13-000822 Spannk vs. City Of Gainesville Status: Closed Recommended Order on Tuesday, August 27, 2013.

Summary: Because Petitioner used reasonable diligence to prevent underage drinking on its premises, it is recommended that the City rescind its Underage Prohibition Order.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SPANNK,

Petitioner,

vs. Case No. 13 - 0822

CITY OF GAINESVILLE,

Respondent.

/

RECOMMENDED ORDER

This case is before Lawrence P. Stevenson, a duly -

designated Administrative Law Judge with the Division of

Administrative Hearings , on the parties' Joint Motion for

Summary Final Order, filed on May 20, 2013 , and granted by order

dated May 21, 2013, in which the parties requested that a

recommended order be entered based on their stipulations of fact

and evidentiary submissions, in lieu of a final hearing .

APPEARANCES

For Petitioner: Cary W. Meldon , Esquire

Law Offices of Jeffrey Meldon

730 North Main Street

Gainesville , Florida 3 2601

For Respondent: Lee C. Libby, Esquire

City of Gainesville

Suite 425

200 East University Avenue

Gainesville , Florida 3 2601

STATEMENT OF THE ISSUE

T he issue is whether the City of Gainesville ("City")

properly issued an Underage Prohibition Order to Petitioner,

Span n k , pursuant to Section 4 - 53, Gainesville Code of

Ordinances .

PRELIMINARY STATEMENT

On February 21, 2013 , the City served Daniel J. Robinson ,

owner and operator of Spa n nk , with an Underage Prohibition

Order, dated February 12, 2013 , that ordered Spannk to cease

permitting persons under the age of 21 to enter its premises

from 9 p.m. to 2 a.m. for a period of 90 days, pursuant to

s ectio n 4 - 53, Gainesville Code of Ordinances . On March 4, 2013 ,

Spannk timely requested an administrative hearing to contest the

issuance of the Underage Prohibition Order. On March 8, 2013 ,

2012 , the City referred the case to the Division of

Administrative Hearings (" DOAH " ) .

The case was scheduled for hearing on May 30, 2013. On

May 20, 2013, the parties filed a Joint Motion for Summary Final

Order, which was granted on May 21, 2013. The parties made

cer tain factual stipulations and each party submitted a set of

stipulated exhibits.

Spannk's Exhibits 1 through 5 are hereby admitted into

evidence. These exhibits include the sworn witness statements

of Mr. Robinson, Spannk doorman Sean O'Brien, and Spann k

security manager Paul John Zurich, as well as a copy of Spannk's

door policy and the originals of 13 false or fraudulent

identification cards that had been confis cated by Spannk

employee s from underage patrons who had attempted to use them to

gain admitt ance to Spannk.

The City's Exhibit 1 and composite Exhibit 2 are hereby

admitted into evidence. These include a copy of the executed

and served Underage Prohibition Order and copies of the redacted

notices to appear and deferred prosecution/disposition fo rms for

18 underage individuals found in possession of alcoholic

beverages in Spannk by officers of the Gainesville Police

Department ("GPD").

The parties filed their P roposed R ecommended O rders on

June 3, 2013.

FINDINGS OF FACT

1. The City is a municipal corporation organized under the

laws of the State of Florida. In 2009, the City adopted

Chapter 4, Article III of the Gainesville Code of Ordinances,

titled "Underage Prohibition in Alcoholic Beverage

Establishments," referenced herein as the "Ordinance. "

2. Spannk is an alcoholic beverage establishment as

defined in s ection 4 - 51 of the Ordinance and is located within

the city limits of the City. Spannk 's address is 15 Southwest

2nd Street , Gainesville, Florida.

3. Section 4 - 51 of the Ordinance defines "underage

drinking incident" 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 into an agreement for

deferred prosecution.

4. Section 4 - 51 of the Or dinance defines "underage

prohibition order" as "an order issued by the city manager or

designee which prohibits an alcoholic beverage establishment as

herein defined from admitting patrons under the age of 21 into

such establishment during specified times ."

