STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DIVISION OF BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 77-005

)

FRANKLIN D. BOOCKHOLDT, )

t/a GIBBS NIGHT CLUB, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings, on January 20, 1977 at 1:00 p.m., at 1934 Beachway Road, Jacksonville, Florida.

APPEARANCES

For Petitioner: Dennis E. LaRosa, Esquire

Division of Beverage

Department of Business Regulation The Johns Building

725 Bronough Street

Tallahassee, Florida 32304

For Respondent: Franklin D. Boockholdt

Post Office Box 433 Hilliard, Florida 32046

ISSUE

Whether or not on or about the 20th day of January, 1976 the Respondent, Franklin D. Boockholdt, licensed under the Beverage Laws as a vendor did unlawfully make a false statement, to wit: said premises sought to be licensed, contains and will maintain at all times all necessary equipment and supplies for serving full course meals regularly, on an affidavit for special restaurant license, in violation of Section 837.012, F.S., thereby violating Section 561.29, F.S.

FINDINGS OF FACT

1. At all times material to the Notice to Show Cause, the Respondent, Franklin D. Boockholdt, was and is the holder of License No. 55-11, a Series 2- COP, held with the State of Florida, Division of Beverage.

   
   

2. On January 20, 1976, Beverage Officer, George Sterling, arrived at the licensed premises of the Respondent known as Gibbs Night Club, located at 511 South Wood Street, Callahan, Nassau County, Florida. The purpose of this visit

   was to inspect the aforementioned premises as an element in considering the application which the Respondent, Franklin D. Boockholdt, had made for a special restaurant license to be held with the Division of Beverage.

   
   

3. Prior to the time that Officer Sterling arrived at the subject premises, the Respondent had gone to the Airway's Facility of the Federal Aeronautics Administration at Hilliard, Florida and picked up a number of dishes from the cafeteria on that facility. These dishes were owned by a vendor whose name is Jet Services. The racks in which the Respondent carried the dishes away were the property of the Federal Aeronautics Administration. The Respondent then took the dishes, which would include flatware, to the subject premises and these dishes and flatware were part of the inventory which was shown to Officer Sterling in the course of an inspection held on January 20, 1976 at the subject premises.

   
   

4. While checking the subject premises on January 20, 1976, Officer Sterling, among other things, was looking to establish that there were sufficient accommodations for serving 200 or more patrons at tables. His inventory on January 20, 1976 revealed 150 sectional trays, 50 plates, and sufficient forks, knives, spoons and glasses to serve the 200 people. Once Officer Sterling had completed his inventory he gave the Respondent Boockholdt an affidavit which was to be completed by the Respondent and given back to Officer Sterling as one of the preconditions to approval of the license application for a special restaurant license.

   
   

5. The Respondent took the affidavit and completed its parts and appeared before a notary public to have the affidavit sworn and subscribed to by the notary public. The notary public was Dorothy Beasley. She notarized the subject affidavit and witnessed the signature of the Respendent. This activity took place on January 20, 1976. In addition, she read the document in full orally in the presence of the Respondent and asked the Respondent if he would swear to the affidavit. The Respondent replied "yes". The Respondent then signed his name to the affidavit. The affidavit in question is Petitioner's Exhibit #2 admitted into evidence. Within the affidavit is the statement under the number seven (7). Number seven (7) says:

   
   

   "Said premises sought to be licensed has, and will maintain at all times, accommo- dations for serving 200 or more patrons at tables;"

   
   

   The numerals 200 had been placed in the blank with the knowledge of the Respondent. The affidavit was then returned to Officer Sterling on January 20, 1976, at which time he affixed his signature as having checked the above described restaurant and found the statements in the affidavit to be true.

   
   

6. Two hours after the Respondent had picked up the dishes and flatware at the Airways Facility of the Federal Aeronautics Administration at Hilliard, Florida, he returned these items to that facility and they were inventoried in their entirety.

   
   

7. Acting on a complaint filed with the Division of Beverage by Douglas M. Messick, the Manager of the Federal Aeronautics Administration at Hilliard, Florida, Officer Sterling returned to the licensed premises on February 9, 1976. When he arrived at the licensed premises, he made an inventory of the dishes and flatware. Among other things, he found 140 sectional trays, plates of sizes of from 10" to 12" in diameter, some of which had not been present in the January

   20, 1976 inventory, miscellaneous knives, forks and spoons, and glasses and cups. There were sufficient numbers to meet the service for 200 of all items with the exception of glasses which were deficient in number. There were not sufficient numbers of cups, but there is a question about whether it was intended that coffee and tea be served with the meal at the time that the affidavit was being filled out on January 20, 1976. After inventorying the accommodations for serving on February 9, 1976, a report was made and the subject charges were placed.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. It is concluded as a matter of law that on or about January 20, 1976, the Respondent, Franklin D. Boockholdt, now licensed under the Beverage Laws as a vendor, did unlawfully make a false statement, to wit: that the premises sought to be licensed contains and will maintain at all times all necessary equipment and supplies for serving full course meals regularly, on an affidavit for a special restaurant license, when based upon the facts as shown in this hearing, that statement was untrue, in violation of Section 837.012, F.S., thereby violating Section 561.29, F.S.

RECOMMENDATION

It is recommended that the License No. 55-11, Series 2-COP, held by the Respondent, Franklin D. Boockholdt, to trade at Gibbs Night Club at 511 South Wood Street, Callahan, Florida, be revoked.*

* RO issue date of 2/22/77 was obtained from the docket sheet.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Dennis E. LaRosa, Esquire Division of Beverage

Department of Business Regulation The Johns Building

725 Bronough Street

Tallahassee, Florida 32304

Franklin D. Boockholdt

P. O. Box 433

Hilliard, Florida 32046

Docket for Case No: 77-000005

Orders for Case No: 77-000005