98-003539 Division Of Alcoholic Beverages And Tobacco vs. N. W. S. Food And Gas, D/B/A Time Saver No. 9 Status: Closed Recommended Order on Friday, January 8, 1999.

Summary: Sale of alcoholic beverage to minor was proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 98-3539

)

N.W.S. FOOD & GAS, )

d/b/a TIME SAVER )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on

November 9, 1998, in Tallahassee, Florida, before Ella Jane P.

Davis, a duly assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Barry Kling

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: J. Joseph Hughes, Esquire

1017-A Thomasville Road

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Did Respondent sell an alcoholic beverage to a person under

the age of 21, in violation of Section 562.11(1)(a), Florida

Statutes, as alleged in the Administrative Action issued June 1,

1998?

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Division of Alcoholic Beverages and Tobacco served N.W.S. Food &

Gas d/b/a Time Saver #9 with an administrative complaint alleging

their agent, employee, or servant, Kamel Beshara Goor, did sell,

serve, or give an alcoholic beverage to a person under the age of

21, contrary to Section 562.11(1)(a), Florida Statutes.

Respondent timely requested a formal hearing, and Petitioner

referred this matter to the Division of Administrative Hearings

on August 3, 1998.

At formal hearing, convened on November 9, 1998, Petitioner

presented the oral testimony of Agent William K. Townsend, of the

Division; Deputy Vernon Willis, of the Leon County Sheriff's

Office; and Eric Von Strosnider, a high school student working

undercover for the Division. Petitioner had a photograph of

Strosnider, taken on the date of the alleged illegal purchase,

May 29, 1998, admitted in evidence.

Respondent presented the oral testimony of Kamel Beshara

Goor.

No transcript was provided. All timely filed Proposed

Findings of Fact and Conclusions of Law have been considered in

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant and material to this proceeding,

Respondent held license number 47-02960, series 2-APS,

authorizing the sale of alcoholic beverages on the premises of

Timesaver #9, located at 2415 Jackson Bluff Road, Tallahassee,

Leon County, Florida.

2. Kamel Beshara Goor is the sole corporate officer and

owner of Timesaver #9.

3. On the evening of May 29, 1998, Eric Von Strosnider

entered the licensed premises in an undercover capacity on behalf

of Petitioner Agency. Mr. Strosnider was born February 18, 1981,

and carried a valid driver's license showing his correct birth

date.

4. Mr. Strosnider removed a single can of "Bud Lite" beer

from the beer section of the store and presented it to Mr. Goor

for purchase. Mr. Strosnider remembered clearly he picked up a

"Bud Lite" because that was the type of beer he always selected

during an attempted undercover buy. He paid for the "Bud Lite"

and left the store. He immediately met with his Agency contact.

5. Mr. Strosnider's appearance in court and as evidenced by

his photograph taken on May 29, 1998, was such that an ordinarily

prudent person would wish to determine that his age was, in fact,

over 21, before selling him an alcoholic beverage.

6. Mr. Strosnider testified that Mr. Goor might have asked

him if he had an "ID," but he was certain that Mr. Goor did not

ask to see his "ID." Mr. Strosnider had his driver's license

with his correct birth date with him, but since he was not asked

to present it, he did not provide any identification to Mr. Goor.

7. Leon County Sheriff's Deputy Vernon Willis, who was

dressed in plain clothes and present in the store, witnessed Mr.

Strosnider's purchase of a can labeled "beer" but did not hear

any request for identification.

8. Mr. Goor did not remember asking for identification. He

did not recognize Mr. Strosnider in court and denied any sale to

Mr. Strosnider. He clearly testified that he would not sell

alcohol to someone who appeared under thirty years of age if he

or she said they had identification without checking that

identification. However, with some vacillation, he also stated

that his standard operating procedure is to ask for

identification, and if the customer reaches for identification,

he does not need to read it, but if a customer makes any excuse

about not having identification with him or her, Mr. Goor refuses

to sell. He finally said that if he sees the identification and

the customer is under 21 years of age, he does not sell alcoholic

beverages to him.

9. Upon the totality of the evidence and the respective

candor and demeanor of the witnesses, I find that the sale of

beer to a minor under the age of 21 occurred without any

misleading by the minor.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

11. Section 561.29, Florida Statutes, provides that the

Division is given full power and authority to revoke or suspend a

beverage license under the Beverage Law when it is determined

upon sufficient cause appearing that the licensee or his or her

agents, officers, servants, or employees on the licensed premises

violated any of the laws of this State or of the United States.

12. Section 562.11, Florida Statutes (1997), provides:

(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 beverages on the

licensed premises. Anyone convicted of violation of

the provisions hereof is guilty of a misdemeanor of the

second degree, punishable as provided in s. 775.082 or

s. 775.083.

13. There is no evidence herein that Mr. Goor has been

criminally prosecuted or convicted of a misdemeanor under Section

562.11(1)(a), Florida Statutes.

14. Section 562.47(2), Florida Statutes, provides:

(2) Proof that the beverage in question was

contained in a container labeled "beer," "ale," "malt

liquor," "malt beverage," "wine," or "distilled

spirits" or with other similar name; and which bears

the manufacturer's insignia, name, or trademark is

prima facie evidence that such beverage is an alcoholic

beverage as defined in s. 561.01.

15. Rule 61A-3.052, Florida Administrative Code, provides

that it is a defense to a violation of Section 562.11(1)(a),

Florida Statutes, "if the underage person falsely evidenced that

he was of legal age to purchase the alcoholic beverage,

cigarettes, or tobacco product or consume the alcoholic beverage

product and the appearance of the person was such that an

ordinarily prudent person would believe that 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 . . ." Florida Administrative

Rule 61A-3.052 (Emphasis Supplied).

16. Rule 61A-3.052, Florida Administrative Code, requires

that a person violating these laws satisfy all of the

requirements of the provided defenses. Even by his own

testimony, Mr. Goor did not perform all of the acts required.

17. Clear and convincing evidence was presented that

without the proper precautions, Mr. Goor sold a "Bud- Lite" beer

to Mr. Strosnider, who was under the age of twenty-one at the

time of the sale. See Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

18. Rule 61A-2.022, Florida Administrative Code, contains

the Agency's penalty guidelines. The penalty guideline for a

violation of Section 562.11, Florida Statutes, sale of alcoholic

beverages to persons under the age of 21, is a seven-day license

suspension and a $1,000 civil penalty.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the Department of Business and Professional

Regulation, Division of Business and Professional Regulation,

Division of Alcoholic Beverages and Tobacco enter a Final Order

suspending Respondent's alcoholic beverage license number 47-

02960, series 2-APS, for seven days, and imposing a civil penalty

in the amount of $1,000.

DONE AND ENTERED this 8th day of January, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed wi th the Clerk of the

Division of Administrative Hearings

this 8th day of January, 1999.

COPIES FURNISHED:

Barry Kling, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

J. Joseph Hughes, Esquire

1017-A Thomasville Road

Tallahassee, Florida 32303

Richard Boyd, Director

Division of Alcoholic

Beverages and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0700

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0700

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.