5. Section 4 - 53 of the Ordinance provides that an

alcoholic beverage establishment will be issued an underage

prohibition order if a certain number of underage drinking

incidents have occurred at the establishment during a given

calendar quarter. For alcoholic beverage establishments with an

aggregate occupancy load of fewer than 201 persons, the number

of underage drinking incidents triggering a prohibition order is

five or more in a quarter. For establishments with an aggregate

occupancy load of mor e than 201, the number is ten or more in a

quarter.

6. The parties have made the following stipulations of

fact, which are hereby accepted:

1. The parties stipulate that the Occupancy

Load for Spannk is greater than 201 persons,

thereby requiring a showi ng of ten (10) or

more underage drinking incidents.

2. Spannk stipulates that based upon the

certified copies of the Notices to Appear

and individual court dispositions, including

Deferred Prosecution Agreements and/or

Judgments and Sentence to be offer ed by the

Respondent, that twelve (12) "underage

drinking incidents" as defined in s ection 4 -

51, Code of Ordinances, did occur in Spannk

during the 4th quarter of 2012.

3. Spannk was served with an Underage

Prohibition Order on February 21, 2013,

which was entered by Russ Blackburn, City

Manager, on February 12, 2013, in accordance

with the procedures set forth in s ection 4 -

53, Gainesville Code of Ordinances.

4. The City followed all of the procedural

requirements set forth in s ection 4 - 53,

Gainesvill e Code of Ordinances.

5. Danny Robinson has been the owner and

operator of Spannk since it opened in 2008.

6. In order to eliminate the occurrence of

underage drinking incidents, Spannk has

instituted the following policies and

procedures:

a. Maintains a strict identification

policy , which includes:

i. Requesting identification from every

customer entering Spannk, in the form of a

driver's license, ID card from the DMV,

passport, or military ID.

ii. Requesting a second form of

identificati on when an out - of - state license

is presented.

iii. Questioning patrons who appear younger

than 21 or who raise suspicion about their

birthdays, addresses, and Zodiac signs.

b. Maintains a strict wristband policy ,

which includes:

i. Using blue wris tbands from Domino's

pizza to indicate that patrons are at least

21 years old.

ii. Using yellow wristbands to indicate

that patrons are under the age of 21, or

alternatively not giving wristbands to

underage patrons and ensuring that the staff

knows "No band = no drink."

iii. Ensuring that, when door staff places

wristbands on entering patrons, such bands

are tight enough so that they cannot be

easily removed.

c. Maintains a strict entry/re - entry

policy , which includes:

i. Questioning patrons entering Spannk who

already possess wristbands, and ensuring

that they are the wristbands used by Spannk.

ii. Prohibiting any patron from bringing

into Spannk any type of cup, bottle, or can

and requiring all outside drinks to be

consumed prior to entering Spannk.

iii. Prohibiting under - age patrons who have

left Spannk from re - entering the premises.

iv. Checking any large purse brought into

Spannk by any patron, and prohibiting

backpacks from being brought inside Spannk.

d. Provides com prehensive training to all

Spannk staff, which includes:

i. Gainesville Police Department

Responsible Vender Programs.

ii. On - the - job training of new employees by

older, more experienced staff.

e. Consistently monitors Spannk premises to

prevent underage drinking by:

i. Requiring staff to "roam" the indoor

premises to ensure that patrons with

alcoholic beverages are wearing wristbands.

ii. Requiring staff to check for signs of

patrons tampering with or removing

wristband s .

iii. Requiring staff to periodically check

Spannk bathrooms to ensure that underage

patrons are not consuming alcohol.

f. Maintains a strict removal policy in the

rare event that a patron fails to comply

with Spannk policies or engages in underage

drinking by:

i. Removing any person of age who gives a

drink to an underage patron, and removing

the underage patron.

ii. Removing any patron who has snuck an

outside beverage into Spannk.

g. Ensures diligence and effective

communication among staff members while

patrons are on the premises by:

i. Requiring front and back - door staff to

communicate with each other to ensure that

they are aware of the occupancy number.

ii. Requiring a staff member who leaves his

assigned position to us e the restroom during

his/her shift to communicate this to the

rest of the staff.

iii. Prohibiting staff from visiting with

friends during work hours.

iv. Asking staff to communicate to police

if any problems with patrons arise during

work hours.

