STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-685

)

LEARTIS FRAZIER )

t/a FRAIZER'S GROCERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, Hearing Officer, with the Division of Administrative Hearings at 3:00 P.M., July 28, 1976, at 1934 Beachway Avenue, Jacksonville Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Division of Beverage The Johns Building 725 Bronough Street

Tallahassee, Florida 32304 For Respondent: No Appearance

The Respondent, Leartis Frazier, did not appear, although Notice of Hearing was served by certified mail, return receipt requested. This notice of hearing was mailed to the business address of Frazier's Grocery, which is 2273 Commonwealth Avenue, Jacksonville, Florida. The exhibit, which is the Notice of Hearing, is Petitioner's Exhibit 1, admitted into evidence.

ISSUE

Whether or not on or about the 19th day of August, 1975, the Respondent, Leartis Frazier, his agent, servant or employee, one Robert Henry Williams did unlawfully sell an alcoholic beverage, to wit: one 16 ounce can of Budweiser beer, in a manner not permitted by the Respondent's beverage license, to wit: while the license was suspended, contrary to Section 562.12, Florida Statutes.

FINDINGS OF FACT

1. On August 19, 1975, the beverage license which the Respondent, Leartis Frazier, held with the State of Florida, Division of Beverage was on active suspension. The notice of suspension had been served on Leartis Frazier at Frazier's Grocery, 2273 Commonwealth Avenue, Jacksonville, Florida. Furthermore, a sign had been posted at that address which indicated that the license of Leartis Frazier t/a Frazier's Grocery was suspended.

2. On August 19, 1975, while the license was under suspension an officer of the Jacksonville Sheriff's Office observed one David Brooks enter Frazier's Grocery, without any objects in his hands. This observation occurred after the officer had encountered Brooks moments before in the conduct of an investigation and Brooks had not been carrying any objects in his hands at that moment either. Several minutes after entering the Frazier's, the same David Brooks exited Frazier's Grocery with a paper bag in his hands which contained one 16 ounce can of Budweiser beer. The Officer then entered the licensed premises and went to the beer counter and opened it up and discovered one can of beer missing from a six-pack container of Budweiser beer. At the time the officer made this investigation the sign which had been placed in the window of Frazier's Grocery to indicate the license suspension was being displayed. A Mr. Williams was sitting behind the counter inside the licensed premises as an employee, agent or servant of the Respondent at the time the officer of the Jacksonville Sheriff's Office discovered the missing can of beer.

   
   

3. Mr. Brooks, when questioned about where he had bought the can of beer, after discussion, indicated that he had bought it at Frazier's Grocery. By Mr. Brooks' statement and the officer's observation, it is established that Mr. Williams sold the Budweiser beer to Brooks.

   
   

4. The Mr. Williams was identified in the hearing, as being Robert Henry Williams.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction in this cause.

   
   

6. It is concluded as a matter of law, that on or about the 19th day of August, 1975, the agent, servant or employee of the Respondent, to wit, Robert Henry Williams, did unlawfully sell an alcoholic beverage, to wit: One 16 ounce can of Budweiser beer, in a manner not permitted by the Respondent's beverage license, to wit: did make such sale while the license was under suspension, contrary to Section 562.12, Florida Statutes, thereby subjecting the Respondent to the penalties associated with such a violation.

RECOMMENDATION

It is recommended that the license of the Respondent, Leartis Frazier, be suspended for a period of one year for the violation as established in the hearing on this Notice to Show Cause.

DONE and ENTERED this 14th day of September, 1976, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Leartis Frazier

2273 Commonwealth Avenue

Jacksonville, Florida 32209

Charles F. Tunnicliff, Esquire Division of Beverage

The Johns Building 725 Bronough Street

Tallahassee, Florida 32304

Docket for Case No: 76-000685

Orders for Case No: 76-000685