03-000431 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Barghouthi Enterprises, Inc., D/B/A Fowler Liquor Store Status: Closed Recommended Order on Thursday, June 5, 2003.

Summary: Department proved by clear and convincing evidence that licensee sold alcoholic beverages to minors on multiple occasions; the third violation merits license revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case Nos. 03 - 0217

) 03 - 0431

BARGHOUTHI ENTERPRISES, INC., )

d/b/a FOWLER LIQUOR STORE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held by video

teleconference in this case on March 7, 2003, at connecting

sites in Fort Myers and Tallahassee, Florida, before Lawrence P.

Stevenson, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael Martinez, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399 - 2202

For Respondent: John Kyle Shoemaker, Esquire

Post Office Box 1601

Fort Myers, Florida 33 902

STATEMENT OF THE ISSUES

Whether Respondent committed the offenses set forth in the

Administrative Actions in these consolidated cases, and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

On July 11, 2002, the Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco (the "Division"), filed a one - count Administrative

Action against Barghouthi Enterprises, Inc., d/b/a Fowler Liquor

Store ("Fowler Liquors"). The Division charged Fowler Liquors

as follo ws: "On or about 06/17/2002, you, Barghouthi

Enterprises, Inc., d/b/a Fowler Liquor Store, or your agent,

employee to wit: Samer Barghouthi did sell, serve, or give an

alcoholic beverage on your licensed premises to a person under

the age of 21, contrary to Section 562.11(1)(a), Florida

Statutes." Fowler Liquors disputed the allegations of fact in

the Administrative Action and requested a hearing. This matter

was referred to the Division of Administrative Hearings ("DOAH")

on January 22, 2003, and assig ned DOAH Case No. 03 - 0217.

On September 6, 2002, the Division filed a second one - count

Administrative Action against Fowler Liquors. The Division

charged Fowler Liquors as follows: "That on or about

06/15/2002, you, Barghouthi Enterprises, Inc., d/b/a Fo wler

Liquor Store, a vendor licensed under the Beverage Laws of the

State of Florida, through your agents, servants, or employees

did sell, give, serve, or allow to consume, alcoholic beverages

on your licensed premises to a person under the age of 21.

Th ese acts are in violation of 562.11(1)(a), Florida Statutes."

Fowler Liquors disputed the allegations of fact in the

Administrative Action and requested a hearing. This matter was

referred to DOAH on February 11, 2003, and assigned DOAH Case

No. 03 - 0431. Also on February 11, 2003, the Division filed a

motion to consolidate the cases, which was granted by Order

dated February 13, 2003.

At the hearing, the Division presented the testimony of

Justin C. Bender; David P. Green; Chief Anthony J. Smith, chief

o f law enforcement for the Division; Captain Tania Pendarakis,

district supervisor for the Fort Myers office of the Division;

Agent Brian D. Sauls of the Division; Officers Bradley J. Ades,

Melvin D. Perry, and Cecil Pendergrass of the Fort Myers Police

Dep artment; and Reverend Anthony Cubello. The Division's

Exhibits 1 through 4 were admitted into evidence. Fowler

Liquors presented no testimony. Fowler Liquors' Exhibit 1 was

admitted into evidence.

The one - volume Transcript of the hearing was filed on

Ap ril 11, 2003. The Division filed its Proposed Recommended

Order on April 21, 2003. Fowler Liquors did not file a proposed

recommended order. On May 8, 2003, Fowler Liquors filed a

document styled "Exceptions to Recommended Order," which

consists of argu ment in response to the Division's Proposed

Recommended Order. No leave was given to Fowler Liquors to file

such a response. However, the Division has not objected to the

response. In an effort to provide Fowler Liquors every

opportunity to answer the c harges brought in these proceedings,

the undersigned has fully considered the "Exceptions to

Recommended Order" in arriving at the findings and conclusions

set forth below.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final h earing, and the entire record in this proceeding, the

following findings of fact are made:

1. At all times material hereto, Fowler Liquors was

licensed by the Division, having been issued license number 46 -

04643, Series 3 - PS. The license permits Fowler L iquors to make

packaged sales of beer, wine, and liquor at its convenience

store located at 3450 Fowler Street in Fort Myers.