7 . On February 21, 2013, the City served Spannk with an

Underage Prohibition Order (the "Order"). The Order, dated

February 12, 2013, was based on 11 underage drinking incidents

that occurred at Spannk during the fourth quarter of 2012.

Subsequent to the issuance of the Order, an additional underage

drinking incident arose. Spannk was given timely notice of th is

additional incident on May 7, 2013, and it became part of this

case.

8. In its exhibits, the City included documentation for

s ix underage drinking incidents at Spannk other than those to

which the parties stipulated. Five of those six incidents

occurred outside of the fourth quarter of 2012 and are therefore

irrelevant to establishing a violation of s ection 4 - 53 of the

Ordinance . The sixth additional incident has not been

considered because the City did not establish that Spannk was

given sufficient notice of the City's intended reliance on it.

9. The stipulated exhibits demonstrated that the City

secured deferred prosecutions in 10 of the 12 arrests that GPD

officers made f or underage drinking incidents at Spannk during

the fourth quarter of 2012. One of the arrests resulted in a

pre - trial intervention agreement because a post - arrest search of

the defendantÓs purse revealed th at she was in possession of a

controlled substance. The twelfth arrest resulted in a plea of

nolo contendere and the courtÓs withholding adjudication and

placing the defendant on six monthsÓ probation.

10 . Of the 12 arrests made in Spannk during the four th

quarter of 2012, five were instances in which the underage

patron gained entry to the bar by presenting false

identification. Upon successfully presenting the false ID to

the doorman, the patron would be given a blue "over 21"

wristband that allowed th e purchase of alcoholic beverages in

Spannk. Persons under 21 were allowed into the bar, given a

yellow Ðunder 21Ñ wristband, and not served alcoholic beverages.

11 . Three of the five instances of false ID involved the

presentation of valid IDs that belonged to other persons who

were over the age of 21. In one of those three instances, the

suspect presented the doorman with his older brotherÓs ID. None

of the arrest repor ts indicate s whether or not the arresting GPD

officer believed the photo on the ID resembled the suspect. No

other evidence was presented as to whether the suspects

resembled the photos on the IDs they presented to the Spannk

doorman.

12. In two of the f ive instances of false ID, the underage

patrons presented the doorman with forged IDs that indicated

they were over 21 and obtained blue wristbands. Neither of the

arrest reports expressly states that the suspect appeared to be

under 21, but the fact that the officer saw cause to investigate

allows for the inference that the suspects did not appear to be

of legal drinking age.

1 3 . In each of these five instances, the suspect had been

given a blue wristband by the doorman. The arresting officer

observed each of the five in possession of an alcoholic

beverage. Three of the five told the arresting officer that

they had bought drinks from the bar. One of the suspects gave

the arresting officer no indication of how she got the alcoholic

beverage she was hol ding. One of the forged ID suspects told

the arresting officer that someone else bought the drink he was

holding, but that he had earlier bought drinks for his friends

because he was wearing a blue wristband and they were not.

1 4 . One of the 12 arrests m ade in Spannk during the fourth

quarter of 2012 involved a patron who told the arresting officer

that she had shown the doorman her r eal ID, which indicated she

had just turned 20, but was given a blue wristband anyway. This

patron told the arresting offi cer that she had bought her drink

at the bar, and that she had smuggled a bottle of vodka into the

bar.

1 5 . Two of the 12 arrests involved underage patron s who

w ere wearing yellow wristband s but w ere seen holding alcoholic

beverage s . One of these patrons told the arresting officer that

he entered the bar using his real ID, and that his underage

friend had handed him the drink when he saw the officer

approaching. The second patron who was wearing a yellow

wristband and holding a beer told the arresting of ficer that she

had entered the bar using her own ID and ha d smuggled the beer

into the bar in her purse.

