STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 79-2225

) DABT NO. 27113-A ALBERT PARRISH t/a RED HONEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on November 28, 1979, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Daniel C. Brown, Esquire

Staff Attorney

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

For Respondent: Albert Parrish

835 East Brownlee Street Starke, Florida

ISSUES

1. Whether or not on or about May 11, 1979, on his licensed premises, Albert Parrish, while being directly in charge of these premises, did unlawfully permit persons to play games of dice and cards for money, in violation of Section 849.01, Florida Statutes, and Section 561.29, Florida Statutes.

   
   

2. Whether or not on or about June 1, 1979, in his licensed premises, the Petitioner, Albert Parrish, did unlawfully maintain a house, booth, tent, shelter or other place, to wit: The Red Honey, 835 East Brownlee Street, Starke, Bradford County, Florida, for the purpose of gaming or gambling, in violation of Section 849.01, Florida Statutes, and Section 561.29, Florida Statutes.

FINDINGS OF FACT

1. This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the State of Florida, Division of Alcoholic Beverages and Tobacco, against Albert Parrish who trades as the Red Honey in a licensed premises located at 835 East Brownlee Street, Starke, Bradford County, Florida. The Respondent, Albert Parrish, is the holder of license No. 14-69,

   Series 2-COP, which allows the Respondent to sell beer and wine at the aforementioned premises.

   
   

2. The State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida charged with the duty to regulate those persons and other entities who hold beverage licenses within this state and it is in keeping with that charge that the Notice to Show Cause (Administrative Complaint) has been brought against the Petitioner, Albert Parrish, for the offenses as set out in the Issues statement of this Recommended Order. The Respondent has contested those allegations and the case has been considered in accordance with Subsection 120.57(1), Florida Statutes.

   
   

3. On May 11, 1979, Beverage Officer Phyllis Williams, in the company of Columbia County, Florida, Sheriff's Officer Oliver Lake went to the licensed premises in Starke, Florida. After entering the licensed premises, they stayed for a period of one to one and one-half hours, during which time the Respondent, Albert Parrish, was present. In this sequence of time Albert Parrish was located at a pool table found in the licensed premises and a number of other persons were at the pool table rolling dice, which is a game of chance. Money was being placed on the table by the players and Parrish was picking up money from the table and placing it in a box which was in his custody and control. Parrish was in charge of the dice game to the extent of being an active participant and receiving financial benefit and to the extent of allowing other persons to play the dice game.

   
   

4. While Officers Williams and Lake were in the licensed premises on May 11, 1979, they also observed a card game being played and this went on for some forty-five minutes. The game being played was a game known as "Tunk" which on this occasion was being played with wagered money pieced on the table. The Respondent, Parrish, was not directly participating in the card game, in that he was running the dice game at a separate location within the licensed premises; however, the person who appeared to be in charge of the "Tunk" card game was seen to pass an item to Parrish during the course of the time in which the officers were in the licensed premises. Therefore, although Parrish did not actively participate in the card game, he did unlawfully permit other persons to participate in the card game in his licensed premises.

   
   

5. On June 1, 1979, Beverage Officer James Bates went back to the licensed premises in Starke, Florida. On this occasion, Bates observed a number of persons around a pool table and Parrish standing next to the pool table and a dice game being played. Two dice were being thrown and money was being wagered. Parrish was in charge of the dice game to the extent that wagers of money would be placed and Parrish would put a playing card on top of the money and then when a winner had prevailed, Parrish would pay off that winner. Bates observed the fact of this activity for approximately two hours and Parrish remained at the pool table for the entire period of time. Bates also observed an individual who was acting as a lookout and when police cars would pass by, the lockout would give a warning and all of those persons in the licensed premises would step away from the pool table until the police car had left the area of the licensed premises, at which time the game would be resumed.

   
   

   CONCLUSIONS OF LAW

   
   

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

7. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the Respondent, Albert Parrish, while being directly in charge of the licensed premises located at 835 East Brownlee Street, Starke, Florida, actively participated in and allowed others to play dice games in his licensed premises on May 11, 1979. On that date the Respondent, Albert Parrish, allowed other persons to play card games, to wit, "Tunk". The playing of the games of dice and cards was for money and constituted games of chance, and was in violation of the provisions of Section 849.01, Florida Statutes, to the extent that Albert Parrish and others were in violation of that provision of law and for such the Respondent is subject to the penalties found in Section 561.29, Florida Statutes.

   
   

8. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the Respondent, Albert Parrish, on June 1, 1979, at his licensed premises, located at 835 East Brownlee Street, Starke, Florida, was unlawfully maintaining a place for the purpose of gaming and gambling by allowing a dice game to be operated in the licensed premises, to the extent that he was the proprietor of that dice game, thereby causing him to personally violate Section 849.01, Florida Statutes, and be subject to the penalties of Section 561.29, Florida Statutes.

RECOMMENDATION

It is recommended that the Respondent, Albert Parrish, have his beverage license No. 14-69, Series 2-COP, suspended for a period of ninety (90) days.

DONE AND ENTERED this 18th day of December, 1979, in Tallahassee, Florida.

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

(904) 488-9675

COPIES FURNISHED:

Daniel C. Brown, Esquire Staff Attorney

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

Albert Parrish t/a Red Honey

835 East Brownlee Street Starke, Florida

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,

Petitioner,

vs. CASE NO. 79-2225

(DABT NO. 27113-A)

ALBERT PARRISH t/a RED HONEY,

Respondent.

/

FINAL ORDER

The undersigned has reviewed the entire record in this matter. Upon that review it appears that the issues to be determined are as follows:

1. Whether, on or about May 11, 1979 on his licensed premises, Albert Parrish, while being directly in charge of those premises did unlawfully permit persons to play games of change dice and cards for money, in violation of Section 849.01 Florida Statutes.

