STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0328

) FRANK D. and ESTELLA S. BYERS, ) t/a BIG B RESTAURANT, )

)

Respondents. )

)

RECOMMENDED ORDER

Consistent with the written notice to the parties, sent on February 8, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Jacksonville, Florida, on April 6, 1984. The issue for consideration at the hearing was whether the Respondent's alcoholic beverage license should be disciplined because of the misconduct alleged in the Notice to Show Cause.

APPEARANCES

For Petitioner: Louise E. Hargrett, Esquire

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

For Respondent: Frank D. Byers, pro se

Estella S. Byers, pro se 5570 Avenue B

Jacksonville, Florida 32209 BACKGROUND INFORMATION

On April 6, 1983, the Director, Division of Alcoholic Beverages and Tobacco, signed a Notice to Show Cause which alleges that Respondents had sold an alcoholic beverage not permitted by their license; had permitted a patron to consume alcoholic beverages on the licensed premises in a manner not permitted by the license; and had possessed on the licensed premises, with intent to sell it with an improper license, a bottle of alcoholic beverage the sale of which would not be permitted under the license, all in violation of various sections of Chapter 562, Florida Statutes (1981). The Notice to Show Cause was sent to Respondents by certified mail on April 20, 1983, and was received by Respondent Estella Byers on April 22, 1983.

On May 15, 1983, Respondent Estella Byers, by letter, requested a hearing on the matter; and this request was received in the Division of Alcoholic Beverages and Tobacco office on May 19, 1983. It was not until by letter dated January 23, 1984, however, that the file was sent to the Division of Administrative Hearings, being received by this office on January 29, 1984. No explanation was given for the more than eight-month delay between the receipt by Petitioner of the request for hearing and the forwarding of the file to the Division of Administrative Hearings for that purpose.

At the hearing, Petitioner presented the testimony of Thomas L. Stout, its Jacksonville district supervisor; and Wendell M. Reeves, a beverage investigator in the Jacksonville office. Petitioner introduced Petitioner's Exhibits 1 and 2, a small bottle of Fleishman's Gin and a small bottle of Schenley Extra Dry Gin, but after examination of the evidence by the Hearing Officer, the exhibits were returned to the custody of Petitioner. Respondent's, Frank D. and Estella

1. Byers, both testified in their own behalf.

   
   

   FINDINGS OF FACT

   
   

   1. At all times pertinent to the issues herein, alcoholic beverage license No. 26-01841, Series No. 2-APS, was issued to Respondents, Frank D. and Estella

      S. Ryers, for their establishment known as the Big B Restaurant, located at 5570 Avenue B, Jacksonville, Florida. A 2-APS license permits the package sale only of beer and wine. It does not permit the consumption on the premises of beer, wine, or liquor.

      
      

   2. On March 27, 1983, Investigator Wendell M. Reeves conducted an undercover operation directed against the Big B Restaurant predicated upon reports received by Petitioner that Respondents were conducting sales of alcoholic beverages not permitted by the license at the licensed premises. In furtherance of that operation, Reeves utilized another beverage agent, Van Young, in an undercover capacity to make a controlled buy of an improperly sold substance from the licensees.

      
      

   3. Prior to sending Young into the licensed premises, Reeves searched Young to ensure that he, Young, had no alcoholic beverage or money in his possession. Satisfying himself that that was the case, he gave Young $15 in

      U.S. currency and sent him into the licensed premises to make the buy.

      
      

   4. Young entered the Big B Restaurant at 1:00 p.m. and came out 17 minutes later. When he came out of the licensed premises, Young came over to where Reeves was waiting and turned over to him a sealed 200 ml bottle of Fleishman's Gin.

      
      

   5. Young told Reeves that he had purchased the gin in the licensed premises from a black male whose description matched that of Respondent Frank D. Byers which is contained on Respondent's application for license. Respondent Frank Byers denies making the sale. On balance, however, there is little doubt it was Respondent who made the sale, especially in light of the fact that this same licensee was issued a letter of warning by the Division of Alcoholic Beverages and Tobacco in October 1981 for possession on the premises of an alcoholic beverage not permitted to be sold under the license. Young also stated that he purchased a second bottle which he consumed on the premises with another black male. However, this evidence was in the form of Reeves' report of

      what was told him by Young. As such, it is clearly hearsay and can be used only to corroborate or explain other admissible evidence. Therefore, as to the allegation regarding the consumption of the gin on the premises, since it is the only evidence of that offense, it cannot be used to support a finding of fact on that allegation. It may, however, be used to explain how Young got the bottle with which he was seen by Reeves to come out of the licensed premises.

