07-003107 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. Tiny`s Liquor, D/B/A Little Liquor Store Status: Closed Recommended Order on Thursday, September 20, 2007.

Summary: Petitioner proved by clear and convincing evidence that Respondent sold an alcoholic beverage to a minor. Recommend a seven-day suspension and an administrative fine of $1000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 07 - 3107

)

TINY’S LIQUOR, d/b/a LITTLE )

LIQUOR STORE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was con ducted in this case on

August 17, 2007 , by video t eleconference at sites in Lauderdale

Lakes and Tallahassee, Florida , before Administ rative Law Judge

June C. McKinney of the Divi sion of Administrative Hearings,

pursuant to the authority set forth in Sections 120.569 and

120.57(1), Florida Statutes (2007) .

APPEARANCES

For Petitioner: Michael J. Wheeler, Esquire

Department of Business and

Professional Regulation

Northwood Centre, Suite 40

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Phi llip Meditto, Esquire

2756 East Atlantic Boulevard

Pompano Beach, Florida 33062

STATEMENT OF THE ISSUE S

The issues are as follows: (a) whether Respondent violated

Sections 562.11(1) (a) and 5 61.29 (1) (a), Fl orida Statutes, 1 by

selling an alcoholic beverage to Petitioner's undercover

investigative aide on November 17, 2006; and (b) if so, what

penalty, if any, should be imposed.

PRELIMINARY STATEMENT

On or about January 8, 2007, Petitioner Department of

Busin ess and Professional Regulation, Division of Alcoholic

Beverages and Tobacco ( Petitioner) issued an Administrative

Action, alleging that Respondent Tiny Liquor , d/b/a Little

Liquor Store ( Respondent) had failed to comply with the beverage

law by selling an alcoholic beverage to an underage

investigative aide. According to the Administrative Action,

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

(1)(a), Florida Statutes.

On or about February 13, 2007 , Respondent requested a

hearing disputing the issues of material fact. Petitioner

referred the request to the Division of Administrative Hearings

on July 10, 2007.

On August 1, 2007, the undersigned issued an Order

scheduling the hearing. The order scheduled the hearing for

August 17, 2007, at Pal m Beach County Courthouse.

On August 6, 2007, the undersigned issued an Amended Notice

of hearing changing the location of the hearing to Lauderdale

Lakes.

On August 8, 2007, the undersigned issued an Amended Notice

of Hearing by Video Teleconference. T he final hearing was held

by v ideo t eleconference on August 17, 2007.

At hearing, Petitioner presented the testimony of

Investigative Aide #0045 and Sgt. Relias Thompson . Petitioner's

Exhibits numbered 1 through 2 were admitted into evidence.

Respondent presented the testimony of Special Agent Darren Cover

and Nashat Nasser.

The proceeding was recorded but not transcribed. The

parties were given until September 6, 2007 , to file proposed

recommended orders. Both the Petitioner and Respondent filed

Prop osed Recommended Orders , which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent holds License No. 16 - 00664, Series 3 - PS.

The license authorizes Respondent to sell packaged wine, liquor

and beer at the li censed premises, which is located at 1701 West

Atlantic Boulevard, Lauderdale Lakes , Florida . Mr. Nasser is

the owner of Tiny's Liquor, a relatively small liquor store . He

has been licensed to sell at that store for approximately three

years. Mr. Nasser has held a beverage license for approximately

10 years, and is not aware of an incident where he personally

sold alcohol to an underage d person prior to this case.

2. Mr. Nassar has a personal and business rule not to sell

alcohol to underaged persons. H is policy is to always check an

individual's identification before selling him or her alcohol

and tobacco. Mr. Nassar trains his employees to check each

patron's age and not to sell alcohol to underaged persons. He

also posts signs in the store regardi ng the prohibition of

underage d sales.

3. On November 17, 2006, Petitioner performed an

undercover compliance check of Respondent based on an an onymous

complaint that underage beverage sales were taking place at

Tiny's Liquor.

4. Investigative Aide #00 45 , acted as Petitioner's

underage operative/investigative aide on November 17, 2007. The

Investigative Aide #0045, who was born on June 7, 1988, was a n

18 - year - old female , who wore braces at the time of the incident .

5. Investigative Aide #0045 entered Tiny's Liquor , walked

straight to the beer cooler and took out a 16 - ounce can of

Budweiser beer. She then went to the line to purchase the beer

and walked to the counter to wait her turn in line . One

customer was in front of the aide and one was behind her when

she got in line.