1 6 . The remaining four arrests involved idiosyncratic

details. One patron told the arresting officer that she worked

at Beef OÓBradyÓs, which used wristbands similar to those used

by Spannk, and that she brought a blue wristband into the bar

with her and put it on after obtaining admission to Spannk using

her own ID and receiving a yellow wristband. She purchased an

alcoholic beverage at the b ar in Spannk.

1 7 . Another patron told the arresting officer that she

used her own ID to get into the bar and received a yellow

wristband. She went into the bathroom and found a green

wristband. She put it on and was able to purchase a drink at

the bar despite the fact that Spannk does not use green

wristbands.

1 8 . One of the patrons told the arresting officer she

didnÓt know how the blue band made it to her wrist and did not

know whether the beverage she was holding had alcohol in it.

The arrest repo rt does not expressly state the officerÓs

findings as to the alcoholic content of the beverage.

1 9 . Finally, a GPD officer saw a patron who was wearing a

blue wristband and holding a drink but appeared to be under 21.

The patron refused to provide identi fication to the officer, who

arrested her. At the police station, the patron was found to be

in possession of a controlled substance (Adderall). This was

the arrest that resulted in a pre - trial intervention agreement.

This was also the only arrest in wh ich the arresting officer

expressly stated that the suspect appeared to be younger than

21; however, as stated above, the officersÓ investigations of

the various patrons permit the inference that the officers did

not believe that the patrons looked to be o f drinking age.

20 . The arrest reports indicate a variety of suspicious

behaviors cited by the arresting officers as grounds for

suspicion. In some cases, the patron placed the drink on the

bar or on a table when he or she saw the GPD officer

approaching . In two cases, the patron handed the drink to a

friend. Three patrons simply dropped their drinks when they saw

the officer. Two of the patrons attempted to conceal their

drinks from the officers.

2 1 . None of the arrest reports states that the GPD o fficer

observed an underage person obtaining an alcoholic beverage from

an employee of Spannk . The re was no indication of how long any

of the underage persons had been in possession of the alcoholic

beverages. There was no evidence that any employee of S pannk

knew that underage patrons were drinking alcohol and failed to

act on that knowledge.

2 2 . According to the arrest reports, six of the twelve

patrons who were arrested told the arresting officers that they

had purchased drinks at the bar. This number included four

persons who had obtained blue wristbands under false pretenses,

one who brought her own blue wristband into the bar, and one who

somehow purchased a drink while wearing a green wristband.

2 3 . The owner of Spannk, Danny Robinson, filed a witness

affidavit that stated as follows:

I have been in the bar business for 16 years

in Gainesville and before that I have worked

in the industry in Washington, D.C.,

Portland, Oregon and St. Thomas for a total

of 27 years. ItÓs pretty safe to say I have

extensive experience. A partner and I

started Speakeasy in 1997. I worked as the

bartender and trained staff. We would

attend GPD training classes provided to spot

fake IDs and deal with intoxicated people.

We would also attend the Fire Safety cou rses

put on by the Fire Marshall. These are the

years of training we would pass on to our

employees in the capacity of the Door Staff.

The responsible vendor class for bartending.

Teaching everyone the rules and correct

procedures for working in the bar business

and what we expected of them representing

our establishment. I only hire door staff

with experience and a positive attitude with

people - Ï generally older. I do not allow

students to work the door. I feel like

there is too much temptation to le t fellow

students in to drink underage. My staff

consists of ex - military, firefighters,

professionals with day jobs. For example,

two hold jobs with the government. One

works for TSA and the second one for the VA.

These men are all responsible, mature people

that I feel very good about having at the

front checking IDÓs and roaming throughout

the establishment looking for infractions.

We employ a strict door policy at both

Spannk and Speakeasy to avoid any trouble.

Only accepting valid driverÓs license s, DMV

ID card, military ID and passports. We do

not accept foreign IDÓs and foreign

passports. We donÓt know enough about them

to spot a fake. I have trained my employees

to question people if the picture doesnÓt

look right and thoroughly examine the I D

presented to them. If any questions pop up

about it they quiz the person and ask for a

second form of ID. We have collected quite

a few fake IDÓs and real ones not belonging

to the person using it. In the past

Lt. John Parrish from ABT has stopped by and

collected many of them.