2. In an Administrative Action dated July 11, 2002, the

Division charged Samer Barghouthi, the majority owner and

principal offic er of Fowler Liquors, with selling alcoholic

beverages to a person under the age of 21 on May 19, 2002.

Fowler Liquors conceded there were no disputed issues of fact

and requested that the matter be resolved in an informal

hearing. In a Final Order dated October 25, 2002, the Division

ordered Fowler Liquors to pay a fine of $1,000 and serve a

seven - day license suspension.

3. The Administrative Action regarding the May 19, 2002,

sale arose from an incident in which 20 - year - old Tony Cubello

was beaten, rob bed, and shot to death in the parking lot of

Fowler Liquors after making a purchase in the liquor store. The

murder of Mr. Cubello was the subject of articles in the Fort

Myers newspaper.

4. The Fort Myers Police Department investigated

Mr. Cubello's m urder and came to believe that Samer Barghouthi

could identify the killers but was refusing to cooperate. The

Fort Myers police requested the assistance of the Division in

securing Mr. Barghouthi's cooperation.

5. The Division commenced an investigation, interviewing

young people who had known Mr. Cubello. During the course of

these interviews, the Division became aware that Fowler Liquors

was widely reputed as a place where underage people could buy

alcoholic beverages. During its investigation, the Di vision

also learned that the Department of Revenue had a tax warrant

against Fowler Liquors, and that the City of Fort Myers had

issued citations against Fowler Liquors for hours - of - sale

violations.

6. During its investigation, the Division sent an undera ge

operative into Fowler Liquors to attempt to purchase alcoholic

beverages. The operative was wearing a hidden microphone,

allowing the Division's officers to hear what transpired in the

liquor store. As the sale was about to be completed, a van full

of construction workers pulled up outside the store. The person

working behind the counter at Fowler Liquors said that there

were "cops" in the van, and declined to complete the sale to the

operative.

7. On June 14, 2002, Captain Tania Pendarakis, dist rict

supervisor for the Division's Fort Myers office, met with Samer

Barghouthi. She informed Mr. Barghouthi that the Division might

consider filing administrative charges rather than criminal

charges against Fowler Liquors, if Mr. Barghouthi would

cooper ate with the Fort Myers Police Department's murder

investigation.

8. During this conversation, Mr. Barghouthi assured

Captain Pendarakis that he was going to start checking

identifications and stop selling alcoholic beverages to underage

children.

9. Th e next day, June 15, 2002, David P. Green, then

sixteen years old, entered Fowler Liquors early in the evening

to buy beer. In the liquor store, Mr. Green recognized other

people whom he knew from his high school. Mr. Green testified

that it was widely k nown at his school that underage people

could purchase alcohol at Fowler Liquors.

10. Mr. Green purchased a twelve - pack of Budweiser Light

beer. He tendered ten dollars cash to the cashier and asked if

the store sold "dip," i.e. , finely ground tobacco. The cashier

told him no, but offered to sell Mr. Green cigarettes.

11. The cashier did not ask Mr. Green his age, nor request

any identification from Mr. Green to prove that he was at least

21 years of age. At the hearing in this matter, conducted

n early nine months after the fact, Mr. Green looked no older

than sixteen. When he purchased the beer at Fowler Liquors,

Mr. Green made no attempt to alter his appearance or otherwise

disguise the fact that he was only sixteen years old.

12. When Mr. Gr een exited Fowler Liquors, he saw a police

officer parked in a police cruiser directly in front of him.

Mr. Green put his twelve - pack of beer down next to a garbage

can, then got into his car and drove away. Several of

Mr. Green's friends were also in hi s car.

13. The police officer who witnessed this scene, Officer

Bradley J. Ades of the Fort Myers Police Department, testified

at the hearing. Officer Ades testified that, because of the

ongoing problems the police were having with Fowler Liquors, he

st opped by there to check it out as part of his normal duties.

