STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2636

)

JIM SMITH, D/B/A SHORTY'S )

COUNTRY CLUB, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Quincy, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter, on November 18, 1981.

APPEARANCES

For Petitioner: Janice G. Scott, Staff Attorney

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

For Respondent: No Appearance

By Notice to Show Cause, Petitioner alleged the following:

1. On or about the 12th of June 1981,

   you, Jim Smith, did unlawfully posses [sic] on your licensed premises, a controlled substance to wit: cannabis - less than 20 grams, contrary to F.S. 893.13 to wit: F.S. 561.29(1)(a)

   
   

2. On or about the 12th of June 1981

   you, Jim Smith, did unlawfully possess, on your license [sic] premises, a controlled substance to wit: Tetrahydrocannabolinols (hashish) contrary to F.S. 893.13 to wit: F.S. 561.29(1)(a).

   
   

3. On or about the 12th of June 1981

   you, Jim Smith, did unlawfully possess, on your licensed premises, a controlled substance to wit: Diazapam (Valium) contrary to F.S. 893.13 to wit: F.S. 561.29(1)(a).

4. On or about the 12th of June 1981 you Jim Smith, did unlawfully possess

beverages not permitted to be sold by your license to wit: 48 Seagram's Gin 200 ml, in a vehicle with a vehicle permit (#659) contrary to Beverage Rule 7A-3.26, FS 562.02.

At the outset of hearing, Petitioner voluntarily dismissed count two of the Notice to Show Cause. Subsequent to hearing, Petitioner filed proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they have been rejected as irrelevant or unsupported by the evidence.

FINDINGS OF FACT

1. Respondent holds alcoholic beverage license number 30-230, series 1- COP, which authorizes the sale of beer for consumption on premises. The licensed facility, known as Shorty's Country Club, is located in rural Gadsden County.

   
   

2. Based on an undercover investigation, a warrant was obtained on June 4, 1981, to search Respondent's licensed premises and curtilage (Petitioner's Ex. 1). The search warrant was executed on June 12, 1981, by Beverage Officer Frederick Miller and Sheriff's Deputies B. Shelfer and T. Haire. Officer Miller served the warrant on Respondent, and read and explained it to him.

   
   

3. The premises search disclosed material later confirmed by the Florida Department of Law Enforcement (FDLE) laboratory to be 8.7 grams of cannabis (Item 1, Petitioner's Ex. 2). At the time of the cannabis seizure, Respondent stated to Officer Miller that the cannabis was his, to be smoked to help his eyesight, but offered no prescription or permit for cannabis possession.

   
   

4. The premises search also produced three foil packets, each holding five

   10 mg. tablets, later confirmed by the FDLE laboratory to contain Diazepam (Valium)(Item 3, Petitioner's Ex. 2). At the time of seizure, Respondent told Officer Miller that the Valium belonged to his roommate's brother, but offered nothing to support this statement.

   
   

5. A search of the Respondent's vehicle, located adjacent to the licensed premises, revealed a case (forty-eight 200 ml. bottles) of Seagrams Gin. Vehicle permit number 659, issued by the Petitioner to Respondent for transporting the alcoholic beverages to be sold on the licensed premises, was found on the dashboard of this vehicle. Respondent admitted possession of the gin, but claimed he did not intend to sell it on the licensed premises.

   
   

   CONCLUSIONS OF LAW

   
   

6. Subsection 561.29(1)(a), Florida Statutes, grants authority to the Division of Alcoholic Beverages and Tobacco to revoke or suspend a beverage license for violation by the licensee of any Florida law. Section 893.13, Florida Statutes, prohibits possession or delivery of controlled substances. Cannabis is a controlled substance listed in Subsection 893.03(1)(c)3 and Diazepam is a controlled substance listed in Subsection 893.03(4)(h), Florida Statutes. The evidence established that the above named controlled substances were found on the licensed premises, in the unlawful possession of Respondent, as charged in counts one and three of the Notice to Show Cause.

7. Section 562.02, Florida Statutes, provides:

   
   

   It is unlawful for a licensee under the Beverage Law or his agent 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.

   
   

8. Since the prohibited beverages were in Respondent's possession at his place of business, he is guilty of violating the above provision as charged in count four of the Notice to Show Cause.

   
   

9. Subsection 561.29(1)(e), Florida Statutes, provides that the Division may suspend or revoke the license of a licensee upon sufficient cause appearing that he has violated any rule of the Division. Rule 7A-3.26, Florida Administrative Code, provides:

   
   

   A licensee, by acceptance of a vehicle permit, agrees that during the time such permit is in effect, the vehicle to which such permit was issued shall always be subject to inspection and search without a search warrant, by authorized employees of the Division, sheriffs, deputy sheriffs and police officers

   
   

   A vehicle permit authorizes a licensee to transport only such beverages that he is permitted to sell under his license.

   
   

10. Permit number 659 did not allow Respondent to transport gin, since his alcoholic beverage license 38-230, 1-COP authorized only the sale of beer. 1/ The presence of the gin and the vehicle permit in Respondent's vehicle is prima facie evidence of the unauthorized use of this permit in violation of Rule 7A- 3.26, Florida Administrative Code, as charged in count four of the Notice to Show Cause.

    
    

11. Respondent did not deny transporting the gin in the permitted vehicle when confronted at the time of discovery by Officer Miller, nor did he appear at the duly scheduled hearing. Therefore, Petitioner's prima facie evidence of the rule violation is conclusive.

RECOMMENDATION

In consideration of the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That Respondent be found guilty of charges contained in counts one, two and four of the Notice to Show Cause. It is further

RECOMMENDED:

That Respondent's alcoholic beverage license, number 30-230 be REVOKED.

DONE AND ENTERED this 8th day of December, 1981, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1981.

ENDNOTE

1/ See Rule 7A-1.13, Florida Administrative Code.

COPIES FURNISHED:

Janice G. Scott, Esquire Staff Attorney

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32381

Mr. Jim Smith

c/o Shorty's Country Club Off Gadsden County Road 159 Dogtown Area

Quincy, Florida 32351

Docket for Case No: 81-002636

Orders for Case No: 81-002636