12-003649 Fubar vs. City Of Gainesville Status: Closed Recommended Order on Friday, April 26, 2013.

Summary: Respondent proved requisite number of underage drinking incidents. However, Petitioner used reasonable diligence to deter and detect underage drinking. Recommend Underage Probition Order be rescinded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FUBAR , )

)

Petitioner , )

)

vs. )

) Case No. 1 2 - 3649

CITY OF GAINESVILLE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursu ant to notice , a hearing was conducted in this case on

January 28 , 2 01 3 , via video teleconference with sites in

Gainesville and Tallahassee , Florida, before Barbara J. Staros ,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Gary S. Edinger , Esquire

Gary S. Edinger and Associates, P.A.

305 Northeast 1st Street

Gainesville , Florida 32 6 0 1

For Respondent: Lee C. Libby , Esquire

City of Gainesville

200 East University Avenue, Suite 425

Gainesville , Florida 32 6 01

STATEMENT OF THE ISSUE

W hether the Respondent 's issuance of a n Underage

Prohibition Order is appropriate or should be rescinded.

PRELIMIN ARY STATEMENT

Pursuant to Section 4 - 53, Gainesville Code of Ordinances,

Respondent, City of Gainesville, issued an Underage Prohibition

Order dated Octobe r 15, 2012, to Petitioner, Fubar , which was

served on October 25 , 20 1 2. Petitioner objected to the e ntry of

this Order and requested this administrative proceeding.

By letter dated October 31 , 20 1 2 , Respondent timely filed a

request for hearing. The case was forwarded to the Division of

Administrative Hearings on or about November 13 , 201 2 .

Petitioner filed a Motion to Dismiss which was denied. A

Notice of H earing was issued on December 3 , 201 2 , scheduling the

hearing for January 28, 2013 . The hearing took place as

scheduled. At the hearing, Petitioner presented the testimony

of Matthew Merdian and Charles Wi lliams . Petitioner 's E xhibits

numbered 1 and 2 were admitted into evidence. Respondent

presented the testimony of Officers Marquitta Brown, Lonnie

Scott, Justin Torres, and Jeffrey Guyan of the Gainesville

Police Department, and Special Agent E rnest Wilson of the

Florida Division of Alcoholic Beverages and Tobacco.

Respondent's Exhibit s numbered 1 through 31 w ere admitted into

evidence. Official r ecognition was taken of the Final

Declaratory Judgment issued in Grog House, Inc. v. City of

Gaine sville , Case No. 01 - 2009 - C A - 1691 (Fla. 8th Jud. Cir.) , and

Grog House, Inc. v. City of Gainesville , 37 So. 3d 969 (Fla. 1st

DCA 2010).

A two - volume T ranscript was filed on February 13, 2013.

Respondent timely filed Proposed Findings of Fact and Petitione r

timely filed a Proposed Recommended Order, which have been

considered in the preparation of this Recommended O rder.

FINDINGS OF FACT

1. Respondent, the City of Gainesville ( the City), is a

municipal corporation organized under the laws of the State of

Florida.

2. Petitioner, Fubar, is an alcoholic beverage

establishment as defined in section 4 - 51, Gainesville Code of

Ordinances, located in Gainesville. The occupancy load for

Fubar is greater than 201 persons.

3. Section 4 - 51, Gainesville Code o f Ordinances (the

Ordinance) , defines "underage drinking incident" and "underage

prohibition order" as follows :

Underage drinking incident means any

physical arrest or notice to appear (NTA)

issued for possession or consumption of an

alcoholic beverage by a person under the age

of 21 which results in an adjudication of

guilt, finding of guilt with adjudication

withheld, waiver of right to contest the

violation, plea of no contest including, but

not limited to, payment of fine or civil

penalty, or entering i nto an agreement for

deferred prosecution.

Underage prohibition order means an order

issued by the city manage r or designee which

prohibits a n alcoholic beverage

establishment as herein defined, from

admitting patrons under t he age of 21 into

such establishments during specified times.

4 . Pursuant to section 4 - 53 of the Ordinance, an underage

prohibition order will be issued to an alcoho l ic beverage

establishment if 10 or more unde rage drinking incidents occur at

that estab lishment during any quarter when the establishment h as

an aggregate occupancy load of greater than 201.

5 . On October 15, 2012, a Prohibition Order was issued

pursuant to the Ordinance and served upon Petitioner on

October 25, 2012, based upon 13 und erage drinking incidents that

occurred in one calendar quarter .

6. Subsequent to the issuance of the Prohibition Order, an

additional three u nderage drinking incidents occurred . The City

gave notice to Fubar of these subsequent incidents on January 7,

2012 , and they were considered as part of this case .