      
      

   6. Several days later, on March 30, 1983, Reeves again entered the licensed premises, where he told Respondent Estella Byers he was there to inspect the site. She opened the cooler for him and he inspected the beer inside and the cigarettes. While he was doing that, however, he noticed her take a cloth towel and drape it over something behind the bar. He went over to it, removed the towel, and found that it covered a bottle of Schenley's gin. Mrs. Byers immediately said she thought it was her husband's, Respondent Frank Byers, but another individual present at the time, Sharon Thomas, said she had taken it from her brother, who was drunk, and had put it there. Again, as to Ms. Thomas' comments, they, too, are hearsay and can only serve here to explain or corroborate other admissible evidence. In any case, after Ms. Thomas made her comment, she was immediately contradicted by Respondent Estella Byers, who again indicated she thought the bottle was her husband's. In any case, at the hearing, Respondent Estella Byers contended she did not know it was there.

      
      

   7. On balance, Mr. Reeves' testimony that she covered it with a towel while he was inspecting and the evidence of the prior warning for an identical offense tend to indicate she did know it was there and that it was unlawful for it to be there. There is, however, no evidence to establish sufficiently the reason for its being there.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.

      
      

   9. In the first allegation, Petitioner contends that Respondent unlawfully sold an alcoholic beverage not permitted to be sold by the license in violation of Section 562.12(1), Florida Statutes (1981), which makes it unlawful for any licensee to, inter alia, "sell alcoholic beverages except as permitted by his license.

      
      

   10. The competent evidence of record here shows that the licensees had a license which permitted only the package sale of beer and wine. The testimony of Mr. Reeves clearly shows that his undercover agent purchased a bottle of gin in the licensed premises from an individual identified as the licensee Frank Byers, as alleged, in violation of the statute.

       
       

   11. As to the second allegation, relating to the unlawful consumption on the premises by Agent Young, the only evidence of that offense is the hearsay evidence of Young, which, under the rules regarding the conduct of administrative hearings, cannot serve as the sole evidentiary basis for a finding of fact. Since there is no evidence of this alleged offense other than Young's hearsay report to Reeves, it must be concluded this allegation has not been proven.

   12. Petitioner also asserts that Respondent Estella Byers unlawfully possessed an alcoholic beverage (gin) on the licensed premises which was not permitted to be sold under the license (Allegation 4), with the intent to sell it (Allegation 3), in violation of Section 562.02, Florida Statutes (1981) (Allegation 4), and Section 562.12, Florida Statutes (1981) (Allegation 3).

   13. Section 562.02, Florida Statutes (1981), states: 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.

       
       

       Clearly the evidence that Mrs. Byers attempted to conceal the gin bottle from Mr. Reeves, who found it and identified it on the licensed premises, establishes this violation (Allegation 4).

       
       

   14. There is a substantial difference, however, in the case of Allegation 3, which requires an "intent to sell." It is clear that Petitioner has simply not established, by clear and convincing evidence, that Respondent intended to sell the bottle Reeves found behind the bar, even considering the inferences and presumptions permitted by the law. It is as likely the bottle was there for Respondent's use as it was there for sale. While the presence is, of itself, not permitted, that offense has not been shown to be compounded by an intent to sell.

       
       

   15. The Petitioner has submitted a Proposed Recommended Order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDED ACTION

Based on the foregoing, therefore, it is RECOMMENDED THAT:

Respondents be fined $250 and their license be suspended for six (6) months.

RECOMMENDED this 9th day of May 1984, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 9th day of May 1984.

COPIES FURNISHED:

Louise E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Mr. Frank D. Byers Mrs. Estella S. Byers 5570 Avenue B

Jacksonville, Florida 32209

Mr. Gary R. Rutledge Secretary

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

Mr. Howard M. Rasmussen

Director, Division of Alcoholic Beverages and Tobacco

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

Docket for Case No: 84-000328

Orders for Case No: 84-000328