12-003867 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. 7 Eleven, Inc., And Ptl Associates, Inc., D/B/A 7 Eleven Store No. 32599a Status: Closed Recommended Order on Wednesday, March 27, 2013.

Summary: Respondent sold beer to underage purchaser.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3867

)

7 ELEVEN, INC., AND PTL )

ASSOCIATES, INC., d/b/a )

7 ELEVEN STORE NO. 32599A , )

)

Respon dent . )

)

RECOMMENDED ORDER

On February 6, 201 3 , an administrative hearing in this case

was held by video tele conference in Fort Myers and Tallahassee,

Florida, befor e William F. Quattlebaum, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Andrew R. Fier, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Timothy Joseph Perry, Esquire

Oertel, Fernandez, Bryant

and Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE S

Whether the Respondent committed the offense alleged in the

Administrative Complaint dated August 14, 2012, and , if so, what

penalties, if any, should be imposed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated August 14, 2012, the

Department of Business and Professional Regulation, Division of

Alcoholic Beverages and Tobacco (Petitioner) , alleged that

7 Eleven , Inc., and PTL Associate s, Inc., d/b/a 7 Eleven Store

No . 32599A (Respondent) , allowed an underage female to purchase

an alcoholic beverage. The Respondent disputed the allegation

and requested a formal administrative hearing.

On November 29, 2012, the Petitioner forwarded the d ispute

to the Division of Administrative Hearings (DOAH), which

scheduled and conducted the formal hearing.

At the hearing, the Petitioner presented the testimony of

four witnesses and had Exhibits 1 through 8 and 10 admitted into

evidence. The Respondent presented the testimony of four

witnesses and had Exhibits 3 through 7 admitted into evidence.

The T ranscript of the hearing was filed on February 25,

201 3 . Both parties filed p roposed r ecommended o rders that have

been considered in the preparation of th is Recommended Order.

Prior to the hearing, the parties submitted a Joint

Prehearing Stipulation including a statement of admitted facts

that have been adopted and are incorporated herein.

FINDING S OF FACT

1. PTL Associates, Inc., d/b/a 7 Eleven Store No . 32599A

(PTL) , is a convenience store located at 4401 Colonial Boulevard,

Fort Myers, Florida 33912.

2. Lucia D ' Costa is the sole shareholder of PTL.

3. Since October 12, 2011, and at all times material to

this case, the Respondent has been licensed by t he Petitioner to

sell alcoholic beverages under license nu mber BEV 4604710,

Series 2APS.

4. According to a document titled "Record of Inspection --

Official Notice," on July 19, 2012, an employee of the Respondent

sold an alcoholic beverage to an underage i ndividual after

checking the individual ' s identification. The document advised

the Respondent that a follow - up compliance check would take place

w ithin the subsequent 12 weeks.

5. The Petitioner took no disciplinary action against the

Respondent based on the July 19, 2012 , compliance check.

6. The Respondent has not been the subject of any prior

disciplinary proceeding related to the license referenced herein.

7. On August 2, 2012, the Petitioner conducted an

undercover compliance check as a follow - up t o a compliance check

done on July 19, 2012, to determine whether the Respondent was

selling alcoholic beverages to underage individuals. The

compliance check was performed by two of the Petitioner ' s agents,

Jennifer Nash and David Foraker, with the assist ance of a 16 -

year - old female identified as Investigative Aide FT0205 (IA).

8. On August 2, the IA entered the store accompanied by

Agent Nash, while Agent Foraker remained in the vehicle outside

the store. Ms. D ' Costa was present in the store, behind the

counter and operating multiple store sales registers. Two

employees were also present, occupie d with various cleaning

tasks.

9. The IA walked to the beverage cooler and withdrew a

16 ounce Coors Light, carried it to the counter area, and stood

in line t o pay for the beer. Ms. D ' Costa took the beer from the

IA, scanned the beer into the sales register, and completed the

transaction. Ms. D ' Costa did not ask the IA to produce any form

of identifi cation to verify the IA ' s age.

10. While the transaction oc curred, Agent Nash observed the

AI and Ms. D ' Costa, initially from inside the store, and then

from outside while looking through large windows on the

storefront.

11. Although while in the store Agent Nash spoke to

Ms. D ' Costa to ask for driving directio ns, Agent Nash d id not

interfere wi th the sale of beer to the IA.

12. There is no evidence that Agent Nash prompted

Ms. D ' Costa to sell the beer to the IA, or that she interfered in

the transaction in any way.

13. Some, but not all, of the Respondent ' s c ash registers

have software to prompt a register operator to verify a

customer ' s age during the sale of an alcoholic beverage. When

Ms. D ' Costa sold the beer to the IA, she used a register that did

not prompt the sales clerk to verify the customer ' s age.

14. Ms. D ' Costa testified that she does not usually operate

the sales registers and that the clerks are usually responsible

for the counter operation. She testified that , at the time of

the compliance check on August 2, 2012, the two employees present

we re cleaning the store in anticipation of a monthly inspection ,

and , therefore , Ms. D ' Costa was working alone at the sales

registers.

