STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2655

)

IRENE B. WRIGHT, d/b/a )

21st STREET GAME ROOM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on October 20, 1983, in Jacksonville, Florida.

APPEARANCES

For Petitioner: James N. Watson, Jr., Esquire

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

For Respondent: Irene B. Wright, pro se

1655 East 21st Street Jacksonville, Florida 32206

BACKGROUND

By Notice to Show Cause issued on June 24, 1983, petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, has alleged that respondent, Irene B. Wright, d/b/a 21st Street Game Room, was guilty of having unlawfully sold alcoholic beverages in a manner not permitted by her beverage license in violation of Subsection 562.12(1), Florida Statutes.

On August 10, 1983, respondent requested a formal hearing to contest the allegations pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred by petitioner to the Division of Administrative Hearings on August 18, 1983, with a request that a Hearing Officer be assigned to conduct a formal hearing.

By notice of hearing dated September 6, 1983, the matter was scheduled for a final hearing on October 20, 1983, in Jacksonville, Florida. At the final hearing, petitioner presented the testimony of David Wilder, beverage officer, and John T. Lachman, beverage officer, and offered petitioner's exhibits 1 and 2; both were received in evidence. Respondent testified on her own behalf and presented the testimony of James A. Richardson, Sr., her manager and accountant.

The issue herein is whether respondent is guilty Of the allegations in the Notice to Show Cause and should have her beverage license disciplined.

Based upon all the evidence the following Findings of Fact are determined: FINDINGS OF FACT

1. Respondent, Irene B. Wright, d/b/a 21st Street Game Room, is the holder of license number 26-1530, license series 2-APS, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). The license authorizes the sale of beer and wine by package sale only. No consumption of alcohol is permitted on the premises.

   
   

2. At approximately 1:45 p.m. on or about May 18, 1983, beverage officers Wilder and Lachman entered the licensed premises of respondent for the purpose of making a routine inspection.

   
   

3. The beverage officers observed two patrons drinking beer from open containers. One patron (named Garvin) was seated at the bar consuming beer from a 16-ounce can of Schlitz Malt Liquor. A second patron was pouring beer from a 32-ounce Old Milwaukee beer bottle into a cup of ice and drinking the same.

   
   

4. Wright did not deny that the patrons were drinking beer on the premises but stated that one had brought the bottle of beer onto the premises without her knowledge while the other had been sold the can of beer to go and had opened it without her permission.

   
   

5. The business is principally a game room with video machines and a pool table with beer and wine sales to go. Wright indicated that it is difficult to keep patrons from bringing in open containers of alcoholic beverages, and that patrons are often hostile when told they cannot drink on the premises. She is now seeking a license that will authorize such drinking at her business.

   
   

6. Prior to May 18, 1983, there were no signs on the premises advising customers that consumption of alcoholic beverages on the licensed premises was prohibited. Wright now has placed such signs on the premises.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

8. Subsection 562.12(1), Florida Statutes, provides in part as follows:

   
   

   1. . . . it is unlawful for any licensee to sell alcoholic beverages

      except as permitted by his license . . . .

      
      

9. The evidence reveals that respondent has violated the foregoing statute, although not intentionally, by selling a beer to a customer who subsequently drank the same on her licensed premises, and that disciplinary action is warranted.

   
   

10. Given the fact that the single violation herein was not shown to be intentional, and that respondent has now taken visible steps to inform her

customers that consumption on the premises is prohibited, a $100 fine is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is Recommended that respondent be found guilty of violating Subsection

562.12(1), Florida Statutes, and that she be given a $100 fine to be paid within

fifteen days after the entry of a final order in this cause.

DONE and RECOMMENDED this 28th day of October, 1983, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER, 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 28th day of October, 1983.

COPIES FURNISHED:

James N. Watson, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Irene B. Wright

1655 East 21st Street Jacksonville, Florida 32206

Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-002655

Orders for Case No: 83-002655