STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2039

) EDWARDS STORE, 30-23 1-COP, )

Highway 269, 2 miles s/o River ) Jct., Chattahoochee, Florida, ) Harold Vernon Edwards, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Tallahassee, Florida, on January 30, 1978, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Francis Bayley, Esquire

Department of Business Regulation The Johns Building

Tallahassee, Florida 32304

For Respondent: Jack A. Harnett, Esquire

Post Office Box 706 Quincy, Florida 32351

ISSUE PRESENTED

Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of Sections 562.12 and 562.02, Florida Statutes, pursuant to Section 561.29, Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner.

The hearing was originally scheduled for December 8, 1977, but Respondent filed a motion for continuance which was granted by the Hearing Officer, and the hearing was rescheduled for January 18, 1978. Another hearing on that date precluded reaching the instant case and therefore the matter was again continued until January 30, 1978. At the hearing, Respondent moved to dismiss the charges on the ground that the Notice of Hearing issued by the Hearing Officer on November 21, 1977, was defective in that it did not adequately describe Petitioner's Notice to Show Cause or attach it to the Notice of Hearing. The motion was denied upon a determination that Respondent had adequately been placed on notice as to the nature of the offenses charged and due to the fact that the notice to show cause had been sent by certified mail to Respondent and

that the receipt thereof on August 13, 1977, which reflected his signature, was not contested. Further, Respondent's motion for continuance indicates that his counsel was aware of the subject matter of the charges. Additionally, if such had not been the case, Respondent had more than ample opportunity during the periods in which the case was continued to seek amplification or clarification of the issues involved as set forth in the Notice of Hearing.

Respondent also inquired as to whether Chapter 120, Florida Statutes, requires that the Hearing Officer have access to a hearing transcript prior to rendering a Recommended Order to the Petitioner. The undersigned Hearing Officer ruled that such a transcript is unnecessary under applicable law and regulation, specifically Rule 28-5.25(7), Florida Administrative Code, which provides that at a hearing during which the services of a court reporter have been retained, any party who wishes a written copy of the testimony shall order the same at his own expense. Upon inquiry by the Hearing Officer, both parties to the proceedings indicated that they did not intend to order a transcript of the testimony adduced at the hearing. Accordingly, the Hearing Officer advised respondent that the Recommended Order in this matter would be prepared without access to such a transcript.

FINDINGS OF FACT

1. Respondent, Harold V. Edwards, holds License No. 30-23, Series 1-COP, issued to him in the name of "Edwards Store,' Chattahoochee, Florida, and held the same at the time of the alleged violations charged by Petitioner in this matter. A series 1-COP license authorizes the sale of beer for consumption on the licensed premises only. (Petitioner's Exhibit 1, Testimony of Sams)

   
   

2. At approximately 10:00 a.m. on August 15, 1976, Petitioner's beverage officer, Gary E. Sams, drove a paid informant, Guy Williams, to a place near Respondent's place of business where they met another beverage agent, Fred Miller, who was in a separate vehicle. At that time, Sams searched Williams and determined that he had no alcoholic beverages or money on his person. Sams gave him $5.00. Williams then proceeded to drive Sams' vehicle to Edwards' Store with Sams in a prone position in the back seat. Upon arrival, Williams entered the store and ordered a half pint of Seagrams gin from a short, chunky, heavy built, white woman behind the counter. He also purchased a beer. He observed the woman go through a door in the back of the store, and she thereafter returned with a sealed bottle labeled "Seagrams Extra Dry Gin." She gave him

   $2.20 change from a $5.00 bill which he had given her. Williams thereupon returned to the car outside and he and Sams returned to the area where Miller had been waiting. Sams opened the bottle and determined that it was liquor by its smell. He permitted Williams to take two drinks from the bottle and Williams determined that it was gin. Sams placed an identification label on the bottle which he and Williams signed and it was later placed in Petitioner's evidence room in their Tallahassee office. On some date between August 15 and August 29, 1976, Sams inspected Respondent's premises at which time Respondent's wife, Louise Edwards, signed a state inspection form. Sams noted that she met the general description of the woman who had sold Williams alcoholic beverages on August 15. Mrs. Edwards told Sams at this time that she and her husband were the only persons who worked at the store. Sams thereafter inserted her name on the identification label of the bottle turned over to him by Williams to reflect that she had been the seller of the alcoholic beverages. At the hearing, Respondent attacked the credibility of Williams based on what are considered by the Hearing Officer to be minor discrepancies in his testimony. It is found that his testimony, in conjunction with that of Sams, is sufficient to establish that Louise Edwards sold him a half-pint bottle of Seagrams Extra Dry Gin on

   August 15, 1978, at Respondent's licensed premises. (Testimony of Sams, Miller, Williams, Petitioner's Exhibit 2)

   
   

