ALFONZO PANDOLFI, ET AL., APPELLANTS,
v.
DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION, ETC., APPELLEE
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The Fifth District Court of Appeal reversed a Department of Business & Professional Regulation decision suspending appellants' alcoholic beverage license for selling beer to an underage customer. The court found that suspension was an arbitrary and unjustified punishment given appellants' twelve-year violation-free record, the lack of evidence of willfulness or negligence, and the circumstances of the incident.
Suspension of the license was error. When a licensee has an exemplary compliance history, a single violation caused by a momentary lapse without evidence of willfulness or negligence, coupled with the government's undercover enforcement action, does not justify license suspension.
[1] An alcoholic beverage license suspension may be erroneous when the licensee has an exemplary violation-free record and the incident involved no evidence of knowledge, wil…
[2] The circumstances of an incident, including the actions of government agents, may be considered when determining the appropriateness of penalizing a licensee for an alcoh…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There was absolutely no evidence of knowledge or wilfulness or lack of due diligence or flagrant or chronic misconduct.”
Establishes the legal standard for evaluating whether suspension is appropriate—the government must show some culpable mental state or pattern of misconduct.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAgents of the department sent a twenty-year-old woman into appellants' store to purchase beer, which is illegal for anyone under twenty-one. Appellant…
The full statement of facts, procedural history, and disposition for this case are member content.
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DAUKSCH, Judge.
This is an appeal from an alcoholic beverage license suspension order. The evidence against appellants was that agents of the department procured a twenty year-old woman to go into appellant’s store and buy beer. The legal age for the purchase of the beer is twenty-one years. Appellant Alfonzo was talking to another person at the time about radiation treatments the two were undergoing for their respective cancers. The woman interceded in the conversation, bought the beer and left. Alfonzo failed to check her identification and thus was accused of the violation. At the hearing the department found that appellants had a twelve-year violation-free record which “indicates a conscientious and diligent effort to operate [their] establishment in conformity with the beverage laws.”
Considering the evidence and the department’s findings, it was error to have suspended appellants’ license. Surf Attractions, Inc. v. Dep’t of Business Regulation, Div. of Alcoholic Beverages & Tobacco, 480 So. 2d 1354 (Fla. 1st DCA 1985), rev. den., 492 So. 2d 1331 (Fla.1986); Pic N’ Save Cent. Florida, Inc. v. Dep’t of Business Regulation, Div. of Alcoholic Beverages & Tobacco, 601 So. 2d 245 (Fla. 1st DCA 1992). There was absolutely no evidence of knowledge or wilfulness or lack of due diligence or flagrant or chronic misconduct. See also Taylor v. State Beverage Dept., 194 So. 2d 321 (Fla. 2d DCA), cert. den., 201 So. 2d 464 (Fla.1967). When the government seeks to penalize, it should exercise wisdom, not arbitrariness, to the end of correction and prevention, rather than the exaetment of retribution. Given the exemplary history of appellants, the circumstances of the incident and the actions of the agents, it was clearly error to have suspended appellants’ license of appellants.
ORDER REVERSED.
W. SHARP, J., concurs.
COBB, J., dissents, with opinion.
COBB, Judge,
dissenting.
In this case it is undisputed that the licensee, Alfonzo Pandolfi, personally sold beer to someone under the age of 21 without asking her age or seeking any identification to verify it. That is sufficient to sustain the action, although seemingly harsh, taken by the Department. See Migliore v. Crown Liquors of Broward, Inc., 448 So. 2d 978 (Fla.1984).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Migliore v. Crown Liquors OF Broward, Inc., 448 So. 2d 978 (Fla. 1984)
- PIC N' Save Cent. Fla., Inc. v. Dep't of Bus. Reg., 601 So. 2d 245 (Fla. 1st DCA 1992)
- Taylor v. State Bev. Dep't of Fla. & Dir. of State Bev. Dep't of Fla., 194 So. 2d 321 (Fla. 2d DCA 1967)
- Seaside Props., Inc. v. State Rd. Dept., 201 So. 2d 464 (Fla. 1967)
- Thornton v. State, 201 So. 2d 464 (Fla. 1967)
- Surf Attractions, Inc. v. Dep't of Bus. Reg., 480 So. 2d 1354 (Fla. 1st DCA 1985)