on April 6, 1976, in Room 103 of the Collins Building, Tallahassee, Florida.
For Petitioner: Charles F. Tunnicliff
For Respondent: Conrad C. Bishop, Jr.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
At all times relevant to these proceedings, Respondent, doing business as The Knight Out, was the holder of alcoholic beverage license number 72-79, series 1-COP. Prior to the hearing . . . in this cause, Respondent had turned in his license to the Petitioner.
To the rear of the licensed premises, Respondent operated a bottle club known as The Knight Club. The Knight Club is attached to and shares restroom facilities with The Knight Out.
On March 27, 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 on Sunday, January 26, 1975:
his employee, Vicki Lynn Williamson, at approximately 2:00 am., did sell at the licensed premises, an alcoholic beverage,
a can of Budweiser beer, to beverage officer
L. E. Williams during the time that the sale and consumption of alcoholic beverages is prohibited, in violation of City of Perry Ordinance 394 enacted pursuant to F.S. s. 562.14;
at approximately 4:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer
Williams in violation of City of Perry Ordinance 394;
at approximately 5:00 a.m., he sold at the licensed premises an alcoholic beverage, one can of Budweiser beer, to beverage officer
Williams in violation of City of Perry Ordinance 394;
at approximately 6:05 a.m., he refused to admit to the licensed premises beverage officer Jack Garrett, while in the performance of his official duties, contrary to F.S. s. 562.41; and
at approximately 6:05 a.m., he had in his possession, custody and control, at the licensed premises a partially full 4/5 quart of Smirnoff Vodka, an alcoholic beverage not authorized to be sold by him, in violation of F.S. s. 562.02.
Beverage officer L. E. Williams went to The Knight Out the weekend of January 24, 1975, in order to conduct an undercover investigation of the licensed premises. He observed the Respondent, between 11:30 p.m. and 12:00
a.m. on January 24th, remove four cases of beer from The Knight Out and place them into a small room in The Knight Club portion of the premises. At about 1:00 a.m. on January 25th, Williams paid a $2.00 cover charge, entered The Knight Club and remained there until 6:00 a.m.
On Saturday night, January 25th, beverage officer Williams again went to The Knight Out and, at about 11:30 p.m., again observed Respondent moving five cases of beer from The Knight Out to the rear portion, The Knight Club.
Williams entered The Knight Club during the early hours of January 26, 1975, carrying a can of beer with him. He left at approximately 2:30 a.m., met with other beverage agents, and returned to The Knight Club at about 3:45 a.m., paying the cover charge of $2.00.
At 4:00 a.m. and again at 5:00 a.m. on January 26, 1975, Williams purchased from Respondent Poppell cans of Budweiser beer at seventy-five cents per can. Williams retained control of the two beer cans and at about 6:30 a.m. he tagged them as evidence. They were admitted into evidence at the hearing as Exhibits 4 and 5.
At approximately 6:05 a.m. on January 26, 1975, beverage officer Jack Garrett, along with several other law enforcement agents, knocked on the front door of The Knight Club seeking entrance thereto. Respondent told Garrett to get in front of the peephole on the door so that he could see who was there.
Garrett, who had known Respondent for some fifteen years, testified that he showed his identification card to Respondent through the peephole, whereupon Respondent replied that he would not let him in. Beverage officer T. A. Hicks, present with Garrett at the time, confirmed these events. Respondent and two other witnesses present at the scene testified that Respondent asked the persons at the front door to identify themselves, but that no response was received.
Shortly thereafter, Officer Garrett, along with other law enforcement officers, went around to the other side of The Knight Club and entered, without knocking, the ladies rest room which led to the inside of The Knight Club. Once inside, they met Respondent leaving a small room with a handful of liquor bottles. One such bottle was seized - - a partially filled bottle of Smirnoff Vodka - - and was received into evidence at the hearing as Exhibit 6.
Shirrell Woodalf testified that she had come to The Knight Out on the morning in question with another couple. When the other couple left, they gave her their bottle of Smirnoff Vodka. She then gave the bottle to Respondent to keep for her in his office. Woodalf identified Exhibit 6 as being the same bottle as that left with her and given to Respondent.
Four witnesses who often frequented The Knight Club testified that patrons of the Club always brought their own beer or other alcoholic beverages into the Club. Respondent would cool their beer for them and keep their bottles in his office if they so desired. Respondent sometimes charged a small fee for cooling the beer and he sold setups for mixed drinks. These four witnesses never saw Respondent sell either beer or other alcoholic beverages in The Knight Club.
CONCLUSIONS OF LAW
The undersigned Hearing Officer has previously considered and disposed of Respondent's contention that the issues in this cause are moot on the grounds that Respondent's license has expired and/or been turned in prior to the hearing. By order dated February 24, 1976, attached hereto, it was found that the license in question not having been cancelled, the issues raised in this matter are not moot.
