STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO )

)

Petitioner, )

)

vs. ) CASE NO. 79-2109

) DABT NO. 6-77-80-A THE CASINO, INC., t/a SATAN'S )

DEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on February 26, 1980, in the Park Trammell Building, 1313 Tampa Street, Tampa, Florida. The notice of hearing in this case was established by publication in keeping with the provisions of Sections 120.60, 49.08 and 49.09, Florida Statutes. Nonetheless, the Respondent did not appear in the course of the hearing.

APPEARANCES

For Petitioner: Daniel C. Brown, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: No appearance.

ISSUE

1. Whether or not on or about October 7, 1977, The Casino, Inc., licensed under the beverage laws, did sell an alcoholic beverage, to-wit: beer, in a place located at 4465 49th Street North, St Petersburg, Florida, a premises not covered by its beverage license as described in the application therefor, contrary to Section 562.06, Florida Statutes.

   
   

2. Whether or not on or about October 7, 1977, The Casino, Inc., licensed under the beverage laws, did conspire with James Tarpey to carry out an act, to- wit: sale of alcoholic beverages without a license, which would be or is in violation of the provisions of the Beverage Law, contrary to Section 562.23, Florida Statutes.

FINDINGS OF FACT

1. At the time the current Notice to Show Caused Administrative Complaint was brought by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, the Respondent, The Casino, Inc. , was the holder of a Series 2-COP license, No. 62-545, to trade as Satan's Den at the location 4495 49th Street,

   St. Petersburg, Florida. Although the license most recently issued to the Respondent expired on September 30, 1978, the matter was in litigation at the time of the expiration and the license remaining in effect pending the outcome of this hearing. 1/

   
   

2. The facts in dispute reveal that on October 7, 1977, Severage Officer William R. Wiggs went to a business location at 4465 49th Street North, St. Petersburg, Florida, being operated by the Respondent. Then Wiggs arrived at the door, he was charged $3.00 to enter that building and was told that while he was in the building any alcoholic beverage he consumed would be free. He entered the building and was served an alcoholic beverage on four occasions by an employee or employees of the Respondent.

   
   

3. The proximity of the building at which Beverage Officer Wiggs was served alcoholic beverages on October 7, 1977, to the actual licensed premises location is shown in the Petitioner's Exhibit 5 admitted into evidence. This exhibit is a diagram of the licensed premises and the building in question, roughly depicting their position in reference to each other and to 49th Street. The rectangular figure marked with an X shows the location 4465 49th Street North and the rectangular figure marked with a zero depicts the licensed premises shown by the records of the Petitioner and on the face of the license.

   
   

4. Subsequent to his visit, Officer Wiggs requested a search warrant to be issued by the County Court of Pinellas County, Florida, and that warrant was issued which allowed a search of the building at 4465 49th Street North. The warrant was executed on October 11, 1977, and those matters returned in inventory are shown in Petitioner's Exhibit 7 admitted into evidence, which is a copy of the inventory.

   
   

5. Among the items which were obtained from the building were beer, wine and whiskey.

   
   

6. The facts in the case also show that beer had been delivered to the location at 4465 49th. Street North to the Respondent trading as Satan's Den and the deliveries were made in the beginning of October, 1977, around the time of Officer "Wiggs' initial trip to that location and the time of the execution of the search warrant.

   
   

7. On October 13, 1977, James Tarpey, President of the Respondent corporation, called the Division of Alcoholic Beverages and Tobacco in the person of Norman J. Stephens and stated to Stephens that the beer which had been seized at the time of the execution of the search warrant was property which Tarpey owned.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

9. The Notice of Hearing in this case is deemed to be adequate.

   
   

10. The Respondent has been charged in the Notice to Show Cause/Administrative Complaint, in Count One (1), with selling an alcoholic beverage; namely beer, at a place located at 4465 49th Street North, St. Petersburg, Florida, with a further allegation that this premises is not covered by the beverage license described in the application for that license, all contrary to Section 562.06, Florida Statutes. 2/

11. The facts in this case reveal that Beverage Officer William R. Wiggs was served alcoholic beverages on October 7. 1977, at 4465 49th Street North, St. Petersburg, Florida, and this service was made by the Respondent in the person of its employee or employees. The facts further show that the location where the alcoholic beverage was served was a location different than the authorized location for the licensed premises, that authorized location being 4495 49th Street North, St. Petersburg, Florida. Therefore, the service of the alcoholic beverage on October 7, 1977, to Officer Wiggs was in violation of Section 562.06, Florida Statutes, and subjects the Respondent to the penalties found in Section 561.29, Florida Statutes.

    
    

12. Count Two (2) of the Notice to Show Caused Administrative Complaint charges the Respondent with conspiring with James Tarpey to carry out an act,

    to-wit: the sale of alcoholic beverages without a license, which would be or is in violation of the provisions of the beverage laws, specifically Section 562.23, Florida Statutes. 3/

    
    

13. Upon consideration of the facts related herein, those facts are insufficient to demonstrate the existence of a conspiracy between the Respondent and James Tarpey for the purpose of selling alcoholic beverages without a license and it is concluded as a matter of law that the Petitioner has failed to prove such a violation. It is further recommended that this Count be dismissed.

RECOMMENDATION

Based upon the violation as established, it is RECOMMENDED that the license of the Respondent, The Casino, Inc., License 62-545, Series 2-COP, be REVOKED.

DONE AND ENTERED this 20th day of March, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTES

1/ 561.27 Renewing license.--

1. A licensee under the Beverage Law shall be entitled to a renewal of his annual license from year to year, as a matter of course, on or before September

   30 by presenting the license for the previous year or satisfactory evidence of its loss or destruction to the division and by paying the annual license tax and giving any bond required of such licensee under the Beverage Law.

2. A license may be renewed subsequent to September 30 of each year only upon making to the division a delinquent application for approval, accompanied by an affidavit stating that no sales of alcoholic beverages have been made subsequent to September 30, and upon payment of a penalty of $5 for each month or fraction of a month of delinquency, or upon payment of a penalty of 5 percent of the license fee, whichever amount is the greater. All licenses not renewed within 60 days of September 30 will be canceled by the division unless such license is involved in litigation; however, the division may allow a licensee to

renew the license subsequent to the 60-day period after good and sufficient cause for the delinquency has been shown to the division by the licensee.

2/ 562.06 Sale only on licensed premises.-- Each license application shall describe the location of the place of business where such beverage may be sold. It is unlawful to sell or permit the sale of such beverage except on the premises covered by the license as described in the application therefor.

3/ 562.23 Conspiracy to violate Beverage Law; penalty.--If two or more persons shall conspire to do any act which is in violation of any of the provisions of the Beverage Law, and one or more of such persons do any act to effect the object of the conspiracy., each of the parties to such conspiracy, if the act so conspired to be done would be a misdemeanor under the provisions of the Beverage Law, shall be guilty of a misdemeanor of the second degree, punish- able as provided in s. 775.082 or s. 775.083, or, if the act so conspired to be done would be a felony under the provisions of the Beverage Law, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

COPIES FURNISHED:

Daniel C. Brown, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 79-002109

Orders for Case No: 79-002109