STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 77-855

)

BETTER BRANDS, INC., t/a )

BETTER BRANDS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings at 614 East Clinton Street, Marianna, Florida, on May 19, 1977.

APPEARANCES

For Petitioner: Charles Collett, Esquire

Division of Beverage

725 South Bronough Street The Johns Building Tallahassee, Florida 32304

For Respondent: Franklin R. Harrison, Esquire

406 Magnolia Avenue

Panama City, Florida 32401 ISSUE

Whether or not on or about December 13, 1976, investigation revealed, that Charles Hoskins, President of Better Brands, Inc., a licensed distributor, did lease property, to wit; property located at 2211 Hwy 231, N/O Panama City, Bay County, Florida, to Robert C. Duff, a licensed vendor, who used said property as a part of, or in connection with the licensed premises or place of business, contrary to s. 561.42(1) F.S. and Rule 7A-4.18, F.A.C.

FINDINGS OF FACT

1. From on or about December 13, 1976, up to and including the date of the hearing, Robert C. Duff was the holder of license no. 13-87, series 1-COP, held with the State of Florida, Division of Beverage. This license was held for purposes of trading as Bob's Bait and Tackle and the business was located at 2211 Hwy 231, N/O Panama City, Bay County, Florida.

   
   

2. Mr. Duff wanted to transfer the license and the Division of Beverage was in the process of investigating this request for license transfer in December, 1976. In the course of this investigation it was revealed that Robert

   C. Duff did not own the premises upon which his business was located. Mr. Duff did not try to conceal the fact that he did not own the licensed premises. Moreover, Mr. Duff and a Mr. Charles Hoskins, President of Better Brands, Inc., told of a discussion between them and the investigating agent of the Division of Beverage at the time Duff received his license, in which the agent was told that Duff did not actually own the property. This licensing was in 1968. In fact, Hoskins has been leasing the licensed premises to Duff since 1968 for a lease rental amount ranging from $200.00 to $250.00. That lease agreement was still in effect at the time of the hearing. One final comment on the statement of ownership pertains to Petitioner's Exhibit #2 admitted into evidence at the hearing. This is an affidavit signed by Robert Duff showing him to be the owner of the licensed premises. This affidavit was executed at the time of the license application in November, 1968. Duff claims he was unaware that he signed such an affidavit and points to the fact that the reviewing agent, with the knowledge of his lack of ownership in 1968, recommended the approval of the license application and the license was issued.

   
   

3. Charles Hoskins owns the premises upon which the license is operated in his personal name, and there was no showing that any other principals were involved in the ownership of the property, either directly or indirectly. Charles Hoskins was from 1968, through and including the date of the hearing, the President of Better Brands, Inc., which holds license no. 13-233, J-DBW with the State of Florida, Division of Beverage. This license is a license for a distributor. In addition, Hoskins from the beginning date and up to and including the date of the hearing has held between 10 percent and 20 percent of the stock owned by Better Brands, Inc.

   
   

4. Both Robert C. Duff and Better Brands, Inc., have been charged with violations of s. 561.42(1), F.S. which states in pertinent part:

   
   

   "No licensed manufacturer or distributor of any of the beverages herein referred to shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the Beverage Law."

   
   

   The facts of this case do not reveal that Better Brands, Inc., as a licensed distributor has any financial interest, directly or indirectly in the establishment or business of Robert C. Duff, a vendor licensed under the Beverage Law.

   
   

5. Robert C. Duff and Better Brands, Inc., have also been charged with a violation of Rule 7A-4.18, F.A.C., which states:

   
   

   "Rental between vendor and distributor prohibited.

   It shall be considered a violation of section 561.42, Florida Statutes, for any distributor to rent any property to a licensed vendor or from a licensed vendor if said property is used, in whole or part

   as a part of the licensed premises of said vendor or if said property is used in any manner with said vendor's place of business."

   
   

   The facts in this matter do not show that Better Brands, Inc., rented any property to Robert C. Duff, the licensed vendor.

   CONCLUSIONS OF LAW

   
   

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

   
   

7. The facts as shown in this hearing do not establish a violation by Robert C. Duff of s. 561.42, F.S., therefore he is not guilty of such an infraction.

   
   

8. The facts as shown in this hearing do not establish a violation by Robert C. Duff of Rule 7A-4.18, F.A.C., therefore he is not guilty of such an infraction.

RECOMMENDATION

It is recommended that the charge against Robert C. Duff, Respondent, be dismissed this 15th day of July, 1977.

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

(904) 488-9675

COPIES FURNISHED:

Charles Collett, Esquire Division of Beverage

725 South Bronough Street The Johns Building Tallahassee, Florida 32304

Franklin R. Harrison, Esquire

406 Magnolia Avenue

Panama City, Florida 32401

Docket for Case No: 77-000855

Orders for Case No: 77-000855