STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-2014

)

MARTHA L. WASHINGTON t/a )

MARTHA'S BEER LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held at 9:30 A.M., on January 23, 1976, at 1520 Gary Road, Lakeland, Florida, before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William Hatch, Esquire

Department of Business Regulation 725 Bronough Street

Tallahassee, Florida 32304

For Respondent: Martha L. Washington

1085 Palmetto Street Bartow, Florida

ISSUE

Whether or not on or about August 9, 1975, Martha L. Washington, a licensed vendor did have in her place of business, one (1) four-fifths brokenseal bottle of Barcardi Rum, Light, not authorized by law to be sold under her license, contrary to Section 562.02, Florida Statutes.

FINDING OF FACT

1. In the beginning of the hearing a composite Exhibit 1 was introduced by the Petitioner, this exhibit being a notice to show cause and notice of hearing, admitted without objection. It was also stipulated that the license in question is license number 63-158, I-COP for Martha L. Washington, t/a Martha's Beer Lounge, 1085 Palmetto Street, Bartow, Florida.

   
   

2. Sargent Wilber C. Glass of the Polk County Sheriff's Office took the stand. He stated that on August 9, 1975, that he entered the licensed premises with Agent W. Daniel Durrence of the Division of Beverage, around 11:00 A.M. They searched behind the bar and revealed a partially filled bottle of Barcardi Light Rum. This bottle was in the service area, in plain view, and the seal was broken and the bottle was less than half full. The bottle was turned over to

   Officer Durrence and became Petitioner's Exhibit 2 in the course of the hearing and was later admitted without objection. The witness testified the reason that he was in the area of the licensed premises was to assist the service of a warrant by Deputy Sheriff Cook of the Polk County Sheriff's Office.

   
   

3. Agent W. Daniel Durrence of the Division of Beverage was sworn in and gave testimony. He said that the search warrant which was being served, was a warrant to search for tax paid whiskey in Roy's Dinette, which is adjacent to the licensed premises of the Respondent. After leaving Roy's Dinette in the company of a Mr. Washington, they went to the licensed premises of the Respondent and Mr. Washington opened the door. To do this they had to go through a hallway which connects Martha's Beer Lounge and Roy's Dinette. While in the licensed premises of the Respondent for purposes of inspecting under the beverage laws, Petitioner's Exhibit 2 was located in the bar area and given to the witness by Sargent Wilber C. Glass.

   
   

4. The witness testified that the license in question is a I-COP license which allows beer consumption only, while drinking on the premises. The witness said he took custody of Petitioner's Exhibit 2 and gave a receipt to Mr. Washington. An on the spot check by the Beverage Agent, revealed to him that the substance in the Exhibit 2 appeared to be Barcardi Rum, based upon his prior experience in the identification of spiritous liquors.

   
   

5. The Respondent took the stand in her behalf and indicated that she was on vacation when the evidence in question was found. She doesn't know how the Petitioner's Exhibit 2 got behind the bar, because she said she didn't put it there and to her knowledge her place of business was under lock and key.

   
   

6. After examining the comments of the Respondent and the testimony of the witnesses for the Petitioner, it is determined that there was an unauthorized beverage on the premises on the date in question. This fact has been established through the testimony of the witnesses for the Petitioner and is unrefuted by the testimony of the license holder.

   
   

   CONCLUSIONS OF LAW

   
   

7. It is concluded as a matter of law that on or about August 9, 1975, Martha L. Washington, a licensed vendor, did have in her place of business, one

(1) four-fifths brokenseal bottle of Barcardi Rum, Light, not authorized by law to be sold under her license, contrary to Section 562.02, Florida Statutes.

RECOMMENDATION

It is recommended that a civil penalty in the amount of $200.00 be imposed against the license of Martha L. Washington for the violation established through the allegation of the subject Administrative Complaint.

DONE and ENTERED this 17th day of February, 1976, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

William Hatch, Esquire

Department of Business Regulation 725 Bronough Street

Tallahassee, Florida 32304

Martha L. Washington 1085 Palmetto Street Bartow, Florida

Docket for Case No: 75-002014

Orders for Case No: 75-002014