STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ALCOHOLIC ) BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1933

)

BETTER BRANDS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Marianna, Florida, before the Division of Administrative Bearings by its duly designated Hearing Officer, Robert T. Benton, II, on January 28, 1978. The parties were represented by counsel:

APPEARANCES

For Petitioner: Mr. Francis Bayley, Esquire

The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: Mr. Franklin R. Harrison, Esquire

406 Magnolia Avenue

Panama City, Florida 32401

By notice to show cause served on June 25, 1976, petitioner alleged that respondent "[o]n or before April 2, 1976, . . . assist[ed] a retail vendor" namely Lorraine P. Strickland, doing business as the Bowlarama, "by the giving of gifts, loans of money or property or by the giving of rebates . . . contrary to F.S. 561.42(1)."

FINDINGS OF FACT

1. Lorraie P. Strickland is the proprietor of a bowling alley in Panama City, Florida, called the Bowlarama, an is licensed to sell beer on the Bowlarama premises. Ms. Strickland does in fact buy beer from various distributors and sell it at retail at the Bowlarama. In 1975, as in preceding years, the Bowlarama hosted a tournament conducted under the auspices of the Professional Bowlers Association. By hosting the tournament, Ms. Strickland incurred expenses of approximately eighteen hundred dollars ($1,800.00). This tournament was part of a series or tour. The Professional Bowlers Association caused a "PBA Tour Program" to be printed, for use throughout the tour. The program consists of 80 pages, exclusive of inserts by local tournament hosts. The PBA Tour Programs offered for sale at the Bowlarama in 1975, contained 16 pages bound into the middle of the national publication. Almost the entire insert was devoted to advertising by local advertisers, whom Ms. Strickland had

   solicited. She used the revenue from this advertising to defray the costs of the tournament.

   
   

2. Charles Hoskins is president of petitioner, a licensed beer distributor. Mr. Hoskins was one of the persons Ms. Strickland asked to purchase an advertisement in the PBA Tour Program insert. Mr. Hoskins telephoned his attorney and inquired whether making the purchase on behalf of petitioner would create a legal problem. Being advised that it would not, Mr. Hoskins purchased a full page advertisement on petitioner's behalf for one hundred dollars ($100.00). There was no evidence that this price was greater than the price charged any other local advertiser for a full page advertisement. At Ms. Strickland's behest, Mr. Keith Adams composed the advertisement for petitioner and the four beers distributed by petitioner, which appeared in the 1975 PBA Tour Program. The inside of the front cover of the 1975 PBA Tour Program was devoted to an advertisement for a beer which petitioner does not distribute. The 1974 PBA Tour Program insert contained advertisements for three of petitioner's local competitors.

   
   

3. Mr. Grady Leon Broxton, Jr., an employee of respondent, inspected the Bowlarama on February 19, 1976. Although he found beer of the kinds distributed by petitioner and no other kinds, the Bowlarama buys beer from petitioner's competitors as well as from petitioner.

   
   

4. After a hiatus of approximately five years, petitioner began selling beer to the Bowlarama about three weeks before Ms. Strickland approached Mr. Hoskins about the advertisement. The earlier sales by petitioner to the Bowlarama ceased when Ms. Strickland told Mr. Hoskins to stop deliveries, giving as her reason that she had caught one of petitioner's employees stealing from her. The deliveries began again after Mr. Hoskins told Ms. Strickland that the employee in question had retired.

   
   

   CONCLUSIONS OF LAW

   
   

5. Distributors like petitioner are forbidden to "assist any vendor by any gifts or loans of money or property of any description or by the giving of any rebates of any kind whatsoever." Section 561.42(1), Florida Statutes (1977). The purchase by petitioner of an advertisement in the bowling tournament program was unquestionably of assistance to Ms. Strickland, a licensed vendor. Nothing in the evidence indicated, however, that the transaction was a gift, a loan, the giving of a rebate, or anything other than the arms' length sale it purported to be. The evidence did not show that the price for the advertisement was inflated. The fact that an advertisement for beer was taken in the national portion of the program indicates the existence of legitimate business reasons for the advertisement taken by petitioner.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner dismiss the notice to show cause.

DONE and ENTERED this 22nd day of February, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Francis Bayley, The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Mr. Franklin R. Harrison,

406 Magnolia Avenue

Panama City, Florida 32401

Docket for Case No: 76-001933

Orders for Case No: 76-001933