STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1923

) LEROY FRANCIS t/a PALM BEER ) GARDEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on November 18, 1976, at the District Office of the State of Florida, Division of Beverage, at 725 Bronough Street, Tallahassee, Florida.

APPEARANCES:

For Petitioner: Larry D. Winson, Esquire

Staff Attorney Division of Beverage 725 Bronough Street

Tallahassee, Florida 32304

For Respondent: Leroy Francis

22 South Adams Street Quincy, Florida

ISSUE

1. Whether or not on or about May 25, 1976, Leroy Francis, a licensed vendor, or his agent or employee, to wit: Lela Mae Caldwell, did have in her possession, on his licensed premises, alcoholic beverage to, wit: a one half pint bottle of Seagram's Extra Dry Gin, not authorized by law to be sold under his license, contrary to s. 562.02, F.S.

   
   

2. Whether or not on or about June 2, 1976, Leroy Francis, licensed under the beverage laws, or his agent or employee, to wit: Lela Mae Caldwell, did sell a one half pint of Seagram's 7 Crown Whiskey, on his licensed premises to a Guy William, said sale not permitted by his license, contrary to s. 562.12, F.S.

   
   

3. Whether or not on or about June 7, 1976, Leroy Francis, licensed under the beverage laws, or his agent or employee, to wit: Lela Mae Caldwell, did have in her possession, certain alcoholic beverages, to wit: 185 assorted bottles of tax paid whiskey and 13 assorted bottles of wine, with the intent to sell said alcoholic beverages without a license, contrary to s. 562.12, F.S.

   FINDINGS OF FACT

   
   

4. From May 25, 1976, up to and including the date of the hearing, Leroy Francis, t/a Palm Beer Garden was the holder of license no 30-71, series 1-COP with the State of Florida, Division of Beverage. The license was for a premises located at 22 South Adams Street, Quincy, Florida.

   
   

5. On May 25, 1976, Officer Garry Sands and Officer John Harris of the State of Florida, Division of Beverage went to the aforementioned licensed premises. Officer Sands went to the rear and Officer Harris went to the front. Officer Sands observed a black female leave the licensed premises from the back and go to a white 1969 Chevrolet car, open the trunk and remove a bottle of whiskey, place it in her shirt and return to the premises. He then entered the bar together with Officer Harris and retrieved a one half pint bottle of Seagram's Extra Dry Gin from the same female, while in the licensed premises. This bottle is Petitioner's Exhibit number 4, admitted into evidence. The woman was identified as Lela Mae Caldwell who on another occasion had signed an inspection paper as being an employee in the licensed premises. The series 1- COP license does not allow sale of said alcoholic beverage on the premises.

   
   

6. On June 20, 1976, Officer Sands returned to the premises with one Guy William. Guy William is an undercover informant for the Petitioner. This trip was made around 8:30 P.M. Officer Sands checked to see that Guy William did not have any liquor or money on his person and then gave Guy William $5.00 to attempt to purchase liquor from within the licensed premises. Guy William left Officer Sands and was observed going directly through the rear door of the licensed premises. While in the licensed premises Guy William asked Lela Mae Caldwell for a half pint bottle of alcoholic beverage and made such a purchase from Lela Mae Caldwell. Agent Sands, while at the rear of the building, observed a person go to the same white 1969 Chevrolet and remove a bottle of alcoholic beverage and return to the licensed premises Guy William saw a similar person leave the building and return with a bottle of alcoholic beverage. The alcoholic beverage which was purchased was admitted as Petitioner's Exhibit number 5. This alcoholic beverage was not allowed for sale under the series 1- COP license for the premises.

   
   

7. Based upon the information supplied by the informant, Guy William, a search warrant was secured to allow a search of the 1969 white Chevrolet. On June 7, 1976, around 12:00 A.M. officers of the State of Florida, Division of Beverage returned to the licensed premises and served a search warrant on Lela Mae Caldwell, who was working at that time. Leroy Francis, the licensee was also seen in the area of the bar at that time. The officers went to the white 1969 Chevrolet and Leroy Francis returned to the car and gave them the key which unlocked the trunk, in which was found an assortment of alcoholic beverages to include 185 assorted bottles of tax paid whiskey and 13 assorted bottles of tax paid wine. These bottles constitute Exhibit number 6, admitted into evidence. After being advised of his rights, Leroy Francis, the licensee, admitted that he had keys to the car as well as Lela Mae Caldwell, his common law wife.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. It is concluded as a matter of law that on or about May 25, 1976, Lela Mae Caldwell, the agent or employee of Leroy Francis, did have in her possession, on his licensed premises, alcoholic beverages, to wit: A one half pint bottle of Seagram's Extra Dry Gin, not authorized by law to be sold under

   his license, contrary to s. 562.02, F.S., thereby subjecting the licensee to the penalties associated with s. 561.29, F.S.

   
   

10. It is concluded as a matter of law that on or about June 2, 1976, that Lela Mae Caldwell, the agent or employee of Leroy Francis, did sell a one half pint bottle of Seagram's 7 Crown Whiskey, on his licensed premises to a Guy William, said sale not permitted by the licensee's license, contrary to s. 562.12, F.S., thereby subjecting the licensee to the penalties associated with s. 561.29, F.S.

    
    

11. It is concluded as a matter of law that on or about June 7, 1976, that Lela Mae Caldwell did have in her possession, as agent or employee for Leroy Francis, certain alcoholic beverages, to wit: 185 assorted bottles of tax paid whiskey and 13 assorted bottles of wine, with the intent to sell said alcoholic beverages without proper license, contrary to s. 562.12, F.S., thereby subjecting the licensee to the penalties set forth in s. 561.29, F.S.

RECOMMENDATION

It is recommended, based upon the facts as shown in the Rules to Show Cause, that the license of Leroy Francis to sell alcoholic beverages be suspended for a period of 60 days.

DONE and ENTERED this 13th day of December, 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:

Larry D. Winson, Esquire Staff Attorney

Division of Beverage 725 Bronough Street

Tallahassee, Florida 32304

Leroy Francis

22 South Adams Street Quincy, Florida

Docket for Case No: 76-001923

Orders for Case No: 76-001923