STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1925

)

PEARLIE MAE SMITH t/a )

HAVE-A-SNACK CAFE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings on November 18, 1976 at the District Office of the State of Florida, Division of Beverage, 725 Bronough Street, Tallahassee, Florida. Prior to the commencement of the hearing the attorney for the Petitioner moved to dismiss count two of the notice to show cause and that motion was granted.

APPEARANCES

For Petitioner: Larry D. Winson, Esquire

Staff Attorney Division of Beverage 725 Bronough Street

Tallahassee, Florida 32304

For Respondent: Pearlie Mae Smith

1013 West Malloy Avenue Perry, Florida

ISSUE

Whether or not on or about the 14th of March, 1976, Pearlie Mae Smith, a licensed vendor, did have in her possession, permit or allow someone else, to wit: Junior Lee Smith, to have in their possession on the licensed premises, alcoholic beverages, to wit: 5 half-pints of Smirnoff Vodka, not authorized by law to be sold under her license, contrary to s. 562.02, F.S.

FINDINGS OF FACT

1. On March 14, 1976, and up to and including the date of the hearing, the Respondent, Pearlie Mae Smith, held license no. 72-65, series 2-COP with the State of Florida, Division of Beverage. The licensed premises is located at 1013 West Malloy Avenue, Perry, Florida. On the morning of March 14, 1976, Officer B.C. Maxwell with the State of Florida, Division of Beverage acting on an informant's information, searched the informant to determine if the informant had monies other than the money that the officer had given him or any alcoholic

   beverages on his person. Once the informant had been searched and it was determined that the informant was carrying with him only the money that the officer had given him to purchase alcoholic beverages, the informant was sent into the subject licensed premises. The informant returned with a half-pint bottle of alcoholic beverage not permitted to be sold on the licensed premise and indicated that this purchase was made from one Junior Lee Smith. Later in the morning, around 11:30, officers of the State of Florida, Division of Beverage entered the licensed premises and an inspection of those premises revealed a bag containing 5 half-pint bottles of Smirnoff Vodka in the kitchen area of the licensed premises. This bag and contents were admitted as Petitioner's Exhibit #2. The 5 half-pint bottles of Smirnoff Vodka are alcoholic beverages which are not allowed to be sold under the series 2-COP license on the subject premises. When the officers entered, the same Junior Lee Smith was in the licensed premises and indicated that he was in charge of the licensed premises and had been selling alcoholic beverages for "quite some time" together with his wife, Pearlie Mae Smith, the licensee. The bag he indicated, had been whiskey that had been left over from the night before.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction in this cause.

   
   

3. It is concluded as a matter of law that on or about the 14th day of March, 1976, Pearlie Mae Smith, a licensed vendor, did permit or allow someone else, to wit: Junior Lee Smith, to have in their possession on her licensed premises, alcoholic beverages, to wit: 5 half-pints of Smirnoff Vodka, not authorized by law to be sold under her license, contrary to s. 562.02, F.S., and thereby subjected the licensee to the penalties found in s. 561.29, F.S.

RECOMMENDATION

It is recommended that based upon the violation as established in the hearing that the licensee, Pearlie Mae Smith, have her beverage license suspended for a period of 30 days.

DONE and ENTERED this 19th day of December, 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:

Larry D. Winson, Esquire Staff Attorney

Division of Beverage 725 Bronough Street

Tallahassee, Florida 32304

Mrs. Pearlie Mae Smith 1013 West Malloy Avenue Perry, Florida

Docket for Case No: 76-001925

Orders for Case No: 76-001925