6. A clerk took care of the customer in front of

Inv estigative Aide #0045 with his or her purchase. The owner of

Tiny's Liquor, Mr. Nasser, took over the clerk's duties at the

counter after the sale to the person in front of In vestigative

Aide #0045. Mr. Nassar assisted Investigative Aide #0045 with

her purchase of beer. The aide placed the can of bee r on the

counter and handed Mr. Nasser the money to pay for it .

7. Mr. Nasser accepted the money, selling the aide the

beer. Mr. Nassar did not ask the aide's age or check her

identification. Mr. Nasser placed the beer in the bag and gave

it to the aide.

8. After the purchase, t he Investigative Aide exited the

store and gave the can of beer to Petitioner's agent, who had

wit nessed the transaction in the store.

9. Petitioner's agents entered the store and spoke with

Respondent. As soon as they identified themselves, Mr. Nasser

apologized and said , "I made a mistake and should have checked

ID but I was trying to help the cle rk out." Mr. Nasser was very

cooperative and polite during his arrest.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569 and 1 20.57(1) , Florida

Statutes (2007).

11. Petitioner has the burden of proving by clear and

convincing evidence that Respondent violated Sections

562.11 (1)(a) and 56 1 .29 (1)(a), Florida Statutes. See Ferris v.

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

Florida, Inc. v. Department of Business and Professional

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

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

12. 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 beverages to a person under 21

years of age or to permit a person under 21

years of age to consume such beverage s on

the licensed premises.

13. Section 561.29 (1)(a), Florida Statutes, provides :

(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) 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 municip al

or county regulation in regard to the hours

of sale, service, or consumption of

alcoh olic beverages. . . .

14. In construing Subsection 561.29(1), Florida Statutes,

Florida's appellate courts have consistently held a licensee

liable only for his or h er personal misconduct. In Pic N' Save,

supra , at 250, the court stated:

Although the statutory language in section

561.29(1) has since 1957 spoken in terms of

the Division's power to revoke or suspend a

beverage license for violation of the

beverage la w committed by a license e or " its

agents, officers, servants, or employees, "

the courts of this state have consistently

construed and applied this disciplinary

authority only on the basis of personal

misconduct by the licensee. Thus, while an

employee may violate the beverage law in

making illegal sales of alcoholic beverages

to minors, the licensee's culpable

responsibility 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 notion, 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.

15. The facts in this case demonstrate that Mr. Nassar

sold beer to an underage d individual, Investigative Aide #0045

without checking her identification , even though Mr. Nassar had

a business policy not to sell alcohol to minor s .

16. Mr. Nassar's own actions on November 17, 2007,

demonstrate misconduct . As the owner of Tiny's Liquors , who was

aware of the law and had trained employees not to sell alcohol

to minors, Mr. Nassar did not make any effort to check the

minor's iden tification or make an inquiry as to the age .

17. Mr. Nassar was working independently when he sold and

made the transaction of the 16 - ounce beer to the minor . The

transaction occurred between Mr. Nassar and the minor without

any type of interference. A nd, Mr. Nassar admitted his

wrongdoing immediately when the agents spoke to him about the

incident.

18. The circumstances of Mr. Nassar's conduct during the

minor's purchase of the beer demonstrate that he took no care to

diligently attempt to prevent th e sale to the minor. Mr. Nassar

is personally responsible for the violation as a result of his

own negligence and failure to check the Investigative Aide's

identification.

19. Petitioner has met the burden to show by clear and

convincing evidence that the licensee failed to demonstrate both

diligence and culpable responsibility. Further, it has been

shown that the violation is due to the licensee's own negligence

and wrongdoing.

20. There is sufficient evidence in this matter to sustain

a sanction of the beverage license at issue. The misconduct is

personal to the licensee.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order finding Respondent to

ha ve committed o ne violation of Subsection 562.11(1)(a), Florida

Statutes , a nd imposing an administrative penalty of a seven - day

suspension of Respondent's license and a $1000.00 fine .

DONE AND ENTERED this day 20th of September, 2007, in

Tallahassee, Leon County, Florid a.

S

JUNE C. McKINNEY

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

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of September, 2007 .

ENDNOTE

1/ Unless otherwise indicated, all references are to the 2006

Florida Statutes.

COPIES FURNISHED :

Michael J. Wheeler, Esqui re

Department of Business and

Professional Regulation

Northwood Centre, Suite 40

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Phillip Meditto, Esquire

2756 East Atlantic Boulevard

Pompano Beach, Florida 33062

Steven M. Hougland, Ph.D., Di rector

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Ned Luczynski, General Counsel

Department of Business and

Professional Reg ulation

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 th is Recommended Order should be filed with the agency that

will issue the Final Order in this case.