STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 85-1949

)

WILBERT BARRINGTON, )

d/b/a BARRINGTON INN, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held in this case in Tallahassee, Florida, on September 16, 1985. The issue is whether Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), should revoke, suspend or otherwise discipline the license of Respondent, Wilbert Barrington, d/b/a Barrington Inn (Respondent), for allegedly selling alcoholic beverages without a proper license in violation of Section 562.12, Florida Statutes (1983).

APPEARANCES

For Petitioner: Thomas A. Klein, Esquire

Staff Attorney

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

For Respondent: Ike Anderson, Esquire

Post Office Box 56 Monticello, Florida 32344sd

FINDINGS OF FACT

1. At all times pertinent, Respondent, Wilbert Barrington, d/b/a Barrington Inn (Respondent), has held license number 43- 19, Series 2-COP, for the sale of beer and wine at the

   Barrington Inn on State Road 59, north of Lloyd, Jefferson County, Florida. Respondent's license does not authorize him to sell gin.

   
   

2. December 2, 1984, Respondent sold two 200 ml. bottles of Seagram's Gin at his licensed premises, one to a patron and one to an undercover agent employed by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division).

   
   

3. Respondent has had three prior similar violations.

   
   

4. Respondent denied the allegations and testified at final hearing that the Division's undercover agent was not at his licensed premises on December 2, 1984, that he did not sell any gin on December 2, 1984, and that he does not sell gin or vodka at his licensed premises.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 561.29, Florida Statutes (1983), provides in pertinent part:

   
   

   1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:

      
      

      1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph

         shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by chapter 92 or the rules of evidence.

         
         

      2. Violation by the licensee or, if a corporation, by any officers thereof, of any laws of this state or any state or territory of the United States.

6. Section 562.12, Florida Statutes (1983), provides in pertinent part:

   
   

   1. It is unlawful for any person to sell alcoholic beverages without a license, and it is unlawful for any licensee to sell alcoholic beverages except as permitted by his license, or to sell such beverages in any manner except that permitted by his license and any licensee or other person who keeps or possesses alcoholic beverages not permitted to be sold without a license, with intent to sell or dispose of same unlawfully, or who keeps and maintains a place where alcoholic beverages are sold unlawfully, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 and s. 775.083.

      
      

7. The evidence proved that Respondent violated Section

562.12 on December 2, 1984, by selling gin at his licensed premise without a license, thereby violating Section 561.29(1)(a) and (b).

RECOMMENDATIONS

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended, in view of Respondent's prior violations and testimony at final hearing, that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking alcoholic beverage license number 43-19, Series 2-COP, held by Respondent, Wilbert Barrington, d/b/a Barrington Inn.

RECOMMENDED this 16th day of October, 1985, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings, The Oakland Building

309 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings this 16th day of October, 1985.

COPIES FURNISHED:

Thomas A. Klein Staff Attorney

Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301

Ike Anderson, Esq.

P. O. Box 56 Monticello, FL 32344

Richard B. Burroughs, Jr. Secretary

The Johns Building 725 S. Bronough Street Tallahassee, FL 32301

Howard M. Rasmussen Director

Division of Alcoholic Beverages and Tobacco

The Johns Building

725 S. Bronorugh Street Tallahassee, FL 32301

Docket for Case No: 85-001949

Orders for Case No: 85-001949