STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1810

) MARIANNE GOODMAN and FRANK BEYO ) t/a BEYO'S RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, Hearing Officer, with the Division of Administrative Hearings at 614 E. Clinton Street, Marianna, Florida on October 28, 1976.

APPEARANCES

For Petitioner: Lawrence D. Winson, Esquire

Staff Attorney Division of Beverage The Johns Building

Tallahassee, Florida 32304

For Respondent: Robert B. Staats, Esquire

317 Magnolia Avenue

Panama City, Florida 32401 ISSUE

1. Whether or not on or about January 16, 1976, Marianne Goodman and Frank Beyo, a licensed vendor, did have in their possession, permit or allow someone else, to wit: Frank Beyo, to have in their possession on their licensed premises alcoholic beverages, to wit: several partially filled and sealed bottles of assorted brands of liquor and wine, not authorized by law to be sold under their license, contrary to Section 562.02, Florida Statutes.

   
   

2. Whether or not on or about January 16, 1976, Marianne Goodman and Frank Beyo, did have on their licensed premises gambling, paraphernalia, to wit; football parlay sheets and seven (7) football pools along with a baseball pool, not authorized to be on their licensed premises, contrary to Section 849.09, F.S.

FINDINGS OF FACT

1. Respondents, Marianne Goodman and Frank Beyo, are now licensed and were licensed on January 16, 1976 by the State of Florida, Division of Beverage,

   under license No. 13-97, Series 1-COP. This license allows for the consumption of beer on the premises.

   
   

2. On January 16, 1976, several officers with the Division of Beverage arrived at the licensed premises to make a periodic inspection of that premises. They proceeded to make a search in the connection with their inspection of the bar area and the living quarters which is part of the same building. This premises is identified in Petitioner's Exhibit 3 admitted into evidence in its page 3. The premises is also identified in the course of Respondents' Exhibit 1 admitted into evidence. The diagram of the licensed premises shown in Petitioner's Exhibit 3 was as signed by the Respondent, Frank Beyo, and acknowledged by both Respondents, Frank Beyo and Marianne Goodman, on page 4 of the Petitioner's Exhibit 3. This diagram comports with the current floor plan in the premises. In searching, the officers found in the kitchen area certain bottles of wine which is delineated by number 4 on the Respondents' Exhibit 1. In addition, they found certain other bottles of liquor in the living room area and one bedroom area described as the front bedroom, and this location is delineated by number 4 on Respondents' Exhibit 1. There was no testimony offered by the officer or other witnesses that they had observed consumption of these alcoholic beverages, which were not beer, by any persons other than the vendor, his family, or guests. The Respondent, Frank Beyo, indicated that the various bottles of liquor which were full or partially full were for cooking purposes; private consumption by his wife, now deceased; consumption by his son or his personal consumption.

   
   

3. Within a cabinet area in the kitchen, which location is identified by number 5 on Respondents' Exhibit 1, were found certain football parlay sheets. These parlay sheets had not been used, but were testified to by the officers as being paraphernalia used to bet on the outcome of football games. This testimony is unrefuted, although the witness indicated that the purpose he held these parlay sheets for was to use as scratch paper. Additionally, the officers found a cardboard backed set of sheets which were football pools and a baseball pool. These pools were designed for the placing of a bet with the proceeds going to the winner. This particular document was found in the bar proper and is identified as number 6 on Respondents' Exhibit 1. The Respondent, Frank Beyo, admitted participating in this betting pool as shown in Exhibit 6 but indicated that the "lions share" of the proceeds went for purposes of buying equipment for youth athletic teams.

   
   

4. Petitioner's Exhibit 4, the items of liquor; Exhibit 5, the parlay sheets; and Exhibit 6, the football pools and baseball pool were admitted into evidence.

   
   

   CONCLUSIONS OF LAW

   
   

5. It is concluded that the Division of Administrative Hearings has jurisdiction in this cause.

   
   

6. It is concluded as a matter of law that the Petitioner's law enforcement officers were authorized to search the entire licensed premises to include the living quarters and that any items taken from the living quarters were not illegally seized in violation of the law.

   
   

7. The Petitioner has failed to show that the Respondents violated the provisions of Section 562.02, F.S., in that the only testimony indicated that the liquor found was for personal consumption of the vendor, his family or guests and therefore is excepted from consideration under the law.

8. It is concluded as a matter of law that based upon the facts as shown, the Respondents, in the person of Frank Beyo, by having parlay sheets, football pools and a baseball pool are in violation of Setion 849.09, F.S., and are thereby subjected to the penalties found in Section 561.29, F.S.

RECOMMENDATION

It is RECOMMENDED, based on the violation as established in this cause, that the Respondents be fined in the amount of $400.

DONE and ENTERED this 22nd day of November, 1976, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Lawrence D. Winson, Esquire Robert B. Staats, Esquire Division of Beverage 317 Magnolia Avenue

The Johns Building Panama City, Florida 32401 Tallahassee, Florida 32304

Docket for Case No: 76-001810

Orders for Case No: 76-001810