As he pulled into the parking lot, he saw a "very young white

male" walking out the front door of Fowler Liquors. The boy was

carrying a twelve - pack of Budweiser Light beer. Officer Ades

state d that he was surprised not to see the boy's father follow

him out of the store, because the boy looked so young. The boy

got into his car and drove away. Officer Ades followed him for

a little more than one block, then pulled him over.

14. Officer Ade s interviewed Mr. Green and photographed

him. Mr. Green admitted that he bought the beer in Fowler

Liquors, and that he and the other boys in his car intended to

drink it.

15. Because the sale of alcohol to a minor is a

misdemeanor, and he did not witne ss the sale, Officer Ades could

not make an arrest. The next day, he forwarded to the Division

the information concerning his stop of Mr. Green.

16. Agent Brian D. Sauls of the Division contacted

Mr. Green and asked him to come to the Division's offices for an

interview. Mr. Green agreed. Agent Sauls conducted a

photographic suspect lineup, and Mr. Green identified Samer

Barghouthi as having been behind the counter at Fowler Liquors

at the time he purchased the twelve - pack of Budweiser Light on

June 15 , 2002.

17. The incident involving the sale to Mr. Green formed

the basis of the Administrative Action that led to DOAH Case

No. 03 - 0431. Fowler Liquors did not contest the evidence that a

sale was made by Fowler Liquors to Mr. Green, an underage

person , on June 15, 2002, or that Samer Barghouthi was present

at the counter when the sale was made.

18. On the evening of June 17, 2002, Justin C. Bender,

then eighteen years of age, entered Fowler Liquors to buy beer.

Mr. Bender testified that he had purch ased alcohol at Fowler

Liquors more than 40 times and had never been asked for any

identification. Mr. Bender stated that he has seen friends and

other people whom he knew from school inside Fowler Liquor

Store. Mr. Bender also testified that he had disc ussions with

other people about Fowler Liquors being a place where underage

people could purchase alcoholic beverages.

19. On June 17, 2002, Mr. Bender purchased a twelve - pack

of Budweiser beer and a quart of Heineken beer, then left the

store. Mr. Bend er purchased the beer from Steve Barghouthi, the

father of Samer Barghouthi. Steve Barghouthi did not ask

Mr. Bender his age, nor request any identification to prove that

he was at least 21 years of age. Mr. Bender had made no effort

to alter his appeara nce or make himself look older than

eighteen.

20. On June 17, 2002, Anthony J. Smith, the chief of law

enforcement for the Division, visited the Fort Myers office. He

asked Captain Pendarakis to inform him of cases her office was

involved in, and the s ubject of Fowler Liquors was discussed.

After dinner that evening, Chief Smith drove by Fowler Liquors

to take a look at the store.

21. As he drove through the parking lot, Chief Smith saw

Mr. Bender exiting the store with his beer. Chief Smith stopp ed

him to determine how old he was. Mr. Bender produced a valid

driver's license that showed he was eighteen years old. Chief

Smith searched Mr. Bender for fake identification, but found

none.

22. Chief Smith asked Mr. Bender if he would be willing to

return to Fowler Liquors and make another purchase that Chief

Smith could observe. Mr. Bender agreed to do so.

23. Chief Smith telephoned Captain Pendarakis and asked

her to bring marked cash for Mr. Bender to purchase beer.

Captain Pendarakis arrive d with the cash. She went into Fowler

Liquors to ascertain whether it would be safe for Mr. Bender to

return to the store. After Captain Pendarakis determined the

store was safe, Mr. Bender entered the store.

24. Chief Smith and Captain Pendarakis wa tched the

transaction from across the street. They had a clear view

through the window of the liquor store. They observed

Mr. Bender get a carton of beer, put it on the counter, pay

for it, and walk out the door.

25. After Chief Smith and Captain Penda rakis viewed the

sale to Mr. Bender, they went into the store to arrest the

person who had made the sale, Samer Barghouthi. Mr. Barghouthi

was arrested and taken to the Lee County Jail.

26. The incident involving the sale to Mr. Bender formed

the basis of the Administrative Action that led to DOAH Case

No. 03 - 0217. Fowler Liquors did not contest the evidence that a

sale was made by Fowler Liquors to Mr. Bender, an underage

person, on June 17, 2002, or that Samer Barghouthi, the

licensee, had made the sa le.