7 . Fubar is located in the "downtown district" of

Gainesville , which is a square roughly located between Northwest

3rd Avenue, Southwest 3rd Avenue , Southeast 3rd Street , and

Northeast 3rd Stree t.

8 . The duties of the Gainesville Police Department (GPD)

officers assigned to patrol this downtown area include going

into establishments that sell alcoholic beverages to check for

underage drinking , a common problem in Gainesville, a college

tow n .

9 . Four GPD officers who made arrests at Fubar testified

at hearing. While on patrol for underage drinking , the officers

enter Fubar , and similar establishments in the downtown area,

wearing uniforms. Typically, it is the underage offender's

actions that alert the officers to a possible incidence of

underage drinking. That is, upon seeing a uniformed officer, an

underage drinker may attempt to hide an alcoholic drink, quickly

put a glass or cup down, quickly drink the contents of a cup and

attempt t o throw it away, or quickly hand the drink to someone

of legal drinking age.

10 . The officers have access to law enforcement databases

not generally available to the public known as " DAVID " and

" FCIC/NCIC , " which allow them to obtain photos and other

ide ntifying information regarding the suspected underage

offenders .

11 . All four officers who made arrests at Fubar for

underage drinking also made arrests for that offense at similar

establishments in downtown Gainesville.

12 . Of the 16 total underage dr inking incidents which

occurred at Fubar during the relevant time period , the evidence

at hearing proved that the City made 15 arrests for underage

drinking at Fubar and secured 15 deferred prosecutions .

13 . The parties stipulated that four of these arrests wer e

of persons who possessed fake or fraudulent identification

cards, or identification cards belonging to other persons. 1/

14 . The remaining arrests made were of underage persons

wearing Ð under - 21 Ñ wrist bands who were found to be in possession

of alcohol , and persons who were wearing legal age wrist bands,

but who were actually underage. However, there is insufficient

competent evidence to establish how these individuals obtained

the alcoholic beverages or the legal age wrist bands. 2/

15. On on e night, Officer Scott arrested an underage

person in Fubar who, upon seeing Officer Scott, placed a drink

down on a pool table. Officer Scott observed what appeared to

be an off - duty Fubar "bouncer" standing near the underage

offender and playing pool . This offender was in possession of

someone else's ID showing legal drinking age.

16. At the time of the hearing, there were no

administrative actions filed against Fubar's alcoholic beverage

license by the Division of Alcoholic Beverages and Tobacco.

17 . None of the law enforcement officers t estified that

they observed underage person s obtain ing alcohol from any

employee of Fubar.

Efforts of the Petitioner

18 . Matthew Merd i an is the owner of Fu bar. Mr. Merdian

has been either a manager or owner of bars for the past 16

year s. Mr. Merdian is knowledgeable about the laws regarding

underage drinking and of the best practices in the industry

regarding this issue.

19. Persons who are under 21 are allowed to enter Fubar

and similar establishments i n Gainesville. Fubar di fferentiates

between underage and legal age patrons by the use of wrist bands

which have the Fubar logo on them. The patron presents his or

her identification at the front door. The Fubar logo is

repeated ar ound the entire band for legal age patrons, but the

band designating underage patrons states "under 21" in bold

letters and has a small logo. Wrist band colors are alternated

nightly, therefore colors are not repeated on consecutive night s

and the sequence is not repeated the fol lowing week. The

wrist bands are designed to show efforts of tampering in an

attempt to prevent under a ge patrons from obtaining wrist bands

given to legal age patrons. The only persons who have access to

the wrist bands are Mr. Merdian and his general m anag er,

Charles Williams.

20. Petitioner actively participates in a responsible

hospitality vendor program furnished by Regulatory Compliance

Services at a cost of $1,200 per year. Mr. Merdian ,

Mr. Williams, and staff attend those training programs.

21. P etitioner has adopted a written manual for door and

security personnel that incl udes several specific directives for

the prevention of underage drinking and the responsibilities of

individual employees to further these policies. The manual

instructs the f ollowing:

Receive and account for over - 21

wristbands

Every patron is to present a valid ID

Valid ID is: US driver's license,

pa ssport card, military ID, state -

issued ID

IDs may NOT be expired

UNACCEPTABLE IDs: Birth Certificate,

Social Security Card, out of US

driver's license, school ID

IDS are checked with face, height, and

weight

If a person is ques tionable ask a

detail such as "W hat's your middle

name?"

