rule, however, does not identify either

aggravating or mitigating considerations which may be taken into

account in assessing a penalty. The Rule does not preclude

mitigating considerations. In view of the fact that this was a

first - time offense on the part of Mr. Wong; in view of Mr.

Wong's candor and remorse at this having occurred and because

the above - referenced transaction occurred through negligence and

not through willfulness and intent, it is determined that a fine

of $250.00 should be assessed and that no other penalty be

imposed.

RECOMMENDATION

Having considered the foregoin g Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties it is, therefore,

RECOMMENDED that a final order be entered by the Department

of Business and Professio nal Regulation, Division of Alcoholic

Beverages and Tobacco, finding that the Respondent violated

Section 562.11(1)(a), Florida Statutes, and that he be required

to pay a $250.00 fine to the Division.

DONE AND ENTERED this 31st day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 31st day of July, 2003.

COPIES FURNISHED :

Christina Pardieck,

Assistant Ge neral Counsel

Division of Alcoholic Beverage and Tobacco

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Gary Barker, Esquire

Post Office Box 1177

Callahan, Florida 32011

Hardy L. Roberts, III, General Counsel

Division of Alcoholic Beverage a nd Tobacco

Department of Business and Professional

Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Peter Williams, Director

Division of Alcoholic Beverage and Tobacco

Department of Business and Professional

Regulation

1940 North M onroe 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 file d with the agency that

will issue the Final Order in this case.