3. On August 24, 1976, a warrant was issued by the Circuit Court of Gadsden County, Florida, authorizing the search of Respondent's premises, together with the curtilage and all outbuildings. On August 29, 1976, at about 10:30 a.m., Sams, Miller, and other beverage agents and county law enforcement officials entered Respondent's store at which time Sams served the search warrant on Louise Edwards. She went to the living quarters of the building behind the store and Miller heard her go down the hallway and close a door. Miller proceeded down the hallway and found that one door at the end of the hallway was locked. When Mrs. Edwards was asked if she had the key, she replied in the negative, stating that it was her daughter's room and that no one was allowed to go in. At that point, Miller opened the lock with a jackknife. In the room, the agents found a number of cases of alcoholic beverages containing some 252 bottles of assorted sizes and brands of whiskey, vodka, rum, and gin. The bottles were found in a paper sack which Mrs. Edwards said had been given to her husband by a friend and were "not for resale." The agents inventoried the contents of the room, placed identification tags on the items and placed the seized articles in the evidence room of Respondent at Tallahassee. Although the room where the liquor was found was once a separate building, it has been joined to the main building by means of the hallway and there was free access between the structures. Respondent was in a bed in the living quarters at the time of the search. (Testimony of Sams, Miller, Petitioner's Exhibits 1-4)

   
   

   CONCLUSIONS OF LAW

   
   

4. Petitioner charges Respondent with violating Section 562.12, Florida Statutes, on August 15, 1976, by the sale of gin on premises licensed only for the sale of beer, and violation of Section 562.02, Florida Statutes, on August 29, 1976, by having 252 bottles of tax-paid whiskey on the licensed premises, which is not permitted by the license therefor.

   
   

5. Section 562.12 provides pertinently that it is unlawful for any licensee to sell alcoholic beverages except as permitted by his license. As heretofore found, Mrs. Louise Edwards sold a half-pint bottle of Seagrams Extra Dry Gin to Guy Williams on August 15, 1976, at Respondent's licensed premises. Respondent's 1-COP license permits only the sale of beer for consumption on the licensed premises. (Rule 7A-1.13, Florida Administrative Code) The Hearing Officer took official recognition of the aforesaid rule. It is considered that the act of Respondent's wife in the aforesaid sale, as his agent or employee, under the totality of the circumstances, was known or should have been known by and is chargeable to the licensee himself. Accordingly, it is concluded that Respondent violated the statutory provision, as alleged.

   
   

6. Section 562.02 makes it unlawful for a licensee 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. The evidence establishes that on August 29, 1976, a large quantity of alcoholic beverages of a type not authorized to be sold under Respondent's license, was found in a room connected to Respondent's place of business. In this respect, it is considered that the term "at or in the place of business of such licensee" refers to the licensed premises in question. The term "licensed premises" is defined in Section 561.01(11) as follows:

   
   

   (11) "Licensed premises" means not only rooms where alcoholic beverages are stored or sold by the licensee,

   but also all other rooms in the building which are so closely connected therewith as to admit of free passage from drink parlor to other rooms over which the licensee has some dominion or control . . .

   
   

7. The room in which the alcoholic beverages were discovered was connected by a hallway to Respondent's store building and therefore falls within the above definition as part of the licensed premises. Respondent objected to the admission of evidence concerning the search and seizure on the grounds that the affidavit of the beverage agent in support of issuance of the search warrant contained insufficient facts to justify its issuance. However, it is not the function of a Hearing Officer to question the validity of a search warrant properly authorized by a court of competent jurisdiction. Petitioner's agents acted within the scope of the warrant in conducting its search and subsequent seizure of the alcoholic beverages. (See also Section 562.41, Florida Statutes) It is concluded that Respondent violated Section 562.02, as alleged.

   
   

8. Respondent offered in evidence an Order of Dismissal of charges against Louise Cameron Edwards in the County Court of Gadsden County, Florida, based on the incident involving the sale of alcoholic beverages to Guy Williams on August 15, 1976. Upon objection by Petitioner that Section 561(1)(d) precludes consideration of the outcome of criminal cases in administrative proceedings, the exhibit was not received in evidence. (Appellate Exhibit 1)

   
   

9. Section 561.29(1)(b) authorizes Petitioner to revoke or suspend the license of a licensee when it is determined that a licensee has violated any laws of this state. Accordingly, Respondent having been found to have violated Sections 562.02 and 562.12, Florida Statutes, disciplinary action is authorized. Subsection 561.29(4) permits Petitioner to impose a civil penalty against a licensee for any violation, not to exceed $1,000 for violations arising out of a single transaction. In view of the fact that no previous derelictions on the part of Respondent have been shown, it is considered that a civil penalty in the amount of $500 is appropriate under the circumstances.

RECOMMENDATION

That Petitioner impose a civil penalty of $500 against Respondent, Harold

V. Edwards, under the authority of Section 561.29(1)(b) and (4), Florida Statutes, for violation of Sections 562.02 and 562.12, Florida Statutes.

DONE and ENTERED this 15th day of February, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Francis Bayley, Esquire Department of Business Regulation The Johns Building

Tallahassee, Florida 32304

Jack A. Harnett, Esquire Post Office Box 706 Quincy, Florida 32351

Charles Nuzum, Director Division of Beverage

Department of Business Regulation State of Florida

Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Docket for Case No: 77-002039

Orders for Case No: 77-002039