27. In mitigation, counsel for Fowler Liquors argued that

license revocation would be unfair because Samer Barghouthi is

no longer involved in the operation of the business, having

signed over his interest to his uncle, Shahir Daghara. Counsel

conte nded that Mr. Daghara acted to remove Samer Barghouthi from

the premises of Fowler Liquors as soon as he learned that

Mr. Barghouthi was making sales to underage persons.

28. This contention is not credible. The two sales that

are the subject of these p roceedings occurred nearly one

month after the murder of Mr. Cubello, which was widely known

to have occurred after Mr. Cubello purchased alcoholic beverages

in Fowler Liquors. The two sales also occurred after

Mr. Barghouthi had been interviewed by Capta in Pendarakis about

sales of alcoholic beverages to minors. Moreover, Officer Cecil

Pendergrass of the Fort Myers Police Department testified that

Samer Barghouthi was still working at Fowler Liquors on July 1,

2002, two weeks after his arrest for selling alcoholic beverages

to Justin Bender.

29. There is no record evidence that Mr. Barghouthi

transferred his interest in the business to Mr. Daghara. At

most, the Division's files indicate that at some point, Fowler

Liquors represented to the Division t hat Mr. Daghara had taken a

49 percent interest in the business. The file also contains an

undated "Current Licensee Update Data Sheet" on which Samer

Barghouthi's name is crossed through, but Fowler Liquors offered

no sworn testimony to explain the signi ficance of this document.

30. Further, even if Mr. Daghara did take over the

business, there is no evidence that he took any steps to remove

Mr. Barghouthi from the premises of Fowler Liquors, or did

anything else to address the problem of selling alcoho lic

beverages to minors.

31. Officer Pendergrass, who is the community coordinator

for the area of Fort Myers that includes Fowler Liquors, also

testified that he has been called to Fowler Liquors on a regular

basis to deal with code enforcement problems , fights between

family members, drug sales, robberies in the parking lot, and

civil problems between the owners over refrigeration equipment.

Officer Pendergrass testified that the police department's

statistics establish that Fowler Liquors is the nucle us of

criminal complaints in the area, and that in the last year, the

Fort Myers Police Department has had over 300 calls for service

to Fowler Liquors.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the subject matte r of this proceeding and

the parties thereto pursuant to Section 120.569 and

Subsection 120.57(1), Florida Statutes.

33. License revocation proceedings and proceedings

involving the levying of administrative fines are penal in

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

clear and convincing evidence the truthfulness of the

allegations in the Administrative Actions. 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. 1987).

34. A licensee is charged with knowing the practice act

that governs its license. Wallen v. Florida Department of

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

(Fla. 3d DCA 1990).

35. Section 562.11, Florida Statutes, provides 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 o f 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 therefor, 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

falsely eviden ced that he or she was of

legal age to purchase or consume the

alcoholic beverage and the appearance of the

person was such that an ordinarily prudent

person would believe him or her to be of

legal age to purchase or consume the

alcoholic beverage and if t he licensee

carefully checked one of the following forms

of identification with respect to the

person: a driver's license, an

identification card issued under the

provisions of s. 322.051 or, if the person

is physically handicapped as defined in s.

553.45( 1), a comparable identification card

issued by another state which indicates the

person's age, a passport, or a United States

Uniformed Services identification card, and

acted in good faith and in reliance upon the

representation and appearance of the pers on

in the belief that he or she was of legal

age to purchase or consume the alcoholic

beverage. Nothing herein shall negate any

cause of action which arose prior to June 2,

1978.

36. Section 561.01, Florida Statutes, provides in

pertinent part:

(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 the

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

4.007 percent of alcohol by volume.

37. 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," "m alt 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 whether such b everage or liquor is

or is not intoxicating, and a verdict based

upon such testimony shall be valid.

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

to determine the age of all patrons prior to selling alcoholic

beverages to them. Woodbury v . State Beverage Department , 219

So. 2d 47, 48 (Fla. 1st DCA 1969). When engaging in such

transactions, the licensee or his agents must exercise a

reasonable standard of diligence to ensure that alcoholic

beverages are not sold to minors. Surf Attraction s, Inc. v.

