STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 77-734

) JAMES P. POPE t/a TAVERN ON THE ) MALL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at 2000 West Government Street, Pensacola, Florida, at 11:00 A.M., Central Standard Time on May 26, 1977.

APPEARANCES

For Petitioner: Charles T. Collett, Esquire

Division of Beverage The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: James P. Pope

4220 West Fairfield Drive Pensacola, Florida

ISSUES

1. Whether or not on or about February 2, 1977, James P. Pope, a licensee under the beverage laws, failed to file application for transfer of said license after a bona fide sale of said business and license was made by James P. Pope to Gary W. Simmons and Anthony W. Speakman contrary to 561.32, F. S.

   
   

2. Whether or not on or about February 2, 1977, James P. Pope, licensed under the beverage laws, did allow persons, to wit; Gary W. Simmons and Anthony

   W. Speakman to assume a direct interest and engage in selling alcoholic beverages prior to filing a sworn application and being approved, contrary to 561.17, F. S.

   
   

3. Whether or not on or about February 2, 1977, James P. Pope, licensed under the beverage laws, failed to manage and maintain control of all business conducted on his licensed premises, by allowing Gary W. Simmons and Anthony W. Speakman to take complete control of his premises contrary to Rule 7A-3.17, Florida Administrative Code.

FINDINGS OF FACT

1. The Respondent, James P. Pope, is the holder of license no. 27-526, series 2-COP, held with the Petitioner, State of Florida, Division of Beverage. James P. Pope has held this license from October 1, 1976, up to and including the date of the formal hearing. This license allows the licensee to sell beer and wine for consumption on the licensed premises. The licensed premises is located at 4220 West Fairfield Drive, Pensacola, Florida. The licensee is trading as Tavern on the Mall.

   
   

2. On February 2, 1977, agent Daniel J. Cobb, State of Florida, Division of Beverage, went to the Respondent's licensed premises. When he arrived at the licensed premises, he spoke with one Gary W. Simmons. Simmons indicated that he was the new owner of the licensed premises although the transfer of ownership had not been completed. Simmons further indicated that he was in charge of the licensed premises and running the licensed premises. Simmons indicated that he and Anthony W. Speakman had a lease agreement with the licensee, James P. Pope. This lease agreement as shown by Petitioner's Exhibit no. 3, admitted into evidence and made a part of the record, establishes that James P. Pope as lessor entered into a lease agreement with Gary Simmons and Anthony W. Speakman as lessees, in which the lessees would manage the Tavern on the Mall, with the option to buy the business and equipment as soon as the beverage department approved the application for the transfer of the beer and wine license. The lease also indicated that the lessees would receive all the money from the business for managing the business, with the exception of $150 a week which was to be paid to James P. Pope and would go toward the down payment for the licensed premises which would come about at the time of the license transfer. The lease agreement additionally said that the purpose of the Tavern was for dispensing beer and wine.

   
   

3. Agent Cobb also discovered the existence of a bank account which Simmons and Speakman had established to operate the business on the licensed premises. In addition, agent Cobb found that a local utility company, Gulf Power, was providing electric power to the licensed premises in the name of Simmons and Speakman.

   
   

4. In an interview on February 3, 1977, between Cobb and Pope, the Petitioner's Exhibit no. 3 was presented to agent Cobb to establish the arrangement between Pope, Simmons and Speakman. (This lease was produced voluntarily and the Respondent has cooperated with the Division of Beverage in investigating this matter.)

   
   

5. James P. Pope was not running or managing the business at the licensed premises on February 2, 1977, nor has he been managing the business from February 2, up to and including the date of the hearing. Pope only comes to the licensed premises two or three times a week just for purposes of checking up, but not for purposes of management.

   
   

6. The facts in this cause do not establish that on or about February 2, 1977, James P. Pope, a licensee under the beverage laws, faced to file an application for a transfer of his license after a bona fide sale of the business located 4220 West Fairfield Drive, Pensacola, Florida, under s. 561.32, F. S. The agreement between James P. Pope and Gary W. Simmons and Anthony W. Speakman is a lease agreement with an option to buy and this is not a bona fide sale of the premises. The facts in this cause do establish that James P. Pope did allow Gary W. Simmons and Anthony W. Speakman to assume a direct interest in the licensed premises and engage in selling alcoholic beverage prior to filing a

   sworn application and being approved by the Division of Beverage, contrary to s. 561.17, F. S. This is established by the conditions existant on February 2, 1977, in the licensed premises. Finally, the facts as established, show that on February 2, 1977, James P. Pope, licensed under the beverage laws, was not managing and controling all the business conducted on the licensed premises under the beverage law, nor was his authorized employee or employees managing or controlling such business conducted on the licensed premises under the beverage law. Therefore James P. Pope was operating contrary to Rule 7A-3.17, Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Based upon the facts as shown, the Petitioner has failed to show that on or about February 2, 1977, James P. Pope, a licensee, under the beverage laws, failed to file application for transfer of said license after a bona fide sale of said business and license was made by James P. Pope to Gary W. Simmons and Anthony W. Speakman, contrary to s. 561.32, F. S. Therefore, James P. Pope as licensee is not held to any penalty under s. 561.29, F. S., or s. 210.16, F. S.

   
   

9. Based upon the facts as shown, it has been established that on or about February 2, 1977, James P. Pope, licensed under the beverage laws, did allow persons to wit; Gary W. Simmons and Anthony W. Speakman to assume a direct interest and engage in selling alcoholic beverages prior to filing a sworn application and being approved, contrary to s. 561.17, F. S., and thereby has subjected the licensee to the penalties found in s. 561.29, F. S.

   
   

10. Based upon the facts as shown, it has been established that on or about February 2, 1977, James P. Pope, licensed under the beverage laws, failed to manage and control all business conducted on the licensed premises under the beverage law, by allowing Gary W. Simmons and Anthony W. Speakman to take complete control of his licensed premises, contrary to Rule 7A-3.17, Florida Administrative Code, thereby subjecting the licensee to the penalties found in s. 561.29, F. S.

RECOMMENDATION

Based upon the facts as shown, and the violations as established, it is RECOMMENDED:

That the Director of the Division of Beverage grant the Respondent, James

P. Pope, 30 days from the date of the final order, within which time to effect a legal transfer of his beverage license, license no. 27-526, series 2-COP, to Gary W. Simmons and Anthony W. Speakman or some satisfactory party, after which time if no legal transfer has been achieved, the license held by James P. Pope, license no. 27-526, series 2-COP shall be revoked.

DONE AND ENTERED this 15th day of June, 1977, in Tallahassee, Florida.

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

(904) 488-9675

COPIES FURNISHED:

Charles T. Collett, Esquire Division of Beverage

The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

James P. Pope

4220 West Fairfield Drive Pensacola, Florida

Docket for Case No: 77-000734

Orders for Case No: 77-000734