STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 80-504

) DABT NO. 27279-A

ESTELLE COLLINS, d/b/a )

21ST STREET GROCERY, )

)

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 August 5, 1980, in Room 409, Richard P. Daniel Building, 111 East Coast Line Drive, Jacksonville, Florida.

APPEARANCES

For Petitioner: William Hatch, Esquire

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

For Respondent: J. Kennedy Hutcheson, Esquire

341 East Bay Street Jacksonville, Florida 32202

ISSUE

The issue presented here concerns the accusation by the Petitioner directed to the Respondent that the Respondent, on or about January 24, 1980, did unlawfully have in her possession or permit or allow someone else to have in their possession, namely, Anthony Lewis Graham, alcoholic beverages, to wit:

one partial quart bottle of Smirnoff Vodka, one partial quart bottle of Gordon's Gin and one 200 ml bottle of Gordon's Gin, on the licensed premises and it is further alleged that the substances were not authorized by law to be sold under the Respondent's license, contrary to Section 562.02, Florida Statutes.

FINDINGS OF FACT

1. The Petitioner in this action is an agency of the State of Florida which has as its purpose the regulation of those several licensees who sell alcoholic beverages and tobacco products in the State of Florida.

   
   

2. The Respondent, Estelle Collins, is the holder of an alcoholic beverages license issued by the Petitioner, License No. 26-00766, Series 2-APS. This license allows the Respondent to sell beer and wine to be consumed off the

   licensed premises. The license is issued for the Respondent's premises located at 1152 East 21st Street, Jacksonville, Florida, where the Respondent trades under the name 21st Street Grocery.

   
   

3. On January 24, 1980, Anthony Lewis Graham, one of the Respondent's patrons in her licensed premises, removed a box from his automobile which was parked on the street in the vicinity of the licensed premises. He carried the box which contained a partially filled quart bottle of Gordon`s Gin; a partially filled quart bottle of Smirnoff Vodka and a partially filled 200 ml bottle of Gordon's Gin into the licensed premises. These bottles contained liquor, that is, alcoholic or spiritous beverages that were not authorized to be sold at the licensed premises under the terms and conditions of the license issued to the Respondent.

   
   

4. The box containing the liquor was carried in while an employee of the Respondent was working in the licensed premises and placed behind the meat counter. The box was left with the top opened. It is not clear whether the employee saw the bottles in the box prior to a routine premises inspection conducted by officers with the Division of Alcoholic Beverages and Tobacco.

   
   

5. The inspection took place shortly after Graham had brought the alcoholic beverages into the licensed premises. When the officers entered the premises, they identified themselves to the employee working in the store and this employee left to get the licensee. The employee returned with the Respondent, Estelle Collins, and the officers commenced inspection of the premises.

   
   

6. In the course of that inspection, they discovered the aforementioned bottles of alcoholic beverages in the box. They also noted other empty liquor bottles in the area of the meat counter and the service counter within the licensed premises. (There had been another occasion in February, 1979, when the Petitioner's officers had discovered empty gin and vodka bottles in the licensed premises, and this former situation brought about a citation to the Respondent but no penalty action was taken against the Respondent.)

   
   

7. No testimony was developed on the matter of the instructions which the Respondent had given to her employees on the subject of keeping unauthorized forms of liquor out of the licensed premises. The only remark which was established by the hearing dealing with the question of keeping those items away from the licensed premises was a statement by Graham, who said that it was not unusual for him to go behind the service counter in the licensed premises.

   
   

8. Following this inspection and the discovery of the alcoholic beverages, to wit: liquor bottles in the box, the Petitioner brought the present action against the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The focus of the petitioner's allegations in this cause is to the effect that the facts show that Section 562.02, Florida Statutes, dealing with possession of beverages not permitted to be sold under license has been violated. That provision states:

    562.02 Possession of beverage not permitted to be sold under license.--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.

    
    

    When the facts as reported herein are reviewed in the context of that provision of law, it is concluded that the unnamed employee of the Respondent permitted Anthony Lewis Graham to enter and leave the box with the partially filled bottles of gin and vodka in the licensed premises. These beverages were beverages not authorized by law to be sold under the Respondent's Series 2-APS beverage license.

    
    

11. Having made out the elements of proof set forth in Section 562.02; Florida Statutes, there remains to be resolved the question of whether the Respondent is "... culpably responsible for the alleged violations as a result of its own negligence, intentional wrongdoing or lack of diligence." See G & B of Jacksonville, Inc. v. State of Florida, 366 So2d. 877 (Fla. 1st DCA 1979). From the facts found, it is clear that the Respondent is not culpably responsible on the basis of any intentional wrongdoing and if she is to be responsible it must be on the basis of some theory of negligence or lack of due diligence. To show that the Respondent has failed to exercise the proper diligence or that she has been negligent within the meaning of this case, it must be shown that the Respondent has failed to exercise reasonable care and diligence in seeing that the licensed place of business is conducted in a lawful manner and that the employees in that premises do not violate the laws of the State of Florida. See G & B of Jacksonville, Inc. v. State of Florida, 371 So.2d 138 (Fla. 1st DCA 1979).

    
    

12. While the existence of liquor bottles as found on the licensed premises in February of 1979 and again on January 24, 1980, stand to alert the Respondent to instruct her employees to be conscious of this problem and the fact that alcoholic beverages not authorized by law to be sold on the licensed premises probably have been brought on the licensed premises, thereby calling for more diligence on the part of the licensee and her employees; it is neither negligence nor lack of reasonable care and diligence when Graham brought his unauthorized alcoholic beverages into the licensed premises, which were discovered by the beverage officers a short time thereafter. Although the unnamed employee allowed the beverages to be brought in, there is no showing that she knew what was in the box. Under these circumstances and in particular in dealing with a single violation, there has been insufficient showing to hold the licensee responsible for this alleged violation. Therefore, the Respondent is not guilty of a violation of Section 562.02, Florida Statutes, and may not be penalized under the provisions of Section 561.29, Florida Statutes.

RECOMMENDATION

It is RECOMMENDED that the Notice to Show Cause/Administrative Complaint accusation placed against the Respondent, Estelle Collins, d/b/a 21st Street Grocery, License No. 26-00766, Series 2-APS, be DISMISSED.

DONE AND ENTERED this 4th day of September, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1980.

COPIES FURNISHED:

William Hatch, Esquire

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

J. Kennedy Hutcheson, Esquire

341 East Bay Street Jacksonville, Florida 32202

Docket for Case No: 80-000504

Orders for Case No: 80-000504