STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 77-2040

) DABT NO. 2-76-19A

W.D. HARREL FISH BAIT AND TACKLE, ) 30-82 1-COP, Lake Talquin Road, ) Quincy, Florida , Jennie E. ) Harrell. )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, on January 18, 1978, at Tallahassee, Florida, 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

Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of Section 562.12, Florida Statutes, pursuant to Section 561.29(1) 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. At the hearing, respondent moved to dismiss the charges on the ground that the Notice of Hearing issued on November 21, 1977, by the Hearing Officer was defective in that it did not adequately describe the 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 offense 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, by an authorized agent of respondent was not contested. Further, respondent's motion for

continuance indicates that her counsel was aware of the subject matter of the charges. Additionally, if such had not been the case, respondent had sufficient opportunity during the period in which the case had been continued to seek amplification or clarification of the issues involved in the case as set forth in the Notice of Hearing.

FINDINGS OF FACT

1. Respondent Jennie E. Harrell, d/b/a W. D. Harrell Fish Bait and Tackle,

   515 South Roberts Street, Quincy, Florida, holds license Number 30-82, Series 1 COP, issued by petitioner which permits the sale of beer for consumption on the premises. The license was in effect during August, 1976. (Petitioner's Exhibit l)

   
   

2. An occupational license for 1975-76 issued by the City of Quincy, Florida, Number 394, was issued to the Lake Talquin Fish Market, 515 South Roberts Street, Quincy, Florida, on October 15, 1975, to engage in the occupation of merchant. A similar license in the same name at the same address, Number 395, and issued on the same date, authorized the licensee to engage in the occupation or business of retail sale of gasoline. City occupational license 1976-77, Number 298 ,issued by the City of Quincy to Lake Talquin Fish Market at 517 South Roberts Street, to engage in the business or occupation of merchant, was issued on September 30, 1976. The Lake Talquin Fish Market is located at 517 South Roberts Street. The official records show that the license was issued to Jenny Harrell of 515 South Roberts Street, Quincy, Florida, and that the 1975-76 license Number 394 was issued in the same name. (Petitioner's Exhibits 2 and 10, supplemented by Petitioner's Composite Exhibit 3)

   
   

3. On August 15, 1976, at approximately 10:55 a.m., State Beverage Officers Gary Sams and Fred Miller met with a reliable informant, one Guy Williams, in the vicinity of respondent's licensed premises at 515 South Roberts Street, Quincy, Florida. After searching Williams for any money or alcoholic beverages on his person, Sams gave him $7.20 and instructed him to attempt to purchase whiskey at respondent's place of business, W. D. Harrell Fish Bait and Tackle. The officers observed Williams drive to the building in question, but could not see his subsequent actions. He returned approximately fifteen to twenty minutes later with a partially filled one-half pint bottle of Seagram's Seven Crown whiskey. Williams had entered respondent's premises and asked a woman behind the counter if he could purchase a half-pint of whiskey. She told him he would have to go next door. He thereupon entered the adjacent premises, Lake Talquin Fish Market, and ordered a half-hint of Seagram's Seven Crown whiskey from a man there. The man went in the back of the store and returned with a sealed one-half pint bottle labeled Seagram's Seven Crown. Williams paid

   $2.50 for the bottle, took a drink from it, and found that it was, indeed, whiskey. The bottle was thereafter labeled for identification by the beverage officers and placed in the evidence room of petitioner's Tallahassee office.

   However, it was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams)

   
   

4. On August 22, 1976, the two beverage agents again met with Williams at the same location at approximately 9:30 a.m. Following the same procedures as before, Sams gave Williams $4.00 and instructed him to go to respondent's state- licensed premises to attempt to purchase liquor. The same sequence of events as on August 15th occurred, involving a woman at W. D. Harrell Fish Bait and Tackle, and a man at the Lake Talquin Fish Market. This time the purchase was for a one-half pint sealed bottle of Seagram's Golden Dry Gin for which Williams paid $2.50. Again, he drank out of the bottle and verified that it was gin.

