04-001154 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Nabil J. Yazgi, D/B/A Express Food Store Status: Closed Recommended Order on Wednesday, November 3, 2004.

Summary: Respondent`s beverage license is not suspended for isolated incident involving the sale of beer to an undercover operative.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1154

)

NABIL J. YAZGI, d/b/a EXPRESS )

FOOD STORE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on October 7,

2004, in Jacksonville, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Admi nistrative

Hearings.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Tonia Yazgi, Esquire

The Yazgi Law Firm

3123 Beach Boulevard

Jacksonville, Florida 32207

STATEMENT OF THE ISSUES

The issues are as follows: (a) w hether Respondent violated

Sections 562.11(1)(a) and 561.29(1)(a), Florida Statutes (2003),

by selling an alcoholic beverage to Petitioner's undercover

investigative aide on January 15, 2004; and (b) if so, what

penalty, if any, should be imposed.

PRELIM INARY STATEMENT

On or about January 23, 2004, Petitioner Department of

Business and Professional Regulation, Division of Alcoholic

Beverages and Tobacco (Petitioner) issued an Administrative

Action, alleging that Respondent Nabil J. Yazgi d/b/a Express

Fo od Store (Respondent) had filed to comply with the beverage

law by selling an alcoholic beverage to an underaged

investigative aide. According to the Administrative Action,

Respondent had violated Sections 562.11(1)(a) and 561.29 (1)(a),

Florida Statutes (2003).

On or about February 12, 2004, Respondent requested a

formal hearing to contest the allegations in the Administrative

Action. Petitioner referred the request to the Division of

Administrative Hearings on April 2, 2004.

On April 19, 2004, the u ndersigned issued a Notice of

Hearing by Video Teleconference. The notice scheduled the

hearing for June 11, 2004.

On May 20, 2004, Respondent filed an unopposed Motion for

Continuance. On May 21, 2004, the undersigned issued an Order

Granting Continuan ce and Placing Case in Abeyance pending

resolution of a Duval County criminal court action involving the

incident that forms the underlying basis of the instant case.

On June 28, 2004, Petitioner filed a Motion to Resume

Proceedings. On June 30, 2004, Respondent filed a Response to

Petitioner's Motion to Resume Proceedings and Motion to Dismiss.

On July 2, 2004, Petitioner filed a Response to

Respondent's Motion to Dismiss. That same day, Respondent filed

a Response to Petitioner's Response to Motion to Dismiss. On

July 7, 2004, Petitioner filed a Second Response to Respondent's

Motion to Dismiss.

On July 12, 2004, the undersigned issued two orders. The

first Order denied Respondent's Motion to Dismiss. The second

Order rescheduled the hearing for September 14, 2004.

On September 8, 2004, Respondent filed a Motion to Continue

Proceedings on Petitioner's behalf. The motion stated that the

hearing should be rescheduled due to hurricane damage to the

office of Respondent's counsel and to some of the w itnesses'

residences.

On September 10, 2004, the undersigned issued an Order

Granting Continuance and Rescheduling Hearing. The Order

scheduled the hearing for October 7, 2004.

During the hearing, Petitioner presented the testimony of

three witnesses. Petitioner also offered two exhibits that were

accepted as evidence.

Respondent testified on his own behalf and presented the

testimony of four additional witnesses. Respondent offered two

exhibits that were accepted into evidence.

The court reporter filed the Transcript on October 10,

2004.

Respondent filed a Proposed Recommended Order on

October 21, 2004. Petitioner filed a Proposed Recommended Order

October 22, 2004.

All citations herein refer to Florida Statutes (2003)

unless otherwise indicated .

FINDINGS OF FACT

1. Respondent holds License No. BEV2601975, Series 1 - APS.

The license authorizes Respondent to sell beer and wine at the

licensed premises, which is located at 1762 Sheridan Street,

Jacksonville, Florida.