Summarizing the five charges against Respondent, he has been accused of three violations of F.S. s. 562.14 and the City of Perry Ordinance No. 394 prohibiting the sale of alcoholic beverages between the hours of 1:00 a.m. and 7:00 a.m. in that he or his employee sold beer to a beverage officer at approximately 2:00 a.m., 4:00 a.m. and 5:00 a.m. He has also been charged with violations of F.S. s. 562.41 in refusing to admit a beverage officer to the licensed premises and of F.S. s. 562.02 in possessing an alcoholic beverage not authorized to be sold by him. Based upon these grounds, the Division of Beverage seeks to revoke his alcoholic beverage license.
Respondent's defenses to these charges include specific denials of each offense charged, that the property upon which the offenses allegedly occurred were not a part of the licensed premises and that the Petitioner failed to introduce into evidence a copy of City of Perry Ordinance No. 394.
As requested by Petitioner, the undersigned takes official notice of Perry Ordinance No. 394. The undersigned also concludes that the term "licensed premises", as defined in F.S. s. 561.01(11), is broad enough to include the property upon which the offenses charged allegedly occurred - The Knight Club.
Revocation of an alcoholic beverage license is a serious and drastic measure. Therefore the evidence upon which revocation is based should be reasonably conclusive as to guilt, and the charges must be proven as set forth in the notice of revocation. De Joris v. State Beverage Department, 145 So.2d 562 (Fla. App. 3rd, 1962).
In this case, the evidence is not reasonably conclusive as to Respondent's guilt of charge (1) sale of beer at 2:00 am., or charge (5), possession of alcoholic beverages not authorized to be sold by Respondent.
Other than Mr. Williams' testimony that during the course of the morning in question he arrested Vicki Lynn Williamson for selling alcoholic beverages after legal hours, there is absolutely no evidence in the record to support the charge that Ms. Williamson sold to Williams a can of beer at approximately 2:00 a.m.
Mr. Williams' relation of the events of the morning in question was that he purchased a can of beer before The Knight Out closed at midnight, carried a can of beer back to The Knight Club, left The Knight Club at about 2:30 a.m. and returned at 3:45 a.m., purchasing two cans of beer at 4:00 a.m. and 5:00 a.m.
There is no testimony or evidence to substantiate the charge that Ms. Williamson sold Williams a can of beer during the time that the sale of alcoholic beverages was prohibited. While the evidence as to charge (5) shows that Respondent had in his hand a partially filled bottle of Smirnoff Vodka when the beverage officers entered the premises, there was uncontradicted evidence that this bottle belonged to Sherrill Woodalf, a patron of the bottle club, and had been entrusted to Respondent by her for her use only. The Knight Club was a bottle club, to which patrons brought their own alcoholic beverages and often left them with Respondent for purposes of convenience, safekeeping or cooling. There was no evidence that any drinks were served from this bottle to any person other than its owner - Ms. Woodalf. The obvious intent of F.S. s. 562.02 is to prohibit the sale by a licensee of alcoholic beverages not authorized to be sold under the license issued to him. The section creates a prima facie presumption that possession is evidence of sale. Here, such presumption was rebutted by the uncontradicted evidence that the partially filled bottle of Vodka belonged to and was used only by its owner. The charge of violating s. 562.02 was therefore not proven by competent, substantial evidence.
As to the remaining three charges, there is competent, substantial and conclusive evidence of Respondent's guilt. Beverage officer Williams testified that he purchased two cans of Budweiser beer from Respondent at approximately 4:00 a.m. and 5:00 a.m. F.S. s. 562.14(1) prohibits the sale of alcoholic beverages between the hours of midnight and 7:00 a.m., except as otherwise provided by county or municipal ordinance. Ordinance No. 394 of the City of Perry extends the time to 1:00 a.m. Having sold the beer to Williams at 4:00
a.m. and 5:00 a.m., Respondent is clearly guilty of violating s. 562.14.
Florida Statutes s. 562.41 makes it unlawful for a licensee to refuse to admit division of beverage officers or other law enforcement officers to the licensed premises. Here, the evidence clearly shows that beverage and law enforcement officers knocked on the front door of The Knight Club, identified themselves and were refused admittance. While Respondent and two other witnesses testified that they did not see or hear said officers after the knocking, it is unreasonable to assume that the officers would first knock and then run away. Having refused to admit beverage and law enforcement officers to the premises, Respondent is guilty of violating F.S. s. 562.41.
In conclusion, it is found that the evidence is reasonably conclusive as to violations of F.S. ss. 562.14 and 562.41, in that Respondent did sell alcoholic beverages during the prohibited hours and did refuse admittance of