Create a safer environment for people. We

had that open communication with the

downtown unit for years. The last year or

longer the faces have changed and the

communication has been very limited. If

someone has been arrested with fake ID or

passing a drink back and forth between an

underage and a person of age, we do not know

what the offense is and without this

communication we canÓt educate our staff to

be on the lookout even more than they

already are for these actions. W e patrol

inside of the club checking for correct

bands and are always on the lookout for kids

trying to share a drink. If underage

drinkers are caught doing so they are

removed immediately from the premises and if

the person of age provides someone with a

drink they are both removed. We show that

offender to the front door people so they

canÓt come back in and wristbands removed.

Fake IDÓs are becoming increasingly more

complex with the age of computers these

days. But we still manage to catch them. I

honestly feel we do a very good job at

keeping the underage people from drinking.

I am at the bars working every night and

pass my years of experience on to all my

employees on what to look for. We have

caught kids sneaking by getting their

friends drin ks. We, just like the police on

the street, have an obligation to look out

for people committing crimes inside the bar.

But people will break these laws even

knowing the consequences. We cannot [be]

everywhere at all times, but we do cover the

space and roam throughout all night looking

out for people drinking underage.

2 4 . Paul John Zurich, SpannkÓs security manager, does the

hiring and firing of all security personnel and has attended

multiple GPD responsible vendor educational programs. In his

affi davit, Mr. Zurich testified that in doubtful situations,

Spannk requires patrons to produce two forms of ID. The doormen

check the IDs for marks indicating they are fakes: the ID has

no hologram; the ID bends and shows wrinkles; or the dates on

the ID Ðd onÓt add up.Ñ If a patron Ós age seems questionable,

the security person will ask the patron to state his Zodiac

sign, or his address, or the height given on the ID. The

doorman will also ask the patron to provide a signature to

compare to the one on the ID card . Mr. Zurich testified that he

employs a spotter inside the bar to check for illegal activity,

and he requires all staff persons to take turns roaming the

premises to obs erve the activity of the patrons .

2 5 . Sean OÓBrien works as a doorman at Spannk on Satu r day

nights. Mr. OÓBrienÓs full - time job is with the Transportation

Security Administration (ÐTSAÑ) at Gainesville Regional Airport.

In his witness affidavit, Mr. OÓ Brien testified that the TSA has

specifically trained him in methods of checking for false or

fraudulent IDs. Mr. OÓBrien stated that he denies entry to

persons when he concludes they are presenting false

identification, and he denies entry to any person who does not

present identification regardless of that personÓs apparent age.

He removes underage persons who are caught in the bar with

alcoholic beverages. Mr. OÓBrien affirmed that employees are

constantly scanning the bar looking for underage persons who are

sneaking drinks.

CONCLUSIONS OF LAW

2 6 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569, 120.57, and 120.65(7), Fla. Stat.

(201 3 ).

2 7 . The general rule is that the burden of proof, apart

from a statutory directive, is on the party asserting the

affirmative of an issue before an administrative tribunal.

Young v. Dep't of Cmty. Aff. , 625 So. 2d 831, 833 - 834 (F l a.

1993); Dep't of Transp. v. J.W.C. Co. , 396 So. 2d 778, 788 (Fla.

1st DCA 1981); Balino v. Dep't of HRS , 348 So. 2d 349, 350 (Fla.

1st DCA 1977). In this case, the City is the party asserting

the affirmative and as such bears the burden of proof by a

preponderance of the evidence , pursuant to the general rule and

the specific terms of section 4 - 53(c)(5) of the Ordinance .

2 8 . Pursuant to section 4 - 53(a) of the Ordinance, an

underage prohibition order will be issued to an alcoholic

beverage establishment if 10 or more underage drinking incidents

occurred at that establishment during any quarter when the

establishment has an aggregate occupancy load of greater than

201. Spannk 's aggregate occupancy load exceeds 201 , and the

evidence established that 10 or more underage drinking incidents

occurred at Spannk during the fourth quarter of 2012.