   
   

2. Whether on or about June 1, 1979, in his licensed premises Albert Parrish did unlawfully maintain a house, to wit: the Red Honey, 835 East Brownlee Street, Starke, Bradford County, Florida, for the purpose of gaming or gambling, in violation of Section 849.01, Florida Statutes and Section 561.29, Florida Statutes.

   
   

3. What sanctions should be imposed if either or both violations did in fact occur.

An administrative complaint was lodged by this agency against Albert Parrish on July 25, 1979, charging the above-mentioned violations of Sections 849.01, 561.29, Florida Statues. The case was assigned to the Division of Administrative Hearings and, pursuant to notice, a Hearing Officer from the Division of Administrative Hearings held an evidentiary hearing on November 28, 1979 in Jacksonville, Florida, at which hearing Albert Parrish was present. The Hearing Officer entered his Recommended Order pursuant to Section 120.57(1), Florida Statutes, on December 18, 1979.

This agency adopts the findings of fact recited by the Hearing Officer in his Recommended Order, to wit:

Albert Parrish trading as the Red Honey, at 835 Brownlee Street, Starke, Bradford County, Florida (hereinafter "the licensed premises"), holds license number 14-69, Series 2-COP, which allows his to sell beer and wine at the licensed premises. The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida charged with the duty to regulate those who hold beverage licenses within this state. It is in keeping with that duty that the Notice to Show Cause in this matter has been brought by the Division against Albert Parrish.

The matter has been considered in accordance with Section 120.57(1), Florida Statutes (1978 Supp.).

On May 11, 1979 Beverage Officer Phyllis Williams and Columbia County Deputy Sheriff Oliver Lake, the latter being assigned to special detail with the Division, went to the licensed premises. After entering they stayed for a period of one to one and one-half hours. During that stay, Albert Parrish was present. Albert Parrish was positioned at a pool table rolling dice with others, which is a game of chance. Money was being placed on the table by the players during the game and Parrish was picking money up from the table and placing it in a box which was in his custody and control Parrish was in charge of the dice game. He was an active participant and received financial benefit therefrom.

While Officers Williams and Lake were on the licensed premises on May 11, 1979, they also observed the playing of a card game known as "Tunk," a game of change, being played for some forty-five (45) minutes. Money was being wagered in the game. The Respondent, Parrish was not directly participating in the card game; he was directing the dice game at a separate location in the licensed premises. However, the person who appeared to be in charge of the card game was seen to pass an item to Parrish during the course of the time in which the officer's were on the premises. Therefore, although Albert Parrish did not actively participate in the card game he had knowledge of it and permitted other persons to participate in it on his licensed premises.

On June 1, 1979, Beverage Officer James Bates went to the licensed premises. On this occasion, Bates observed a number of persons around a pool table. Albert Parrish was standing next to the pool table while those gathered at the table participated in a dice game upon which money was wagered. Parrish was in charge of the game. Wagers would be placed and Parrish would place a playing card indicating the winning number on top of the money wagered. When the winner had prevailed, Parrish would pay him from the wagers. Bates observed the activity for two hours and Parrish remained at the pool table for the entire time. Bates also observed an individual acting as a lookout who would warn the players when a police car was approaching, whereupon the players would move away from the pool table until the police car had left the area.

From the record, this agency supplements the Hearing Officer's findings of fact as follows:

On November 5, 1979, Albert Parrish pleaded guilty to the offense of permitting gambling in a place under his control, arising out of the above described incidents. He was thereupon adjudicated guilty of that offense before the Circuit Court of the Eighth Judicial Circuit, in and for Bradford County, Florida. See Petitioner's Exhibit 1, admitted in evidence and attached hereto.

CONCLUSIONS OF LAW

This agency adopts the Conclusions of Law recited by the Hearing Officer in his Recommended Order, to wit:

1. The Division of Administrative Hearings appropriately exercised jurisdiction over the matter.

   
   

2. Respondent, Albert Parrish, was in charge of the licensed premises actively participated in and allowed others to play games of change in his

   licensed premises on May 11, 1979, in violation of Sections 849.01, 561.29, Florida Statutes.

   
   

3. Respondent, Albert Parrish on June 1, 1979, at his licensed premises did unlawfully maintain a place-the licensed premises-for the purpose of gaming and gambling in violation of Sections 849.01, 561.29, Florida Statutes.

   
   

   To the Hearing Officer's Conclusions of Laws, this agency, upon a review of the complete record, adds the following:

   
   

4. On November 5, 1979, the Respondent, Albert Parrish, was convicted upon a plea of guilty of the offense of permitting gambling in a place under his control, in violation of Section 849.01, Florida Statutes, a felony of the third degree under the laws of the State of Florida. Accordingly, the Respondent, having been convicted of a felony within the preceding fifteen (15) years, is no longer qualified to hold a beverage license under the provisions of Sections 561.15(2) and (3), Florida Statutes.

Accordingly, the Hearing Officer's recommendation of a 90-day suspension of the beverage license is rejected. It is ORDERED:

That the beverage license issued to Respondent, Albert Parrish, being license number 14-69, Series 2-COP, be, and the same hereby is revoked.

DONE AND ENTERED this 31st day of December, 1979, in Tallahassee, Florida.

CHARLES A. NUZUM, DIRECTOR

Department of Business Regulation Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

COPIES FURNISHED:

Daniel C. Brown, Esquire Deputy General Counsel

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

(904) 488-7365

Mr. Albert Parrish

835 East Brownlee Street Starke, Florida

Mr. Charles C. Adams Hearing Examiner

101 Collins Building Tallahassee, Florida 32301

Docket for Case No: 79-002225

Orders for Case No: 79-002225