2. Respondent is the sole o wner of Express Food Store (the

store), a relatively small convenience store. He has been

licensed to sell beer and wine at the store since 1982. In the

approximately 22 years that Respondent has owned and operated

the store, he has no knowledge of an in cident where he

personally sold alcohol to an underage person prior to this

case.

3. Respondent has a personal and business rule not to sell

alcohol to underaged persons. He usually checks an individual's

identification before selling him or her alcoho l and tobacco

because underage persons frequently attempt to purchase these

products from the store. He trains his employees not to sell

alcohol to underaged persons. He posted Budweiser and Miller

Lite signs in the store that say "We I.D."

4. On Januar y 15, 2004, Petitioner performed undercover

compliance checks of licensed establishments, which were placed

on a list by random sample. The store was on the list to be

checked.

5. At approximately 6:30 p.m., Respondent was at the store

working behind t he checkout counter in the capacity of owner and

cashier. The store was relatively busy with several customers.

Respondent was waiting on the customers, and in between

customers, he was training a new employee, who was having some

difficulty operating th e lottery machine located near the cash

register. Respondent was eager to keep the customers moving as

fast as he could move them.

6. Jerry Horky acted as Petitioner's underage

operative/investigative aide on January 15, 2004. Mr. Horky,

who was born on March 28, 1984, was 19 - years - old. Mr. Horky was

appropriately groomed and dressed. In other words, he was

clean - shaven and not dressed up or down, but was wearing jeans

and a shirt with a collar.

7. Petitioner's agents took a picture of Mr. Horky o n

January 15, 2004. The copy of Mr. Horky's picture that

Respondent offered in evidence is of a very poor quality.

However, at the time of the hearing, Mr. Horky did not have the

appearance of someone over the age of 21. To the contrary, he

was average in stature and decidedly youthful in appearance.

8. Mr. Horky, Agent Raymon Arguelles, and Agent Elizabeth

Anno drove to the store and parked in front so that they could

see inside the store. Petitioner's agents checked to make sure

that Mr. Horky had his driver's license showing his correct age

and that he did not have any false identification. The agents

then instructed Mr. Horky to attempt to buy an alcoholic

beverage from the store using funds provided by Petitioner. The

agents specifically told Mr. Horky to answer truthfully if

anyone inquired about his age.

9. Following the instructions of Petitioner's agents,

Mr. Horky entered the store, walked to the beer cooler,

retrieved one 12 - ounce Budweiser beer, and walked to the counter

to wait his t urn in line behind at least one customer.

10. Respondent took care of the customer in front of

Mr. Horky. Respondent then looked at Mr. Horky and asked if he

could help him. Without saying a word, Mr. Horky placed the can

of beer on the counter and ha nded Respondent the money to pay

for it.

11. Respondent accepted the money, selling Mr. Horky the

beer. Respondent did not ask Mr. Horky's age or check his

identification. Mr. Horky exited the store and gave the can of

beer to Petitioner's agents, who had witnessed the transaction

from their parked car.

12. Petitioner's agents waited until all the customers

left the store. Then they entered the store and spoke with

Respondent. As soon as they identified themselves, Respondent

asked if Mr. Horky wa s underaged. When the agents responded

affirmatively, Respondent stated that he did not check

Mr. Horky's identification because he thought Mr. Horky looked

old enough.

13. Agent Anno told Respondent how surprised she was that

he had sold Mr. Horky a bee r because: (a) She remembered him

from the time that she first began working for Petitioner in

1992 when one of Respondent's employees was cited on two

occasions for selling alcohol to an underaged person; (b)

Petitioner had not received a complaint that Respondent was

violating the beverage laws; and (c) Petitioner had never cited

Respondent for personally violating the beverage laws.

14. Mr. Horky worked for Petitioner as an underage

investigative aide from the age of 16 until he reached age 20.

Duri ng that period of time, Mr. Horky participated in 754

compliance check operations. In 504 of the operations, the

licensed establishments refused to sell him alcohol.