2 9 . Section 4 - 53 (c) provides the standards for the

administrative hearing contesting the issuance of an underage

prohibition order as follows, in relevant part:

(3) Upon the timely filing of request for a

hearing, the city attorney is authorized to

arrange for the services of a hearing

officer.

(4) In conducting the hearing, the hearing

officer shall have the power to administer

oaths, issue subpoenas, compel t he

production of books, paper, and other

documents, and receive evidence. All

parties shall have an opportunity to

respond, to present evidence and argument on

all issues involved, to conduct cross -

examination and submit rebuttal evidence, to

submit propo sed findings of facts and

orders, to file exceptions to the hearing

officer's recommended order, and to be

represented by counsel. Hearsay evidence

may be used for the purpose of supplementing

or explaining other evidence, but it shall

not be sufficient i n itself to support a

finding unless it would be admissible over

objection in civil actions. 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 defense by such owner or agent.

(5) If the hearing officer finds, by a

preponderance of the evidence, that (a) the

requisite number of underage drinking

incidents have occurred within a quarter to

subject the alcoholic beverage est ablishment

to issuance of the underage prohibition

order; (b) the city complied with the

procedural requirements of subsection

(c)(1); and (c) none of the exceptions of

section 4 - 54 are applicable, then the

hearing officer shall prepare a recommended

order that upholds the issuance of the

underage prohibition order.

(6) If the hearing officer finds that the

criteria of paragraph (5) above have not

been met, then the hearing officer shall

prepare a recommended order to rescind the

underage prohibition orde r. ( e mphasis

added) .

30 . The Ordinance was challenged as facially

unconstitutional in Grog House, Inc. v. City of Gainesville,

Florida , No. 01 - 2009 - CA - 1691 (Fla. 8th Cir. Ct. Sept. 2, 2009),

aff'd per curiam , 37 So. 3d 969 (Fla. 1st DCA 2010). The

plaintiff alcoholic beverage establishments contended that the

Ordinance was preempted by state law, was directly inconsistent

with state law, and violated section 562.45(2)(c), Florida

Statutes, because it discriminated against licensees holding a

st ate beverage license. The circuit court held that curbing

underage drinking constitutes a valid municipal purpose and that

there was a rational basis for the City to believe the Ordinance

would serve this purpose. The circuit court also held that the

Ord inance was not expressly or impliedly preempted by state law.

3 1 . However, the circuit court found that the last

sentence of section 4 - 53(c)(4), emphasized above, "conflicts

with Florida Statutes, the Florida Administrative Code, and the

City of Gainesv ille's very purpose of enacting the ordinance and

must be stricken." The court found that the sentence conflicts

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

Administrative Code R ule 61A - 3.052, as well as section 4 -

55(b)(2) of the Ordinance it self. 1 / T he circuit court's analysis

was as follows:

Both the statute and rule allow an "innocent

owner defense , " which is premised on an

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

reasonabl y check the identifi cation of

patrons. The gist of the defense is that

the establishment did all things it

reasonabl y could have done to check patrons'

age and the patron illegally presented false

identification to consume alcohol. The last

sentence of section 4 - 53(c)(4) of the

Ordinance also conflicts with the purpose of

the Ordinance (preventing underage patrons

in establishments that do not reasonably try

to prevent underage drinking) by preventing

the establishment from presenting evidence

as to its reasonable efforts t o prevent

underage drinking.

3 2 . The First District Court of Appeal's per curiam

affirmance did not address the validity of the last sentence of

section 4 - 53(c)(4) because the City failed to timely raise the

issue. Thus, the circuit court's order striking the last

sentence of section 4 - 53(c)(4) remains in effect.

3 3 . The City contends that the "innocent owner" defense is

inapplicable to this proceeding because section 562.11, Florida

Statutes, is not the analogous statute to the Ordinance.

