STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1741

) RALPH W. WHITE, d/b/a POSSUM ) TROT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings at 11:15

1. on October 23, 1976, in Room 216 of the Johns Building, 725 South Bronough Street, Tallahassee, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Charles F. Tunnicliff

   Department of Business Regulation 725 South Bronough Street

   Room 210, Johns Building Tallahassee, Florida 32304

   
   

   For Respondent: No appearance for the licensee-respondent FINDING OF FACT

   1. At all time relevant to these proceedings, respondent was the holder of alcoholic beverage license number 42-55, Series I-COP.

      
      

   2. In August of 1975, respondent was served with a "notice to show cause why beverage license should not have civil penalty assessed against it or be suspended or revoked" on the grounds that he did, on or about May 30, 1975:

      
      

      1. keep and maintain a gambling house for the purpose of playing dice for money on the licensed premised, in violation of

         F.S. s 849.01; and/or

      2. have in his possession, or allow someone else to have in their possession, on the licensed premises, alcoholic beverages, to wit: 1 partially filled 4/5th bottle of Virginia Gentlemen Whiskey, in violation of F.S. 562.02.

         
         

   3. At approximately 11:30 P.M. on May 30, 1975, two beverage officers and a Jackson County Deputy Sheriff went to the licensed premises, known as the

      Possum Trot, to investigate a complaint of alleged gambling on the premises.

      The three were positioned outside a door leading to the pool room area when they heard voices inside stating "I'm looking for a five. Give me a five." The front door to the premises was locked.

      
      

   4. When the officers entered the pool room area, they observed five men, including the license holder/respondent herein, standing around a table containing three pair of dice and $100.00 in denominations of fives, ten and twenties. Located behind the back board of the table was a 4/5th bottle of Virginia Gentlemen Whiskey approximately one-half filled. The dice, money and bottle of whiskey were taken and inventoried by the beverage officers and were introduced into evidence at the hearing, along with photographs of the premises taken at the time of respondent's arrest.

      
      

   5. Respondent was arrested and was advised that the administrative charges described in paragraph two above would be filed against him.

      
      

   6. On June 6, 1975, respondent or his wife turned in his license to petitioner's district office in Marianna, Florida.

      
      

      CONCLUSIONS OF LAW

      
      

   7. All of the incidents which led to administrative charges being placed against respondent occurred while respondent was duly licensed by petitioner. While there was evidence that respondent's license had been "turned in" before the notice to show cause was issued, this does not amount to a cancellation of the license in question. Nor is this cause rendered moot by the fact that respondent's annual license expired on September 30th. A licensee is entitled to a renewal of his annual license from year to year as a matter of course by following certain procedural requirements on or before September 30th of each year. F.S. s 561.27. Thereafter, a delinquent application for approval may be submitted within the following sixty days by adhering to the procedures outlined in F.S. s 561.27(2). Thus, at the time of the hearing in this cause, had administrative charges not been pending against him, respondent could have renewed his license. It is only when a license is not renewed within sixty days of September 30th that a cancellation comes into effect. Even then, there are exceptions to such a cancellation, and one is when the license is involved in litigation. Before a license may be revoked or suspended, the procedural safeguards of F.S. Ch. 120 and s 561.29(3) must be afforded. The instant proceeding is the means of affording such safeguards; therefore, the subject license is "involved in litigation" within the meaning of s 561.27(2), the license has not been cancelled and the issues herein are not moot.

      
      

   8. Respondent is charged with violating F.S. ss849.01 and 562.02. Section 849.01 prohibits the keeping or maintaining of a place for gambling or permitting gambling in a place under one's control. The evidence in this case

      is clearly sufficient to illustrate respondent's violation of this statute. The officers heard gambling language being used by those inside the room. When they entered the room, they discovered three pair of dice as well as a quantity of cash lying on the table. Respondent, the license-holder, was in the room where these activities were occurring. Thus, the evidence is sufficient to show that respondent was keeping a place for gambling and permitting gambling on his premises.

      
      

   9. Respondent is also charged with a violation of F.S. s 562.02, which prohibits a licensee from having in his possession, or permitting anyone else to have in his Possession, at or in the licensee's place of business alcoholic

      beverages not authorized by law to be sold by the licensee. Respondent is the holder of a series I-COP license, which permits the consumption of beer only on the premises. The evidence is sufficient to show that respondent had in his possession, or permitted someone else to have in his posession, on the licensed premises an alcoholic beverage other than beer; to wit: whiskey, which respondent is not authorized to sell. Hence, respondent is guilty of violating s 562.02 of the Florida Statutes.

      
      

   10. Pursuant to s 561.29(1), the Division of Beverage has authority to revoke or suspend the license of any person where it is determined that the licensee has violated any of the laws of this State. It being found that respondent has violated two separate provisions of the Florida Statutes, it is concluded that the petitioner has the authority to suspend or revoke respondent's alcoholic beverage license.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's license number 42-55 be revoked.

Respectfully submitted and entered this 27th day of February, 1976, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. C.A. Nuzum Director

Division of Beverage

210 Johns Building Tallahassee, Florida

Mr. Charles F. Tunnicliff Department of Business Regulation 725 S. Bronough Street

Room 210, Johns Building Tallahassee, Florida 32304

Mr. White

Route 2, Box 13B Marianna, Florida 32446

Docket for Case No: 75-001741

Orders for Case No: 75-001741