STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 77-840

) EARLY MITCHELL t/a MITCHELL'S ) FISH MARKET, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on June 30, 1977 at Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles T. Collett, Esquire and

Richard Gentry, Esquire Staff Attorneys Division of Beverage The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: Early Mitchell represented himself

By Notices to Show Cause dated November 5, 1976 and March 28, 1977 the State of Florida, Division of Beverage, seeks to assess a civil penalty against or to suspend or revoke the beverage license number 47-57 issued to Early Mitchell t/a Mitchell's Fish Market, Tallahassee, Florida. As grounds therefor it is alleged that on October 5, 1976 the licensee had in his possession a container of liquor to wit: 1 partial tenth gallon of Smirnoff vodka and that on March 9, 1977 that licensee had in his possession on his beer license premises a partially filled one half pint of Smirnoff vodka, neither of which was permitted to be on the premises by his license.

Petitioner called three witnesses and three exhibits were admitted into evidence. After his rights were fully explained to him by the Hearing Officer Respondent declined to testify or present any evidence.

FINDINGS OF FACT

1. Early Mitchell t/a Mitchell's Fish Market holds 1-COP beverage license which authorizes the sale of beer only for consumption on the premises.

2. At the time scheduled for the commencement of the hearing Mitchell was not present and the hearing commenced. Exhibit 1 shows that the notice of the hearing was served upon Mitchell on May 10, 1977. Shortly thereafter Mitchell arrived and the hearing proceeded.

   
   

3. On October 5, 1976 a beverage agent accompanied by an officer from the Tallahassee Police Department inspected Mitchell's Fish Market. Inside they found a partially filled bottle of Smirnoff vodka which was seized, duly marked, and presented in evidence at the hearing. A description of the bottle was substituted for the exhibit and Exhibit 2 was returned to the Beverage Division.

   
   

4. On March 9, 1977 another beverage officer, on a routine inspection of Mitchell's Fish Market, discovered behind the counter concealed in an open beer case, one partially filled bottle of Smirnoff vodka. The bottle was seized, marked for identification and retained in the custody of the seizing beverage officer until such time as it was produced in evidence at the hearing. A description of the bottle was entered into the record and Exhibit 3 returned to the Division of Beverage.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the licensee and the alleged offenses.

   
   

6. Section 562.02 F.S. provides:

   
   

   "It is unlawful for a licensee under the beverage law or his agent to have in his possession, or permit anyone else to have in his possession, at or in the place of business of such licensee, alcoholic beverages not authorized by law to be sold by such licensee."

7. Section 561.29 Florida Statutes provides in pertinent part: "(1) The Division of Beverage is given full

   power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, where it is determined or found by the division upon sufficient cause appearing of:

   1. Violation by the licensee, his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state...

      (4) The division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, or any rule issued pur- suant thereto, not to exceed $1,000 for violations arising out of a single transaction. If the licensee fails to pay the civil penalty his license shall be suspended for such period of time as the division may specify."

8. From the foregoing it is concluded that the licensee was guilty of two violations of the Beverage Law as alleged. It is therefore,

RECOMMENDED that the licensee be assessed a civil penalty in the amount of

$500. In the event the civil penalty is not paid forthwith it is further

RECOMMENDED that the license of Early Mitchell, t/a Mitchell's Fish Market be suspended for a period of six (6) months.

DONE and ENTERED this 15th day of July, 1977, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Charles T. Collette, Esquire and

Mr. Early Mitchell Richard Gentry, Esquire

Mitchell's Fish Market Division of Beverage

652 Eugenia Street 725 S. Bronough Street

Tallahassee, Florida Tallahassee, Florida 32304

Docket for Case No: 77-000840

Orders for Case No: 77-000840