Sectio n 562.11 prohibits the sale or delivery of alcoholic

beverages to persons less than 21 years of age. The City argues

that the Ordinance does not prohibit or punish such sale or

delivery; rather, the Ordinance prohibits the unlawful

possession of alcoholic beverages by persons under 21 and is

therefore more analogous to section 562.111, Florida Statutes,

which contains no "innocent owner defense" provision.

3 4 . The City maintains that the innocent owner defense is

not relevant for offenses under the Ordina nce because the

Ordinance involves the possession and consumption of alcohol by

persons under 21 years of age . The innocent owner defense of

section 562.11(1)(c) applies only where an establishment or

person is charged with selling or delivering alcoholic beverages

to persons under 21 , and neither Spannk nor any employee of

Spannk is charged with any such offense.

3 5 . The City's analogy to section 562.111 is flawed. Th is

statute requires no innocent owner defense because its penalties

are directed at the underage person in possession of an

alcoholic beverage , not the owner of the bar in which the

underage person is arrested . Though the Ordinance is likewise

couched in terms of possession of alcoholic beverages by

underage persons, its penalties are direc ted at the alcoholic

beverage establishment in which the underage drinker is

apprehended by the police. In this way, the Ordinance is

clearly more analogous to section 562.11 and its express

innocent owner defense.

3 6 . Further, there is nothing in the la nguage of the

circuit court's decision in Grog House indicating an intent to

limit its scope in any way . The court held that the last

sentence of section 3 - 53(c)(4) "must be stricken" as conflicting

with the relevant statute, rule, and another provision of the

Ordinance itself. As of the date of this Recommended Order,

Grog House constitutes the controlling law of th e jurisdiction.

The City's argument that section 3 - 53(c)(4) precludes an

innocent owner d efense must therefore be rejected.

3 7 . The City has made a prima facie case under section 4 -

53 of the Ordinance. GPD officers made 1 2 arrests for underage

drinking incidents at Spannk during the fourth quarter of 2012,

and there were deferred prosecution s , adjudications , or pre -

trial intervention agreements in all 1 2 cases. The question

becomes whether Spannk has established its innocent owner

defense.

3 8 . As to the standard to be applied, the undersigned

agrees with and adopts the analysis provided by ALJ Barbara J.

Staros in Fubar v. City of Gainesville , Case No. 12 - 3649 (DOAH

Mar . 14, 2013):

37. 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 Beverages & 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.

3 9 . The undersigned would only add that the "restrictions

imposed by the Ordinance on the licensee" can be severe. Spannk

is only a first offender , but the O rdinance provides for

underage prohibition orders of progressively longer duration for

subsequent offenses, and the p ossibility of civil penalties of

$500 per offense.

40 . Because the City takes the position that the innocent

owner defense is unavailable under the Ordinance, it did not

mount a vigorous attack on SpannkÓs presentation of the steps it

takes to ensure comp liance with underage drinking laws. Without

speculating on the success such an attack might have had, the

undersigned does note that SpannkÓs procedures seem less

stringent and its defenses s lightly more porous than those

described by the alcoholic bevera ge establishment in Clark DP

Investments Inc., d/b/a The Bank v. City of Gainesville , Case

No. 12 - 3370 (DOAH Dec . 11, 2012) , a case previously heard by the

undersigned involving the Ordinance. For example, rather than

use specially purchased plastic wristbands that are rotated

every few weeks to ensure that patrons cannot duplicate them,

Spannk obtains its blue wristbands fro m DominoÓs pizza. This

raises the obvious question whether any and all DominoÓs

employees are able to sneak blue wristbands into Spannk and

purchase liquor whether or not they are 21. One Spannk patron

who worked at Beef OÓBradyÓs told police that she us ed a

wristband from her place of work to buy drinks in Spannk. There

were also the odd situations in which one patron claimed that

she showed the doorman her actual ID, which indicated she was

only 20 years old, and was given a blue wristband, and another

patron told police that she managed to buy beer in Spannk with a

green wristband she found in the bathroom. Despite SpannkÓs

policy of checking large purses, one underage female patron told

police that she managed to sneak a bottle of vodka into the bar,

and another told police that she had smuggled in the can of beer

she was holding.