Asking for a middle name usually t hrows

a person off who is lying

Anyone presenting a "fake ID" will be

turned away

All other questions concerning validity

will be brought to the attention of the

manager

Upon reentry of patrons, check the

wristband to make sure it hasn't been

altered or switched with a different

patron.

22. Employees are subject to su spension or termination for

violating the above policies regarding underage patrons. At

times, Mr. Merdian has paid a cash "reward" for successfully

preventing admission of someone using a fraudulent ID. Fubar

trains its employees as to these policies an d reviews them each

quarter when they go through the responsible vendor program.

All employees participate in this program.

23. Fubar trains and instructs its doormen to require a

picture ID for all patrons and further instructs them regarding

measures to ensure that the ID is valid and belongs to the

person who presented it.

24. Fubar uses a fluorescent UV light to identify

holograms which are present on valid Florida driver's licenses

and which are not present on fake IDs. Wristbands are checked

to ensure that they are not frayed or tampered with , which are

indication s that they have been taken off and used again.

25. Mr. Merdian makes an effort to employ older doormen,

preferably with military background s , wh o follow instructions

and are less like ly to be friends with patrons .

26. Fubar's security employees circulate within the

establishment l ooking for Ð under - 21 Ñ wristbands and the kind of

body language previously described by police witnesses which

raise s suspicions of under age patrons trying t o evade detection .

Fubar employs both door staff and security personnel, both of

which have responsibilities concerning the prevention of

underage drinking at their establishment.

27. Additionally, bartenders are instructed to ask for ID

if they have a suspicion that an underage patron is banded with

a legal age wrist band. In addition to possible termination,

b artenders are also instructed about potential personal criminal

liability for serving underage patrons .

2 8 . There was no evidence that an emplo yee of Fubar was

observed selling or giving an underage drinker any alcoholic

beverage.

29. Mr. Merdian has visited every club of a similar nature

in downtown Gainesville, and he has not observed any practices

in those clubs that he finds superior to the ones employed by

Fubar.

30. In the past, t he general m anager, Mr. Williams, worked

as a security employee at the club under previous ownership.

His duties included checking IDs and looking for underage

drinkers. He carries on these res ponsibilities as part of being

general m anager. He personally works with new security

personnel for a few nights until they feel comfortable with

their responsibilities. Mr. Williams keep s track of the

wristbands, stores them in a locked location, and personally

gives t hem to the doorman each night. Mr. Williams is on the

premises every night that Fubar is open.

CONCLUSIONS OF LAW

31 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120.569, 12 0.57, 120.65(7), Fla. Stat. (20 1 2 ) . 3/

The City , as the party asserting the affirmative, has the

ultimate burden of proof by a preponderance of the evidence.

See Fla . Dep't. of Trans p . v . J.W.C., Inc. , 396 So . 2d 778 (Fla.

1st DCA 1981); § 120.57(1) (j), F la. Stat . (2012) .

32. Pursuant to section 4 - 53 of the Ordinance, an underage

prohibition order will be issued to an alcohol ic beverage

establishment if 10 or more underage drinking incidents occurred

at that establishment during any quarter when the esta blishment

has an aggregate occupancy loa d of greater than 201.

33 . Section 4 - 53 of the Ordinance sets out the process for

the establishment subject to an underage prohibition order to

request a n administrative hearing, and , prior to judicial

modification , read s in pertinent part:

(c)(4) . . . The lack of actual knowledge

of, acquiescence to, participation in, or

responsibility for any underage drinking

incident for this hearing on the part of the

owner or agent shall not be a defense by

such owner or agen t.

34 . The above - quoted language was challenged in circuit

court in the case of Grog House v. City of Gainesville , Case

No. 01 - 2009 - CA - 1691 (Fla. 8th Jud. Cir.) aff'd Grog House, Inc.

v. City of Gainesville , 37 So. 3d 969 (Fla. 1st DCA 2010). The

circ uit court found that the challenged sentence conflicts with

section 562.11(1)(c), Florida Statutes, and Florida

Administrative Code Rule 61A - 3.052 . The circuit court noted:

B oth the statute and rule allow an Òinnocent

owner defenseÓ which is premised on a n

underage patron falsely evidencing that they

are of legal age, that a reasonable person

would believe their appearance is of a

person of legal age and that the

establishment had procedures in place to

re asonably check the identification of

patrons.

The circuit court struck the last sentence , finding it was

preempted by state law , and that it "conflicts with the purpose

of the Ordinance (preventing underage patrons in establishments

that do not reasonably try to prevent underage drinking) by

preventing th e establishment from presenting evidence as to its

reasonable efforts to prevent underage consumption."

