05-004687 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. Brother J. Inc., D/B/A A. J. Sports Status: Closed Recommended Order on Thursday, July 27, 2006.

Summary: Respondent recklessly allowed a minor to purchase and consume an alcoholic beverage on the premises. Recommend a fine and the suspension of Respondent`s license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO , )

)

Petitioner , )

)

vs. ) Case No. 05 - 4687

)

BROTHER J. INC., d/b/a A. J. )

SPORTS , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) held a formal hearing in this cause

in Tallahassee, Florida, on May 24 and 25, 20 06. The following

appearances were entered:

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

John Lockwood

Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Stre et

Tallahassee, Florida 32399 - 2202

For Respondent: Jay Adams, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The primary issues for determination are whether Brother J .

Inc., d/b/a A.J.’s Sports (Respondent) violated Section

561.29(1)(a), Florida Statutes ; and secondarily, if Respondent

committed such a violation, what penalty should be imposed?

PRELIMINARY STATEMENT

O n June 15, 2005, the State of Florida, Department of

Business and Professional Regulation, Division of Alcoholic

Beverages and Tobacco (Petitioner) served an Administrative

Action alleging that Respondent violated Section 561.29(1)(a),

Florida Statutes , by serving alcoholic beverages at its licensed

establishment to four persons (Shane Donnor, Stephanie Reed,

Christopher Lowe, and Tania Vasquez) under the legal drinking

age.

Respondent disputed the allegations in the Administrative

Action by Petition filed at the Department of Business and

Professional Regulation on July 1, 2005, and requested a formal

administrative hearing. The case was referred to the Division

of Administrative Hearings on December 23, 2005. A formal

hearing was set for March 29, 200 6 , in Tallahassee, Florida. It

was later rescheduled to May 24, 200 6 , at the request of the

parties.

Petitioner moved to amend its Administrative Action to add

three additional counts of violation of Section 561.29(1)(a),

Florida Statutes , for serving alcoholic beverages to minors

(Elizabeth McKean, David Moser, and Lee Habern). This motion

was granted and the matter proceeded to hearing on seven counts.

Petitioner is seeking to suspend Respondent’s alcoholic beverage

license for seven days and impose a $1,000 civil penalty for

each of the alleged seven violations.

At hearing, Petitioner presented testimony of 13 witnesses

and ten exhibits. Petitioner presented an eleventh exhibit,

Petitioner’s e xhibit five that was not accepted into evidence.

Respondent presented the testimony of two witnesses and one

exhibit.

A two - volume transcript of the final hearing was filed on

June 12, 2006. After granting the parties an extension beyond

the ten - day rule requirement for submission of proposed factual

findings and proposed conclusions of law, Petitioner and

Respondent each filed a Proposed Recommended Order. Those post -

hearing submissions have been considered in the preparation of

this Recommended Order.

All references to Florida Statutes are to th e 2005 edition,

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner is the agency vested with general regulatory

authority over the alcoholic beverage industry within the state,

including the administration of the laws and rules relating to

the sale of alcoholic beverages.

2. Respondent is subject to the regulatory jurisdiction of

Petitioner, having been issued license number 47 - 02607, Series

4 - COP by Petitioner. That license allows Respondent to make

sales for consumption on premises of liquor, w ine , and beer at

his establishment located in Tallahassee, Florida.

3. Events at issue in this proceeding revolve around a

fraternity/sorority party held at Respondent’s establishment on

the evening of March 30/April 1, 2005. Members of the Phi Kappa

Psi fraternity and the Delta Nu Zeta sorority decided that they

would host a “construction” theme party. To facilitate the party,

the social chairman of Phi Kappa Psi contacted Respondent to make

arrangements.

4. Respondent’s establishment has several lar ge areas on its

ground floor and a single, 1,800 square foot room on the second

floor. Respondent agreed to reserve its upstairs room for the Phi

Kappa Psi/Delta Nu Zeta party, to waive its cover charge for party

patrons, and to make “dollar wells, dollar beers” (i.e. discounted

prices on certain alcoholic beverages) available to party

participants for a fee of $300.00.

5. On the night in question, most of the participants met at

the Phi Kappa Psi house before going out for the evening. They

gathered a round 10:00 p.m. and socialized. Some people were

getting their “construction” costumes together; others were “pre -

partying” – - drinking before going out to minimize the size of the

bar bill when they go out later. The majority of the people at

the frat h ouse at that time were drinking.

6. At some point around 10:30 or 11:00 p.m., the party moved

from the Phi Kappa Psi house to Respondent’s establishment , with

party members leaving in groups of three or four to drive from the

fraternity house to Respond ent’s establishment. It was estimated

that 15 or so sorority members and 15 to 30 fraternity brothers

attended the party, and that somewhere between a third and a - half

of those people were not of legal drinking age.

7. When they arrived at Respondent’s establishment, the

sorority and fraternity party makers used a side entrance set up

for them by Respondent for use in getting to the party. A doorman

was posted at the side entrance that checked the age of each of

the patrons. He would place a “Tybex ® ” wristband on those persons

who were over the age of 21 and would mark the hand of those under

21 with an indelible marker. Once inside, party members would go

upstairs , where there was a bar with a bartender, a disk jockey,

and a dance floor. The party c ontinued on until around 2:00 a.m.

on the morning of April 1 , 2005, at which time the bar closed and

the patrons left.

