STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re: Assesment of civil penalty ) against or the revocation )

or the suspension of the ) CASE NO. 75-1822

license of Annie Pearl ) DABT LICENSE NO. 23-26-36 Battle, t/a Drop Inn, Opa ) DABT CASE NO. 8-74-38-A Locka, Dade County, Florida )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayer, held a public hearing in the above styled cause on November 20, 1975 at Miami, Florida.

APPEARANCES

For Petitioner: Charles L. Curtis, Esquire

Department of Business Regulation Tallahassee, Florida

For Respondent: Robert Leen, Esquire

1700 North West 7th Street Miami, Florida

By Notice to Show Cause dated December 2, 1974, the Division of Beverage seeks to assess a civil penalty against or to revoke or suspend Beverage License 2-COP number 23-2636 issued to Annie Pearl Battle trading as Drop Inn, Opa Locka, Florida, on three allegations of violations of the Florida Beverage Act. The first charge alleges that on or about October 31, 1974 licensee had in her possession on the licensed premises fifteen bottles of liquor in violation of 562.02, Florida Statutes. The second charge alleges that on or about October 31, 1974 licensee, her agent, servant or employee, transported alcoholic beverages in his car in violation of s. 562.07 Florida Statutes. The third charge, alleging that licensee failed to have her husband, George Battle, fingerprinted, was withdrawn at the hearing.

Initially testimony was taken on licensee's motion to suppress evidence and both parties thereafter stipulated that this testimony be accepted in the proceedings against the license and licensee. The husband of the licensee, two Opa Locka policemen and one beverage agent gave testimony to be considered in the ancillary proceedings on the motion as well as the case in chief. Following the hearing on the motion an additional beverage agent, Mrs. Battle, her daughter, and the district license supervisor of the Division of Beverage testified.

Prior to inspecting some bars on Halloween night in 1974 two beverage agents met with the Opa Locka Police at the police station. Subsequently two beverage agents and two Opa Locka policemen entered the Drop Inn around 9:30

P.M. October 31, 1974 to inspect the premises. The agents identified themselves to the licensee and commenced their inspection. The evidence was conflicting whether or not the police were in uniform or otherwise identified themselves,

but no real issue was presented that they were not known to be and recognized by licensee and her husband as Opa Locka policemen.

George Battle, the husband of licensee, was sleeping on a bed in the kitchen area when the inspection started. He was awakened, sat on the edge of the bed a few minutes, and thereafter went outside to the vicinity of his car which was parked near the front door of the Drop Inn. Battle had consumed several beers during the day, but did not appear intoxicated when aroused.

Prior to Battle leaving the premises one of the agents found a paper bag containing fifteen 1/2 pint bottles of liquor leaning against the building just outside the back door. Licensee denied that the whiskey belonged to her, and when Battle was asked if the whiskey belonged to him he, too, denied ownership.

After going outside Battle sat on the curb for a few minutes before the police and agents came outside. One of the policemen asked Battle if he had any objection to their looking in his car for additional liquor. Battle testified that he went back into the building to get his keys and the police testified he merely took the car keys from his pocket and unlocked the trunk. In neither version was evidence presented that any force, threat or duress was used or that Battle did not voluntarily consent to the search. When the trunk was opened some three cases of 1/2 pint bottles of liquor were found therein. This liquor was inventoried and confiscated as were the fifteen bottles found just outside the back door.

It was to suppress the evidence consisting of whiskey found in the trunk of Battle's car that the Motion to Suppress was made. No warrant to conduct the search was obtained, nor was the search conducted incident to the arrest of Battle.

Licensee argued that Battle was groggy from sleep and drink when he opened the trunk, that he was not advised of his right to refuse to open the trunk, and that under the circumstances, no intelligent consent to the search was given.

However, as noted above, no threats, force, or duress was used and Battle had been awake approximately 10 minutes before being asked if the police and agents could look in his car. He was also advised that they were looking for liquor. The consent here given was a voluntary act of Battle and not a manifestation of consent produced by the coercion of governmental agents. Cockerman v. State 237 So.2d 32 (1970). Accordingly the Motion to Suppress the Evidence was denied.

Thereafter the inventory of the liquor was admitted into evidence as was the laboratory report showing that the alcoholic content of one bottle analyzed was 34.3 percent ethyl alcohol by volume. The bottles of whiskey removed from the car and found just outside the back door were all sealed bottles containing unbroken Federal Tax Stamps. The chain of custody was established to show that the liquor removed from the car and the licensed premises was the same that was present in the hearing room and was that inventoried in Exhibit 1. These bottles were labeled Seagrams gin, Smirnoff vodka, Dewars White Label scotch, etc. and all were in 1/2 pint unopened bottles. Additionally agent Bates opened one of the bottles, tasted same, and gave expert testimony that in his opinion the bottle contained an alcoholic beverage. The Federal Tax Stamps on bottles found in the bag on the premises were the same series of numbers as those found in the trunk of Battle's car.

George Battle has been married to the licensee for 18 years. He stops by the Drop Inn infrequently during the day to "sneak a couple of beers", but usually appears near closing time in case there is any trouble. He has no

financial interest in the Drop Inn, is not paid or employed by the licensee, and exercises no part in the running of the business. He is known by the Opa Locka police to sell whiskey from the trunk of his car. When the agents and the police arrived at the Drop Inn George Battle's car was parked just off the street (as were other cars in the vicinity) with the rear of the car facing the front door of the Drop Inn some 6 to 10 feet distant.

Licensee corroborated the testimony of Battle that he had no part in the running of the Drop Inn and performed no services in connection with the operation of the licensed premises. When denying that the whiskey found on the premises belonged to her, licensee stated that it might be her husband's.

Licensee's daughter gave improbable hearsay testimony to the effect that a sister was supposed to get liquor for a party that Halloween night from their father, George Battle, but arrived at the party without the liquor.

At the conclusion of the Beverage Division's case the Respondent moved for a dismissal of the charges on the grounds that the license of the Respondent had not been admitted into evidence. Since licensee was named in the Notice to Show Cause which also contained the number of her beverage license, received notice of and appeared at the hearing to defend against the charges made, the hearing officer allowed the Division to introduce into evidence the file copy of the license issued to Annie Pearl Battle. Dismissing the proceedings for failure to introduce the license would have required the licensee to appear at a subsequent hearing and bear the expense involved in such subsequent hearing, as well as the expense to which she was subjected as a result of the instant proceeding. At Administrative proceedings a dismissal of the charges on the grounds that jurisdiction over the Respondent was not shown would not preclude another hearing on the identical charges.

From the foregoing it is concluded that with respect to Charge 1, that licensee on October 31, 1974, had fifteen bottles of liquor on licensed premises in violation of s. 562.02 Florida Statutes, the licensee is guilty as charged.

The evidence was insufficient to establish that George Battle was the agent, employee, or servant of Annie Pearl Battle, the licensee herein. Therefore it is concluded that licensee is not guilty of violation of s. 562.07 Florida Statutes as alleged in Charge 2 by reason of George Battle transporting liquor in his car. It is therefore,

RECOMMENDED that the licensee, Annie Pearl Battle, trading as Drop Inn, Opa Locka, Florida, be assessed a civil penalty of $500.

DONE and ENTERED this 11th day of December, 1975 in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Docket for Case No: 75-001822

Orders for Case No: 75-001822