35 . The Final Judgment of the circuit court expressly

struck the challenged language prohibiting the consideratio n of

the innocent owner defense: ". . . the last sentence of S ection

4 - 53(c)(4) which is hereby stricken." The First District Court

of Appeal in its per curiam opinion did not reverse or modify

the circuit court's order, and the circuit court's order with

respect to the last sentence of sect ion 4 - 53(c)(4) remains

intact .

36. The undersigned is persuaded that the last sentence of

section 4 - 53(c)(4) prohibiting the innocent owner defense in

this and other similar proceedings was struck by the circuit

court for all purposes. The City has prov en that it arrested 15

patrons for underage possession of alcohol and that it secured

15 adjudications. That is sufficient to establish a p rima facie

case under section 4 - 53 of the O rdinance. It is next

appropriate to examine whether Petitioner has prove n its

innocent owner defense.

3 7 . Courts have applied a reasonable diligence standard in

alcoholic beverage licensure cases involving the sale of alcohol

to underage persons. See Pic N' Save Cent. Fla., Inc. v. Dep't

of Bus. Reg., Div. of Alcoholic Beve rages & Tobacco , 601 So. 2d

245 (Fla. 1st DCA 1992). The undersigned is well aware that the

instant case does not involve licensure. However, in light of

the language prohibiting the innocent owner defense contained in

the Ordinance being stricken by the Grog court , and the

restrictions imposed by the Ordinance on the licensee, the

reasonable diligence standard discussed in Pic N' Save is, if

not controlling, instructive.

38 . The preponderance of the evidence established that

Petitioner instructs and tr ains its doormen and security

employees to check IDs upon entry to the premises. It has a

written manual detailing ways to identify underage patrons

and/or fake or fraudulent IDs . Wrist bands are used when a

patron enters the premises identifying legal ag e and under age

patrons. A system is in place to le ssen the possibility that

wrist bands could be taken off and used by another patron, or

reused on another night. Petitioner employs the use of a

fluorescent UV light to identify holograms which are not pre sent

on fake Florida IDs. The owner and employees of Petitioner

regularly participate in a responsible hospitality program . The

one instance in which Officer Scott observed what appeared to be

an off - duty Fubar employee standing near an underage offe nder is

not persuasive in establish ing lack of reasonable diligence on

behalf of Fubar.

39. The undersigned concludes that in employing the

measures set forth herein, Petitioner was reasonably diligent

with respect to instances in which an underage patron ob tained

alcohol from another person of lawful age; that Petitioner was

reasonably diligent with respect to instances of an underage

patron obtaining a wristband from a patron of legal age; and

that Petitioner was reasonably diligent with respect to the

ins t ances involving the use of fal se driver's licenses.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

R ecommended that the Underage Prohibition Order issued to

Fubar be vacated.

DONE AND ENTERED this 14 th day of M arch , 20 1 3 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14 th day of March , 201 3 .

ENDNOTES

1/ Officer Scott testified that he confiscated false licenses

and tendered them to his sergeant for safekeeping. The

confiscated IDs are apparently kept in a bag of some sort at

GPD. The licenses are not in evidence. Petitioner argues that

the licenses were sought in discovery but only one was produced.

However, the docket does not reflect a motion to compel. While

Officer Scott of fered testimony that the photographs on some of

the driver's licenses did not resemble the individuals who

presented the license as identification, the undersigned finds

this testimony to be unpersuasive, lacking sufficient detail,

and prejudicial to Petit ioner , who did no t have the opportunity

to cross - examine Officer Scott as to each individual license.

2/ The record reflects references to hearsay statements made by

the underage individ uals as to how they obtained an alcoho lic

beverage or how their wris t bands were obtained, e.g., that

someone handed them a drink or that they obtained a wrist band

from p ersons who were of lawful age. However, these statements

are not sufficient in themselves to support a finding of fact as

contemplated by section 120.57(1 )(c), Florida Statutes.

3/ Constitutional issues were also raised but will not be

addressed , as the undersigned lacks jurisdiction to determine

those issues. Dep't of Rev. v. Young Am. Builders, Inc. , 330

So. 2d 864, 865 (Fla. 1st DCA 1976); Rice v. Dep 't of HRS , 386

So. 2d 844, 847 (Fla. 1st DCA 1980).

COPIES FURNISHED :

Lee C. Libby, Esquire

City of Gainesville

Suite 425

200 East University Avenue

Gainesville, Florida 32601

Gary S. Edinger, Esquire

Gary S. Edinger and Associates, P.A.

305 No rtheast 1st Street

Gainesville, Florida 32601

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to sub mit written exceptions within

10 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be fil ed with the agency that

will issue the Fi nal Order in this case.