8. During the course of the evening , 244 alcoholic beverages

were served at the upstairs bar at Respondent’s facility. No

evidence was presented that established with any degree of

accuracy how many fraternity and sorority members actually were at

the party and how many were of legal drinking age. The evidence

of party attendance provided at hearing varied widely and was in

each instanc e an estimate or a guess. Numerous persons who were

not members of Phi Kappa Psi or Delta Nu Zeta were in attendance.

There is no accurate estimate of how many legal drinkers were at

the party or how many drinks each legal patron may have had.

The Undera ge Drinkers

9. Shane Donnor was observed drinking at the frat house that

night. He did not, however, appear to be intoxicated when he left

the frat house. He had a wristband indicating that he was over

21, which allowed him to drink at Respondent’s est ablishment, even

though he was n o t of legal age. It is unknown how he obtained his

wristband. Donnor was observed to have a glass in his hand while

at Respondent’s establishment, but no one could confirm that he

was drinking alcohol. While at Respondent ’s establishment,

various witnesses described him as appearing under the effects of

alcohol and thought he appeared quite intoxicated. By 2:30 a.m. on

April 1, Donnor had a blood alcohol level of 0.27. This

corresponds to at least 10 drinks and probably m ore. It is an

extremely high level of intoxication, which could result in a coma

or even alcohol toxicity in some persons. He was quite drunk and

had been so for some time.

10. Stephanie Reed was carded upon entering Respondent’s

establishment, as was her boyfriend and all the others in her

party. She had one or two drinks, but she didn’t buy them

herself. One of the fraternity brothers purchased her drinks for

her. Reed testified at one point that she did not receive a

wristband when she entered the establishment (signifying legal

drinking age); later, she testified that she did due to the

intervention of some unknown man who told the doorman to give her

a bracelet. Reed’s testimony on this point is inconsistent and

cannot be credited.

11. C hristopher Lowe was carded as he entered Respondent’s

establishment. He received marks on the back of his hand

indicating that he was underage. Although he was marked as being

underage, Lowe was able to purchase two drinks from the bartender.

He ordered the drinks; did nothing to conceal the underage marks

on his hand; was served; and left money on the bar.

12. Tania Vasquez was carded upon entering Respondent’s

establishment and was marked as being underage. She did not buy

any drinks while at th e party, but was given an alcoholic beverage

by a friend that she consumed while on the premises.

13. Elizabeth McKean, and everyone who entered with her,

were carded when they arrived at the party. McKean was marked as

being underage. She did not buy any drinks for herself, but was

given a shot of tequila by someone else. She drank the shot

quickly to avoid detection by Respondent’s staff.

14. David Moser had a roommate who manufactured fake i.d.

cards. When he entered Respondent’s establishment, h e was carded

and presented a false drivers license that made it appear that he

was over the age of 21. He was marked as though he was over the

legal drinking age and was able to buy and consume drinks at the

bar, which he did.

15. Lee Habern had se veral sips of a friend’s drink that was

“snuck” to him.

Prevention Of Underage Drinking

16. It is well recognized that underage persons will seek to

obtain alcoholic beverages at bars. This action by underage

youths results in a “cat and mouse” game whe reby the bar will

change its tactics in trying to prevent underage drinking and the

underage drinkers will change their methods of trying to obtain

drinks.

17. Respondent tries to combat underage drinking by creating

a culture of compliance. This s tarts with the initial hiring of

employees by Respondent. Respondent’s policy is that no underage

drinking will be tolerated. This policy is stated in the

Employee’s Handbook. Every employee is given a copy of the

handbook upon becoming employed and is required to sign an

acknowledgement that he or she received it. The policy is

reiterated in informal training at every staff meeting.

18. Every new employee at Respondent’s establishment is

required to go through formal training with regard to liqu or laws,

the effect of alcohol on the human body, dealing with customers

who have had too much to drink, and related topics. These courses

are known as “PAR”, “TIPS”, and “Safe Staff” and are offered by

the Florida Restaurant Association and Anheiser - Busc h. Respondent

has also offered training provided by agents of Petitioner. These

formal training programs are offered continuously to employees ,

and at least one of the programs is offered three times each year.

The initial formal training is accomplishe d within 30 days of the

employee being hired. Records are maintained by Respondent as to

who receives what training, and when it is provided.

19. Respondent has a policy that everyone who is served

alcohol is to have his or her age checked. When the ba r is not

busy, this is accomplished by having the waitress check the

patron’s I . D . When the bar is busier, a doorman is posted at the

entrance to check the patron’s I . D . If the patron is over age 21,

he or she is given a wristband ; if under age 21, an in delible mark

is placed on the back of the hand. Since Respondent has

experienced persons copying their “over 21” designation, it is

changed on a nightly basis.