Approximately 250 licensed establishments sold him alcohol.

CONCLUSIONS OF LAW

15. Th e Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2004).

16. Petitioner has the burden of proving by clear and

convincing evide nce that Respondent violated Sections

562.11(1)(a) and 561.29(1)(a), Florida Statutes. See Ferris v.

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

Florida, Inc. v. Department of Business and Professional

Regulation, Division of Alcoholi c Beverages and Tobacco , 601 So.

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

17. Section 562.11(1)(A), Florida Statutes, provides as

follows in relevant part:

(1)(a) It is unlawful for any person to

sell, give, serve, or permit to be served

alcoholic beverage s 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.

18. Section 561.29(1)(a), Florida Statutes, provides as

follows in pertinent part:

(1) The division is given full pow er 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) Violation by the licensee or his or

her or its agents, offi cers, 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 county regulation in regard to the hours

of sale, service, or consumption of

alcoholic beverages . . . .

19. Section 777.201(1), Florida Statutes, states as

follows:

(1) A law enforcement officer, a person

engaged in cooperation with a law

enforcement officer, or a person acting as

an agent of a law enforcemen t officer

perpetrates an entrapment if, for the

purpose of obtaining evidence or the

commission of a crime, he or she induces or

encourages and, as a direct result, causes

another person to engage in conduct

constituting such crime by employing methods

of persuasion or inducement which create a

substantial risk that such crime will be

committed by a person other than one who is

ready to commit it.

20. Florida Administrative Code Rule 61A - 3.052 provides as

follows in relevant part:

(1) A licensee wh o has been cited in an

administrative action for violations of

Sections 562.11(1)(a) and 859.06, Florida

Statutes, shall have a defense to any

administrative action if the underage person

falsely evidenced that he was of legal age

to purchase the alcoholic beverage,

cigarettes, or tobacco products or consume

the alcoholic beverage product and the

appearance of the person was such that an

ordinarily prudent person would believe the

person is of legal age to purchase or

consume those products, and if the lice nsee

attempted to verify the person's age by

checking . . . identification . . . .

21. In construing Section 561.29(1), Florida Statutes,

Florida's First District Court of Appeals has consistently held

a licensee liable only for his or her personal misco nduct. In

Pic N' Save Central Florida, Inc. v. Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco , 601 So. 2d 245, 250 (Fla. 1st DCA 1992), the court

stated as follows:

Although the statutory language in se ction

561.29(1) has since 1957 spoken in terms of

the Division's power to revoke or suspend a

beverage license for violations of the

beverage law committed by a licenser, or

"its agents, officers, servants, or

employees," the courts of this state have

cons istently construed and applied this

disciplinary authority only on the basis of

personal misconduct by the license. Thus,

while an employee may violate the beverage

law in making illegal sales of alcoholic

beverages to minors, the licensee's culpable

resp onsibility therefore is measured in

terms of its own intentional wrongdoing or

its negligence and lack of diligence in

training and supervising its employees

regarding illegal sales. This limitation on

the licensee's liability is consistent with

the notio n, also long recognized by the

courts of this state, that one's license to

engage in a occupation is not to be taken

away except for misconduct personal to the

license.

22. The instant case, however, is not a case where a

licensee's employee/agent sold an alcoholic beverage to an

underage person, subjecting the licensee to sanction only if it

appears that the licensee was negligent and took no care to

diligently attempt to prevent such sales. See Pic N' Save

Central Florida, Inc. , 601 So. 2d at 250 (th ree illegal sales by

three employees separated in time could not provide an inference

of negligence and lack of due diligence by the licensee); Surf

Attraction, Inc. d/b/a One Stop Food v. Department of Business

Regulation, Division of Alcoholic Beverages and Tobacco , 480 So.