4 1 . Nonetheless, t he preponderance of the stipulated

evidence established that Spannk has developed and followed a

comprehensive door policy in which it hires and trains it s

doormen to check the photo IDs of persons seeking entrance to

the bar and directs its personnel to roam the bar looking for

underage persons in possession of alcoholic beverages . The

doormen are trained to ask for more than one ID if they suspect

a patr on is under 21 , and they will inquire even further if they

remain in doubt as to the patronÓs age . Spannk employs older

professionals to work as doormen and specifically excludes

students from that position. SpannkÓs employees have attended

multiple resp onsible vendor programs offered by GPD.

4 2 . It is concluded that the security steps taken by

Spannk establish that it was reasonably diligent , if not

perfect, in checking the identification of persons seeking to

enter its premises, in checking to ensure that only persons of

legal age wore the color - coded wristbands allowing them to

purchase alcoholic beverages, and in inspecting its premises for

underage persons in possession of alcoholic beverages.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Underage Prohibition Order issued to

Spannk be vacated.

DONE AND ENT ERED this 2 7 th day of August , 2013 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 7 th day of August , 2013 .

ENDNOTE

1 / Section 562.11(1)(a) makes it 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 beverages on the licensed

premises ." Section 562.11(1)(c) provides:

(c) A licensee who violates paragraph (a)

shall have a complete defense to any civil

action the refor, except for any

administrative action by the division under

the Beverage Law, if, at the time the

alcoholic beverage was sold, given, served,

or permitted to be served, the person

falsely evidenced that he or she was of

legal age to purchase or consu me the

alcoholic beverage and the appearance of the

person was such that an ordinarily prudent

person would believe him or her to be of

legal age to purchase or consume the

alcoholic beverage and if the licensee

carefully checked one of the following forms

of identification with respect to the

person: a driver' s license, an

identification card issued under the

provisions of s ection 322.051 or, if the

person is physically handicapped as defined

in s ection 553.45(1), a comparable

identification card issued by another s tate

which indicates the person' s age, a

passport, or a United States Uniformed

Services identification card, and acted in

good faith and in reliance upon the

representation and appearance of the person

in the belief that he or she was of legal

a ge to purchase or consume the alcoholic

beverage. Nothing herein shall negate any

cause of action which arose prior to June 2,

1978.

Florida Administrative Code Rule 61A - 3.052 provides:

(1) A licensee who has been cited in an

administrative action for violations of

s ections 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, an d 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 driver' 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 the 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.

(2) It i s the responsibility of each

licensee/permittee to provide and train

their employees so that they will recognize

or be able to compare an identification card

presented by a customer with a facsimile of

the legitimate identification card. The

division shal l advise any licensee who

requests information about identification

source materials where they can be purchased

to assist in their training programs to

determine if an identification card is

genuine.

(3) No other type of identification will be

recognize d as mitigat ion if a licensee or a

licensee' s employee sells, gives, or serves

alcoholic beverages, cigarettes, or tobacco

products to an underage person.

Section 4 - 55(a) of the Ordinance provides that, in addition to

the underage prohibition order, the p rovisions of the Ordinance

may be enforced by civil citation, which could result in a

penalty of $500 per violation and/or 60 days imprisonment.

Section 4 - 55(b)(2) of the Ordinance makes the following

legislative finding in support of the penalty provisio n:

" Admission of persons under the age of 21 to an alcoholic

beverage establishment that has, by its actions, demonstrated an

inability to reasonably prevent underage consumption on its

premises presents a serious threat to the public health, safety,

or w elfare of the youth of our community and the citizenry at

large. "

COPIES FURNISHED :

Lee C. Libby, Esquire

City of Gainesville

Suite 425

200 East University Avenue

Gainesville, Florida 32601

Carey Wagner Meldon, Esquire

Law Offices of Jeffrey Meldon

703 North Main Street

Gainesville, Florida 32601

Nicolle M. Shalley, City Attorney

City of Gainesville

Suite 425

200 East University Avenue

Gainesville, Florida 32601

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 this Recommended Order should be filed with the agency that

will issue the Final Order in this case.