20. Fake identification cards, if detected, are confiscated.

On busier nights, Respondent m ight confiscate 20 to 30 of such

fake identifications. On the night in question, the doorman

confiscated five altered cards.

21. Respondent also has a floor manager on duty at all times

that the bar is open. The floor manager will circulate throughout

t he establishment to make sure that all of the policies and

procedures, including the prevention of underage drinking, are

being carried out. On the night in question, the floor manager,

Bo Crusoe, is documented to have worked and in the nominal course

of events would have checked the upstairs area of the premises

several times.

22. On busy nights, Respondent will hire one or more off -

duty City of Tallahassee police officers to serve as security at

the bar. The officers work in their police uniforms . These

officers serve first and foremost as high visibility deterrents to

unlawful activity. Their mere presence serves to minimize

underage drinking. Respondent regularly has off - duty law

enforcement on the premises.

23. Respondent also has a se curity consultant, Officer John

Beemon, who is a Tallahassee Police officer. He evaluates the

need for additional security and communicates those needs to the

owners. When he becomes aware of a new wrinkle in underage

persons obtaining alcohol, he works with Respondent to prevent the

practice. He assists the doormen in identifying fraudulent I . D .s.

Respondent has always implemented whatever recommendations Beemon

makes to them.

24. Generally, the security measures used by Respondent have

proven ef fective. From time to time, Petitioner will try a “sting

operation” at Respondent’s establishment by sending a minor into

Respondent’s bar to see if they are able to purchase alcohol. On

every such “sting operation” Petitioner’s decoy was identified and

stopped at the front door and was not allowed to purchase

alcoholic beverages.

25. Carrie Bruce is Petitioner’s special agent for the

Tallahassee area. She is familiar with most Tallahassee alcoholic

establishments and her testimony establishes that Res pondent’s

establishment is not considered a “problem bar” by Petitioner and

is considered to be better than other area bars in preventing

underage drinking.

26. To the best of the owner’s knowledge and Beemon’s

knowledge, no one has ever knowingly served a drink to a minor at

Respondent’s establishment. Further, Respondent has never

previously been charged with serving alcohol to minors.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties and subject ma tter in this case.

§§ 120.569 and 120.57, Fla. Stat.

28. Because Respondent is subject to penal sanctions in

this proceeding, i.e. , the imposition of an administrative

penalty, Petitioner has the burden of proving by clear and

convincing evidence t he specific allegations in the

Administrative Complaint. See , e.g. , Department of Banking and

Finance v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

29. The nature of clear and convincing evidence requires

that the licensee be held to a "reasonable standard of

diligence" and require s "culpable" responsibility so that any

violation is due to the licensee's "own negligence, intentional

wrongdoing, or lack of diligence." Pic N' Save Central Florida,

Inc., v. Department of Business and Professional Regu lation , 601

So. 2d 245 (Fla. 1st DCA 1992).

30. Further, clear and convincing evidence has been

described as follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction , without hesitancy, as to the

truth of the allegations sought to be

established.

Inquiry Concerning Davey , 645 So. 2d 398, 404 (Fla. 1994),

quoting, with approval, from Slomowitz v. Walker , 429 So. 2d

797, 800 ( Fla. 4th DCA 1983).

31. Section 561.29(1 ) (a), F lorida Statutes, provides :

561.29 Revocation and suspension of license;

power to subpoena. --

(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 de termined or found

by the division upon sufficient cause

appearing of:

(a) Violation 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 county 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 shall 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.

32. While this statute may appear to create strict

liability for violation of the state’s alcohol laws, the courts

of this state have continuously and unanimously held that a

license may only be sanctioned if the licensee failed to

exercise reasonable diligence in preventing underage drinking.

See , e.g. Woodbury v. State Beverage Department , 219 So. 2d 47,

48 (Fla. 1 st DCA 1969); Trader Jon, Inc. v. St ate Beverage

Department , 119 So. 2d 735, 739 (Fla. 1 st DCA 1960).

33. In this regard, Petitioner has proven only count three

of the Administrative Action, pertaining to Christopher Lowe. He

was carded, received marks on the back of his hand indica ting that

he was underage. Thereafter, he purchased two drinks from the

bartender. He did nothing to conceal the underage marks on his

hand, was served, and left money on the bar.

34. The evidence, with the exception of Lowe, does not,

however, de monstrate that Respondent willingly, knowingly, or

recklessly allowed other minors to purchase and/or consume

alcoholic beverages on its premises; or that Respondent

fostered, condoned, or negligently overlooked these activities.

RECOMMENDATION

Based upo n the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED

That Petitioner enter a final order finding Respondent to

have committed one violation of selling alcoholic beverage to a

minor and imposing an administrative penalty of a seven - day

suspension of Respondent’s license and a $1,000 fine.

DONE AND ENTERED this 27th day of July , 2006 , in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

Administrative Law Judge

Division of Administ rative 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 27th day of Ju ly , 2006 .

COPIES FURNISHED :

Jay Adams, Esquire

Broad and Cassel

Post Office Box 11300

Tallahassee, Florida 32302

Sorin Ardelean, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

John Lockwood, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1 940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Jack Tuter, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO S UBMIT 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.