STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE J. CHANDLER, )

)

Petitioner, )

)

vs. ) CASE NO. 76-859

)

DIVISION OF BEVERAGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on May 19, 1976 at Tallahassee, Florida.

APPEARANCES

For Petitioner: Willie J. Chandler

Route 2, Box 87 Havana, Florida

For Respondent: Charles F. Tunnicliff, Esquire Staff Counsel

The Johns Building

725 South Bronough Street Tallahassee, Florida 32302

By this Petition, Willie J. Chandler, Petitioner, requests an Administrative Hearing to determine the validity of Respondent's denial of his application for a beverage license. By letter dated March 1, 1976, Chandler was advised that his application had been denied because he had been convicted of beverage law violations in the past five years. Three exhibits were admitted into evidence and Petitioner testified in his own behalf.

FINDINGS OF FACT

1. Exhibit 1, a certified copy of the county court record of Gadsden County, Florida, shows that on August 4, 1972 Petitioner was charged with unlawfully selling beer without license, posted bond of $250, and on the date set for trial, did not appear and the bond was ordered forfeited.

   
   

2. Exhibit 2, a certified copy of the commitment order by the circuit court of Gadsden County shows that on November 26, 1973 Willie Chandler was sentenced to the county jail for nine months on an adjudication of guilty of receiving stolen property.

   
   

3. Exhibit 3, a certified copy of the county court of Gadsden County minutes book, shows that Willie Jasper Chandler was, on 8-16-71, found guilty of

   unlawfully selling beer "between the hours of 12:00 midnight Saturday and 7:00

   A.M. Monday".

   
   

4. Testifying in his own behalf Petitioner acknowledged guilt of selling beer on Sunday as charged in Exhibit 3. He acknowledged that he served time as shown by Exhibit 2, but that he was framed. With respect to the charge shown in Exhibit 1, Petitioner contends that he was asleep and never authorized his step daughter to sell any of the beer at the filling station he had just bought which, according to Chandler, constituted the basis for the charge.

   
   

   CONCLUSIONS OF LAW

   
   

5. It is to be noted that Petitioner was denied his license on grounds that he had been convicted of beverage law violations within the past five years. Section 561.15(2) F.S. provides in pertinent part:

   
   

   "No license under the beverage law shall be issued to any person who has been convicted within the past five years of any offense against the beverage laws

   of this state "

   
   

6. Exhibit 1 shows only that Petitioner was charged with a violation of the beverage laws. Exhibit 1 is not an adjudication of guilt or even a withholding of adjudication after plea or jury verdict. It is simply an order of the court directing forfeiture of an appearance bond when the defendant in that case failed to appear. Therefore, Exhibit 1 does not prove a violation of the beverage law; only that Petitioner was so charged.

7. Section 562.14(1) F.S. provides in pertinent part: "Except as otherwise provided by county

   or municipal ordinance, no alcoholic beverage may be sold, consumed, served or permitted to be served or consumed at any place holding a license under the Division of Beverage between the hours of midnight and 7:00 A.M. the following day."

   
   

8. Here there was no evidence that beer was sold by Petitioner between the hours of 12:00 midnight and 7:00 A.M. Sunday, or between the hours of 12:00 midnight and 7:00 A.M. Monday. Petitioner in his testimony admitted that he had sold beer on Sunday, but no evidence was presented at what hour this sale occurred.

   
   

9. Section 561.29 F.S. provides that one ground for revocation or suspension of the license of a person holding a beverage license is "violation of any municipal or county regulation in regard to the hours of sale". Even if such a violation by an applicant for a license constitutes grounds for denying that license, the only evidence here presented that a municipal or county ordinance was violated would have to be inferred from Exhibit 3. Nowhere thereon is such an ordinance cited and a copy of such an ordinance making it an offense to sell beer between the hours of 12:00 midnight Saturday and 7:00 A.M. Monday was not submitted, nor was such ordinance shown to exist.

10. Here Petitioner has operated a beer license in Havana for several years without charges being brought against his license. According to his testimony he did not renew this license for the current year due to lack of business and an opportunity to relocate in Quincy.

    
    

11. From the foregoing it is concluded that no violation of the beverage laws by Petitioner within the past five years has been shown, It is therefore,

    
    

12. RECOMMENDED that the application of Willie J. Chandler for a beer license at Chandler's Grocery, Quincy, Florida, be granted.

DONE and ENTERED this 3rd day of June, 1976, 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: 76-000859

Orders for Case No: 76-000859