2d 1354, 1357 (Fla. 1st DCA 1985)(sanctions may be imposed for

single violation by a corporate officer upon proof of lack of

due diligence, but licensee not strictly liable for single

violation of beverage law by treasurer of corporati on who

approved sale based on purchaser's use of a Missouri traffic

ticket and a photo identification card from a community center);

Mel Heifetz d/b/a Key Wester Inn v. Department of Business

Regulation, Division of Alcoholic Beverages & Tobacco , 475 So.

2 d 1277 (Fla. 1st DCA 1985)(owner's negligence in supervising

employees was an ultimate finding of fact within realm of

hearing officer's discretion); Charlotte County Lodge v. State

Department of Business Regulations, Division of Alcoholic

Beverages and To bacco , 463 So. 2d 1208 (Fla. 1st DCA

1985)(failure of lodge to supervise its employees so as to

prevent gambling on premises was not established so as to

warrant imposition of a fine or suspension of its license); G &

B of Jacksonville, Inc., d/b/a Out of Sight v. State Department

of Business Regulation, Division of Beverage , 371 So. 2d 139

(Fla. 1st DCA 1979)(suspension of license upheld where six

employees engaged in similar but separate open and gross lewd

acts with different persons on licensed premises on two

different days and where licensee either condoned or negligently

overlooked such activities); Woodbury v. State Beverage

Department , 219 So. 2d 47 (Fla. 1st DCA 1969)(improper

suspension of license where owner's bartender, in owner's

absence, made sale to party who appeared to be of age and who

stated that his identification had been previously checked; and

Trader Jon, Inc. v. State Beverage Department , 119 So. 2d 735,

739 - 740 (Fla. 1st DCA 1960)(licensee not negligent in failing to

prevent employee from selling one beer each to three minors).

23. In Holland v. State Beverage Department , 213 So. 2d

310, 311 (Fla. 1st DCA 1968), the court considered the

revocation of a beverage license based on allegations that the

licensee personally sold a minor two quarts of beer. The court

held that there was a lack of competent substantial evidence to

support a finding that the licensee had sold the minor alcohol

where the licensee had been found not guilty in a criminal trial

and where there was no evidence t o corroborate the minor's

discredited testimony. See Holland 213 So. 2d at 311.

24. In Pandolfi v. Department of Business & Professional

Regulation , 698 So. 2d 569 (Fla. 5th DCA 1997), a 20 - year - old

undercover agent bought a beer from the licensee afte r

interceding in the conversation between the licensee and a

customer, who were discussing their respective radiation

treatments for their respective cancers. The licensee in

Pandolfi had a 12 - year violation - free record. The Pandolfi

court looked at the exemplary history of the licensee, the

circumstances of the incident, and the actions of the agents to

find error in the suspension of the beverage license. See

Pandolfi , 698 So. 2d at 597. Pandolfi is factually

indistinguishable from the instant case.

25. Respondent has a 22 - year violation - free record. He

was attempting to train a new employee and wait on customers at

the same time. He sold a beer to a 19 - year - old undercover

operative without making any inquiry as to his age or

identification.

26. Respondent is not entitled to defenses set forth in

Section 777.201(1), Florida Statutes, and Florida Administrative

Code Rule 61A - 3.052. To the contrary, Petitioner merely

provided Respondent with an opportunity to violate the beverage

laws and Respond ent promptly availed himself of that

opportunity. Even so, under Pandolfi , Respondent cannot be said

to have violated Section 561.29(1)(a), Florida Statutes,

knowingly, willfully, or with a lack of due diligence or

flagrant or chronic misconduct.

RECOMM ENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED :

Petitioner enter a final order dismissing the charges

against Respondent

DONE AND ENTERED this 3rd day of November, 2004, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd of November, 2004.

COPIES FURNISHED :

Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32 399 - 2202

Captain Cynthia C. Britt

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 600

Jacksonville, Florida 32211

Tonia Yazgi, Esquire

3123 Beach Boulevard

Jacksonville, Florida 32207

Jack Tuter, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO S UBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recomm ended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.