362 So. 2d 959 | Fla. Dist. Ct. App. | 1978
Lead Opinion
By petition for review pursuant to Chapter 120, Florida Statutes, the Administrative Procedure Act, and F.S. 561.29(7), G & B of Jacksonville, Inc. d/b/a The Climax, hereinafter referred to as petitioner, seeks review of an order of the director of the State of Florida Department of Business Regulation, Division of Beverage, hereinafter referred to as respondent, by which order a civil penalty in the amount of $500.00 was assessed against petitioner.
The respondent charged petitioner with the following offense:
“(1) On or about the 5th day of June, 1975, investigation revealed that on your licensed premises, you, your agent, servant or employee did unlawfully employ a person under the age of 18 years, one Teri Armstrong Beard, age 16 years, in violation of 562.13, Florida State Statutes.”
The hearing officer concluded that petitioner violated F.S. 562.13 and recommended that a civil penalty in the amount of $500.00 be assessed against the petitioner. The respondent entered its order adopting the recommended order and assessing a civil penalty against the petitioner in the recommended amount.
We agree with petitioner that the evidence is insufficient to support the assessment of the civil penalty. This case is distinguishable from the case of R & R Lounge, Inc. v. Wynne, 286 So.2d 13 (Fla. 1st DCA 1973) cited by the hearing officer in his conclusions of law. Sub judice there were no warning flags sufficient to create a serious question as to Ms. Beard’s correct age. Here, petitioner did all that was reasonable under the circumstances. Ms. Beard said she was 19 years of age. The licensee’s unrebutted testimony reveals that he called Ms. Beard’s mother and she confirmed that Ms. Beard was 19 years of age. Further, the employment application reveals Ms. Beard to have been 19 and divorced. Divorce implies marriage and marriage implies adulthood. In short, we cannot say that petitioner failed to exercise the degree of diligence imposed upon it to determine the correct age of Ms. Beard before entering into an employment contract with her. Having reversed the respondent’s order on the grounds that there is insufficient evidence to support the charge, we deem it unnecessary to discuss the other points raised by petitioner.
Accordingly, the respondent’s order is vacated.
Dissenting Opinion
dissenting.
There is competent substantial evidence in the record that Ms. Beard, at the time of her employment by petitioner, had a driver’s license but was not required or requested by petitioner to produce it or other identification to verify her stated age. I would affirm.