STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-690

) CALDER RACE TRACK CONCESSIONS, ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held an administrative hearing on this cause on May 14, 1976.

APPEARANCES

For Petitioner: Charles L. Curtis, Esquire

Staff Attorney

Department of Business Regulations

For Respondent: Sy Chadroff, Esquire

120 Biscayne Boulevard North, Suite 2806 Miami, Florida 33132

The Division of Beverage seeks to assess a civil penalty against, or to suspend or revoke, beverage license no. 23-1940, 1-COP, issued to the Respondent, setting forth the following three reasons:

1. That on or about January 23, 1976, Respondent and/or its agent permitted to be sold an alcoholic beverage, to wit; one can of Schlitz Beer, at a place commonly known as the stable area 45A, a premises not covered by the beverage license as described in the application therefor, contrary to Florida Statutes 562.06.

   
   

2. That on or about January 30, 1976, Respondent and/or its agents, permitted to be sold an alcoholic beverage, to wit; one can of Falstaff Beer, at a place commonly known as stable Number 29, a premises not covered by its beverage license as describe in the application therefor, contrary to Florida Statutes 562.06.

   
   

3. That on or about January 30, 1976, Respondent and/or its agents, transported an alcoholic beverage, to wit; 41 cans of assorted brands of beer, in a vehicle without first acquiring a vehicle permit authorizing it as a licensee to transport such beverages which it was permitted to sell under the above referenced license, contrary to Administrative Rule 7A-3.27.

FINDINGS OF FACT

1. There is no dispute that the licensee is holder of Beverage License Permit no. 23-1940, 1-COP. On January 23, 1976, 1/ Ed Wayne Pfitzenmaier, a beverage officer for approximately 6 years visited the Calder Race Track stable area and on the dates January 23 and January 30, witnessed the sale of food from a vending truck. He approached the truck where the sales of food and other items were taking place and approached one Joann McFadden, who according to Pfitzenmaier is an employee of Calder Race Track Concessions, Inc. He viewed the windshield of the vehicle and noted that it did not have a permit authorizing the transportation of alcoholic beverages. He phoned the Department of Motor Vehicles dispatcher to determine the registered owner of the vehicle and it was later revealed by the Department that the vehicle was registered to Calder Race Track Concessions, Inc. Pfitzenmaier and Officer Bokberg witnessed the sale of a sealed can of Schlitz and Falstaff Beer on the dates January 23 and 30. On the second occasion, January 30, Pfitzenmaier asked to speak to the agent in charge and he was referred to Mr. Cleissnor who is the manager of the concession area. He also spoke to a Mr. Fernandez, who as it later turned out, was and is one of the licensee's corporate officers. Pfitzenmaier was given a transfer sheet which reflected the transfer of goods i.e., food and other beverages from the track kitchen to the vendor's truck. It is clear that the licensee has not made application from the Division of Beverage to obtain a permit to transport alcoholic beverages in the vehicle witnessed by officers Pfitzenmaier and Bokberg. The Licensee's agent testified that the sale of food and other beverages including beer was done exclusively for the use and consumption of its employees and that there was no overt act on the licensee's part to violate any of the alcoholic beverage laws. It was also noted that the application for beverage license was accompanied by a sketch of the entire race track stable area and there was no stipulation in the grant of the license indicating that the sale of alcoholic beverages were to be restricted to the concession area. In fact, the application itself reveals that the location of the business designates the street address 21001 Northwest 27th Avenue/stable area, Opa Locka, Dade, Florida. Based on this fact and the concluding fact that the sale took place in the stable area, I therefore find and conclude that the sale of the alcoholic beverages, to wit, two cans of beer, was not in violation of Florida Statutes 562.06, inasmuch as the stable area was the area designated in the license application itself. I further find that the licensee, by permitting to be transported alcoholic beverages in a vehicle not authorized to transport alcoholic beverages by a permit violated Administrative Rule 7A-3.27.

   
   

   CONCLUSIONS OF LAW

   
   

2. Notice, as required by law, has been given of this proceeding.

   
   

3. The Respondent did not violate Florida Statutes 562.06, on January 23 and 30, by permitting its agents to sell beer in the stable area 45A and stable Number 29.

   
   

4. By transporting alcoholic beverages in a vehicle without first acquiring a vehicle permit authorizing it to transport such beverages, the Respondent violated Administrative Rule 7A-3.27.

RECOMMENDED ORDER

Having considered all testimony, pleadings and evidence presented in this matter, it is hereby recommended that the Respondent be assessed a civil penalty

of $250.00 for violating Administrative Rule 7A-3.27. It is further recommended that the notice to show cause be dismissed as to the remaining allegations.

DONE and ENTERED this 29th day of July, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTE

1/ All dates unless otherwise noted are in 1976.

COPIES FURNISHED:

Charles C. Curtis, Esquire

Department of Business Sy Chadroff, Esquire Regulation 120 Biscayne Boulevard, North

Division of Beverage Suite 2806

The Johns Building Miami, Florida 33132 Tallahassee, Florida 32304

Docket for Case No: 76-000690

Orders for Case No: 76-000690