15. The inspection referenced by Ms. D ' Costa is a routine

monthly inspection conducted by corporate representatives at a

t ime unknown to the licensee until the representatives arrive.

16. It is reasonable to presume, given the nature of the

inspection, that store cleaning would be an ongoing obligation of

a licensee. The testimony fails to suggest that a licensee is

exemp t from compliance with laws prohibiting underage alcohol

sales when employees are busy.

17. After completing the purchase, the IA left the store

and delivered the beer to Agent Foraker. The Petitioner ' s agents

then went into the store to notify Ms. D ' Cos ta that the

transaction had taken place and to deliver to her a "Record of

Inspection - - Official Notice" and a "Notice to Appear."

18. Ms. D ' Costa testified at the hearing that she believed

the IA to be at least 30 years of age on August 2, 2012.

19. Th e IA participated in seven undercover compliance

checks on August 2, 2012. The Respondent was the only store that

did not check the IA ' s identification during a compliance check.

20. Ms. D ' Costa also testified that the franchise agreement

could be brea ched by a suspension of the alcoholic beverage

license. The franchise agreement was not offered into evidence

at the hearing.

21. The Petitioner has a written policy of not utilizing

children or other relatives of the Petitioner ' s employees as IAs.

At t he time the compliance check was conducted on August 2, 2012,

the Petitioner was apparently unaware that the IA was related to

an employee of the Petitioner. After the Petitioner learned of

the relationship, the IA was not again utilized in making

complia nce checks. The evidence fails to establish that the

relationship between the IA and an employee of the Petitioner

prompted Ms. D ' Costa to sell the beer to the IA without checking

whether the IA was of legal age to purchase alcohol.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla . Stat . (2012).

23. The Petitioner has the burden of proving by clear and

convincing evidence the allegati ons set forth in the

Administrative Complaint against the Respondent. Dep ' t of

Banking & Fin . v. Osborne Stern & Co . , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 19 87). The

burden has been met.

24. Section 562.11(1)(a)1., Flor ida Statutes (2012),

prohibits the sale in Florida of an alcoholic beverage to a

person under 21 years of age.

25. Section 561.29, Florida Statutes (2012), provides in

relevant part as follows:

(1) The [Petitioner] is given full power and

authority to re voke 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

emplo yees, 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. . . .

26. The Courts have consistently held that the Petitioner ' s

authority under the preceding statute is limited to acts

personally committed by the licensee. See Pic N ' Save, Inc. v.

Dep ' t of Bus . & Prof'l Reg . , Div. of Alcoholic Beverage s &

Tobacco , 601 So. 2d 245 (Fla. 1st DCA 1992) . The evidence

clearly establishes that , on August 2, 2012, Ms. D ' Costa, the

licensee, sold a beer to a person who was not of legal age to

p urchase an alcoholic beverage.

27. The Respondent has asserted that the IA to whom

Ms. D ' Costa sold the beer appeared to be at least 30 years of

age. An action against a licensee charged with the sale of an

alcoholic beverage to an underage person can be defended on such

basis pursuant to Florida Administrative Code Rule 61A - 3.052,

which provides in relevant part as follows:

61A - 3.052 Identification to Verify Age.

(1) A licensee who 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 a ny

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 ordin arily prudent

person would believe the person is of legal

age to purchase or consume those products,

and if the licensee attempted to verify the

person ' s age by checking one of the following

forms of identification with respect to the

person:

(a) A drive r ' s license, issued by any

government agency, domestic or foreign,

provided it includes a photograph;

(b) Identification cards issued by any

state, provided it includes a photograph;

(c) Passports;

(d) An identification card issued by any

branch of t he United States military which

shows the customer is currently serving in

the United States Armed Services or is a

family member of a person currently serving

in the United States Armed Services. . . .

( e mphasis added ) .

28. The Petitioner performed sev en compliance checks on

August 2, 2012 , using the same IA. The Respondent was the only

sales outlet that did not ask the IA to verify her age,

suggesting that the other outlets believed the IA appeared to be

sufficiently youthful as to require that she es tablish her age.

In this case, Ms. D ' Costa failed to make any attempt to verify

the age of the purchaser, and the defense provided by the cited

rule is unavailable.

29. Florida Administrative Code Rule 61A - 2.022(11) provides

disciplinary guidelines rel evant to this case. According to the

guidelines, the penalty for a first violation of s ection 562.11,

Florida Statutes, is a fine of $1,000 and a license suspension of

seven days. There are no aggravating or mitigating circumstances

that support a variat ion from the penalty set forth in the

guidelines.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco, ent er a f inal o rder suspending the license referenced

herein for a period of seven days and imposing a fine of $1,000

against the Respondent.

DONE AND ENTERED this 27th day of March , 2013 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of March , 2013 .

COPIES FURNISHED:

Andrew R. Fier, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

Timothy Joseph Perry, Esquir e

Oertel, Fernandez, Bryant

and Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 07 92

Allen Douglas, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 1020

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties ha ve 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.