Department of Business Regulation , 480 So. 2d 1354, 1355 (Fla.

1st DCA 1985), and cases cited therein.

39. However, the fact that a licensee or agent sold an

alcoholic beverage to a underage person is not sufficient, on

its own, to subject th at licensee or agent to sanction. 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).

40. The evidence is clear and convincing that the products

sold to David Green and Justin Bender were alcoholic beverages

as defined by Subsection 561.01(4), Florida Statutes.

41. Further, the evidence is clear and convincing that

licensee Samer Barghouthi sold alcoholic beverages to Justin

Bender, a person under 21 years of age. The evidence is clear

and convincing that Samer Barghouthi was present behind the

counter of Fowler Liquors when alcoholic beverages were sold to

Dav id Green, a person under 21 years of age.

42. The evidence is clear and convincing that neither

David Green nor Justin Bender falsely evidenced that he was of

legal age to purchase or consume alcoholic beverages. The

evidence is clear and convincing that neither David Green nor

Justin Bender had an appearance that would cause an ordinarily

prudent person to believe him to be of legal age to purchase or

consume alcoholic beverages. The evidence is clear and

convincing that the licensee made no effort to c heck the

identification of either David Green or Justin Bender.

43. The evidence is clear and convincing that Samer

Barghouthi made or witnessed these sales within two days of his

interview with Captain Pendarakis. In this interview, he

acknowledged the problem of selling alcoholic beverages to

minors and assured Captain Pendarakis that from that point

forward, he would check identifications and cease selling

alcoholic beverages to persons under the age of 21 years.

44. Based on the foregoing, the licens ee Samer Barghouthi

was clearly negligent and did not exercise a reasonable standard

of diligence to prevent the sale to Mr. Green or Mr. Bender.

This clearly merits a finding that Fowler Liquors violated

Section 561.11(1)(a), Florida Statutes, and is sub ject to

penalties pursuant to Section 561.29, Florida Statutes, which

grants the Division authority to suspend or revoke a license.

45. Rule 61A - 2.022, Florida Administrative Code,

prescribes the penalty guidelines, as follows in relevant part:

(1) This rule sets forth the penalty

guidelines which shall be imposed upon

alcoholic beverage licensees and permittees

who are supervised by the division.

District supervisors, audit supervisors, and

bureau chiefs are authorized to accept

settlement offers that do not deviate from

the penalty guidelines. The penalties

provided below are based upon a single

violation which the licensee committed or

knew about; or a pattern of at least three

violations on different dates within a 12 -

week period by employees, indep endent

contractors, agents, or patrons on the

licensed premises or in the scope of

employment in which the licensee did not

participate; or violations which were

occurring in an open and notorious manner on

the licensed premises.

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

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

license for a first - time violation of Section 562.11(1)(a),

Florida Statutes. For a second violation, the rule provides for

a $3,000.00 fine and a 30 - day license suspension. For a third

violation, the rule provides for license revocation.

47. Fowler Liquors was found guilty of a first violation

of Section 562.11(1)(a), Florida Statutes, by a Final Order of

the Division dated October 25, 2002.

48. In the conso lidated cases here at issue, the Division

has proven the second and third violations by clear and

convincing evidence. Revocation is the appropriate sanction.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDE D that the Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco enter a Final Order revoking the license of Barghouthi

Enterprises, Inc., d/b/a Fowler Liquor Store.

DONE AND ENTERED this 5th day of June, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

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 the Clerk of the

Division of Administrative Hearings

this 5th day of June, 2003.

COPIES FURNISHED :

Michael Martinez, Esquire

Department of Business and

Professional Regulation

1940 No rth Monroe Street, Suite 60

Tallahassee, Florida 32399 - 2202

Captain Tania Pendarkis

4100 Center Point Drive

Suite 104

Fort Myers, Florida 33916

John Kyle Shoemaker, Esquire

Post Office Box 1601

Fort Myers, Florida 33902

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Peter Williams, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulat ion

Northwood Centre

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 R ecommended Order should be filed with the agency that

will issue the Final Order in this case.