STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re: The Revocation or )

Suspension of the Beverage ) license of ANNIE L. LEE t/a )

Blounts Place, 142 N. W. 11th ) CASE NO. 76-118 Street, Miami, Florida, License )

No. 23-1577, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on February 18, 1976 at Miami, Florida.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Staff Attorney Division of Beverage The Johns Building Tallahassee, Florida

For Respondent: Willie Calhoun

142 North West 11th Street Miami, Florida

By Notice to Show Cause delivered to Respondent on December 11, 1974, the Division of Beverage seeks to assess a civil penalty against or to suspend or revoke beverage license number 23-1577 issued to Annie L. Lee, trading as Blount's Place. The allegation for the proposed action is that Respondent failed to properly pay for said beverage license on or before October 1, 1974 as required by s. 561.26 Florida Statutes. One witness testified on behalf of the Division of Beverage and a copy of check dated September 17, 1974 was admitted into evidence. One witness testified on behalf of Respondent, and copies of licenses for the years 1973-74, 1974-75, and 1975-76 were admitted into evidence.

The charges involved in Notice to Show Cause delivered to Respondent on December 28, 1973 were settled by stipulation between the parties at the hearing and no evidence was presented on these charges.

FINDINGS OF FACT

1. By check dated September 17, 1974 Willie Calhoun attempted to pay the 1974-75 beverage license fee for Blount's Place and the check was returned to the Division stamped "Closed". The witness for the Division testified that the check was returned marked "NSF".

   
   

2. Willie Calhoun is the son of Annie Lee and with his mother, owns the "6129 Corporation" known as King the Tailor. This is their primary business and the accounts from Blount's Place are co-mingled with those funds. This business

   is located in a section of Miami which has been the locale of numerous racial incidents and the proprietors were unable to obtain fire insurance. A fire occurred at this store in 1973 which burned the assets and records. The IRS audited the corporation and levied against the owners. When the check for the 1974-75 beverage license was written there was sufficient funds in Willie Calhoun's account to honor the check; however, before it was presented for payment the IRS had garnished the account.

   
   

3. During the period between 1972 and December 2, 1975 Willie Calhoun and his mother paid the IRS some $42,000 in taxes and penalties. They now have returned to a solvent status and their beverage license payments are current.

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 561.27(2) Florida Statutes provides:

   
   

   "A license may be renewed subsequent to September 30 of each year only upon making to the division a delinquent application for approval, accompanied by an affidavit stating that no sale of alcoholic beverages have been made subsequent to September 30, and upon payment of a penalty of $5.00 for each month or fraction of a month of delinquency, or upon payment of a penalty of five percent of the license fee whichever amount is the greater."

   
   

5. Section 561.29(4) Florida Statutes provides:

   
   

   "The division may impose a civil penalty against a licensee for any violation mentioned in the beverage law or any rule issued pursuant thereto, not to exceed $1,000 for violations arising

   out of a single transaction. If the licensee fails to pay the civil penalty his license shall be suspended for such period of time as the division may specify. The funds so collected shall

   be deposited in the state general revenue fund."

   
   

6. Since licensee has been issued the 1974-75 and subsequent licenses it must be presumed that the provisions of Section 561.27(2) Florida Statutes above quoted have been complied with.

   
   

7. Failure to renew a license can hardly be a violation of the beverage law. To so hold would be tantamount to saying a licensee had a duty to remain in business. Selling alcoholic beverages without a license does constitute a violation of the beverage laws. If a licensee sells alcoholic beverages subsequent to the expiration of his license and prior to the renewal thereof he would be in violation of the beverage laws and subject to the penalty provided in Section 561.29(4) Florida Statutes above quoted. Here no evidence was offered that licensee sold alcoholic beverages subsequent to September 30, 1974 and prior to the renewal of his 1974-75 license.

8. It is to be noted that licensee herein is charged with failure to properly pay for the beverage license before October 1, 1974. While the evidence supports this allegation the statute does not make this delict, if one it be, an offense against the beverage laws punishable as provided by Section 561.29(4) Florida Statutes.

   
   

9. From the foregoing it is concluded that licensee failed to properly pay for the 1974-75 license as alleged; however, this, standing alone, does not constitute a violation of the beverage laws. It is therefore,

RECOMMENDED that the charges against Annie L. Lee, trading as Blount's Place for failing to properly pay the 1974-75 beverage license, be dismissed.

DONE and ENTERED this 30th day of March, 1976 in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Charles Tunnicliff, Esquire Willie Calhoun

Docket for Case No: 76-000118

Orders for Case No: 76-000118