   This bottle was turned over to the beverage agents who verified that it was gin by its smell, and it was tagged and placed in petitioner's evidence room in Tallahassee. It, too, was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams)

   
   

5. On August 23, 1976, criminal complaints were filed by petitioner's representatives against respondent and others, and, on August 24, a search warrant was issued authorizing a search of the premises of the Lake Talquin Fish Market at 517 South Roberts Street, and warrants were issued for the arrest of respondent and the individuals who had allegedly sold the alcoholic beverages to Williams. At approximately 5:15 p.m. on August 28, Agent Miller, together with local police officers, served the search warrant on one Isaac Ford at the Lake Talquin Fish Market. A search of the premises failed to reveal the presence of alcoholic beverages. The agents observed a well-worn path leading approximately

   15 or 20 feet to an adjacent condemned frame house, and also an electric wire running from the store to the house. Further, they discovered a light switch in the store which controlled a light in the northeast room of the house. They observed a quantity of liquor and wine bottles on the floor of that room. It was noted that the house was secured by a padlock. Upon Inquiry, Ford stated that he did not have the key to the lock. The agents then asked respondent, who was at her place of business, if she had the key. She answered in the negative. When asked if the whiskey that had been observed in the house belonged to her, she said that it did not, but that she owned the house and wanted the whiskey off the premises. The agents thereupon forced entry into the house and seized

   265 bottles of alcoholic beverages found inside. The bottles were sealed and strips indicating that tax had been paid were on the bottles. Sixteen of the bottles were assorted brands of wine; the remainder were liquor. (Testimony of Sams, Miller, Fader, Petitioner's Exhibits 5-13)

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner has charged that the respondent kept and maintained a place known as the Lake Talquin Fish Market located at 517 South Roberts Street where alcoholic beverages were sold unlawfully1 contrary to Florida Statute 562.12, and therefore seeks to take disciplinary action against the licensee pursuant to Section 561.29(1)(b), Florida Statutes. These statutory provisions read pertinently as follows:

   
   

   "562.12 Beverages sold with improper license, or without license, or held with intent to sell prohibited.--

   1. . . . any licensee . . who keeps and maintains a place where alcoholic beverages are sold unlawfully, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083."

      
      

      "561.29 Revocation and suspension of license; power to subpoena; hearing; appeal to courts.--

      (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:

      (b) Violation by the licensee, . . of any laws of this state . .

7. The evidence in this case is sufficient to establish that the Lake Talquin Fish Market is licensed by the City of Quincy in respondent's name, and that either she or another woman at her place of business at W. D. Harrell Fish Bait and Tackle, which premises are immediately adjacent thereto, informed petitioner's informant that liquor could be obtained at the Lake Talquin Fish Market. The circumstances surrounding the purchases in which the individuals who sold the beverages went to the rear of the store strongly suggest that they obtained the bottles from the abandoned house next door which respondent admitted that she owned. Although she denied knowledge of the liquor found there, the circumstances are such as to overcome such denial. The facts as to the prior sales to Williams from the Lake Talquin Fish Market, and respondent's control over that establishment as evidenced by city licensing documents, together with the close proximity and shared electricity of the Lake Talquin Fish Market and the adjoining house, all combine to show that she kept and maintained the Lake Talquin Fish Market and that it was a place where alcoholic beverages were sold unlawfully.

   
   

8. Respondent attempted to introduce into evidence an Order of the Gadsden County Court dismissing criminal charges against the respondent of maintaining a place where alcoholic beverages were unlawfully sold on August 15 and 22, 1976. This exhibit was rejected as required by Section 561.29(1)(d) which states that such matters may not be considered in proceedings for suspension or revocation of licenses. (App. Exhibit 1)

   
   

9. Respondent also sought to suppress evidence of the search of the abandoned house and discovery of the liquor therein on the grounds that it had been obtained through an unreasonable search and seizure and was not relevant to the instant proceedings. Even assuming that the scope of the search authorized by the warrant did not extend to the abandoned house, or that respondent could protest such a search in a building condemned by the City, her acknowledgment that she owned the place and her request to beverage officers to remove any liquor therein amounted to a consensual search and seizure. Additionally, the alcoholic beverages were in plain view from the outside of the house.

   
   

10. Based on the foregoing, it is concluded that respondent violated the statutory provisions as alleged and the only remaining question is the penalty to be imposed. In the absence of evidence indicating prior offenses, it is considered that a civil penalty in the amount of $500.00 as authorized under Section 561.29(4), F.S. , is warranted and appropriate.

RECOMMENDATION

That a civil penalty in the amount of $500.00 be imposed against Jennie E. Harrell, d/b/a D. Harrell Fish Bait and Tackle, License Number 30-82, pursuant to Section 561.29(1)(h) and (4),F.S., for violation of Section 562.12(1), F.S.

DONE and ENTERED this 27th day of January, 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 A. Nuzum, Director Division of Beverage

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304

Docket for Case No: 77-002040

Orders for Case No: 77-002040