STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELVIN AND BARBARA ANN BOLES d/b/a ) YULEE SUPERMARKET AND QUICK ) MARKET, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1549

) STATE OF FLORIDA, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at 1934 Beachway Road, Jacksonville, Florida, at 4:30, P.M., September 15, 1977.

APPEARANCES

For Petitioner: W. O. Birchfield, Esquire

300 Independent Square Jacksonville, Florida 32201

For Respondent: Francis Bayley, Esquire

Staff Attorney

Department of Business Regulations Division of Alcoholic

Beverages and Tobacco 725 South Bronough Street

Tallahassee, Florida 32304 ISSUE

1. Whether or not the Petitioners, Elvin and Barbara A. Boles, are entitled to be granted a new series 2-APS, license by the Respondent, for the location at State Road 200, intersection of US 17, Yulee, Florida, where they are doing business as Yulee Supermarket.

   
   

2. Whether or not the Petitioners, Elvin and Barbara A. Boles, are entitled to be granted a new series 1-APS, license by the Respondent for the location at Blackrock Road, 3 miles off State Road 100, Yulee, Florida, where they are doing business as Quick Market.

FINDINGS OF FACT

1. The Petitioners, Elvin and Barbara A. Boles, made an application to the Respondent for a new series 2-APS, license to be issued by the Respondent. This license was to be utilized at a business establishment known as Yulee

   Supermarket, located at the intersection of State Road 200 and US 17, near Yulee, Florida and in Nassau County, Florida.

   
   

2. The Petitioners have also made an application for a new series 1-APS, license to be granted for an establishment known as Quick Market, which is located on Blackrock Road, 3 miles off State Road 100, near Yulee, Florida, in Nassau County, Florida. This application was also made to the Respondent.

   
   

3. Both license applications are for businesses found in the unincorporated areas of Nassau County, Florida. For that reason, the Director of the Division of Alcoholic Beverages and Tobacco denied the respective license applications, based upon his contention that no licenses were available in Nassau County, Florida. Specifically, the Director was denying the beer and wine license applied for the Yulee Supermarket and the beer license applied for the Quick Market. The authority stated in the letters of denial, dated August 9, 1977, was Chapter 61-2532, Laws of Florida. This cause comes on for consideration based upon the denial of those license applications.

   
   

4. Rule 7A-1.13, F.A.C., defines the scope of usage in the series 1-APS and series 2-APS licenses. Under this rule, a series 1-APS license is beer, package, and a series 2-APS, license is beer and wine, package. The terminology package means for consumption off premises. Therefore, the Petitioners would be allowed to sell beer on one premises and beer and wine on the second premises of any alcoholic weight content, to be consumed off the premises, assuming the licenses are granted.

   
   

5. In examining the basis for the Respondent's denial of the license applications, the focal point of the Respondent's position seems to be found in Chapter 61-2532, Section 1., Laws of Florida. This section states:

   
   

   "the number of licenses which may be granted for the sale of intoxicating beverages (as defined by the

   'The Florida Beverage Law') outside of any incorporated city or town, within Nassau County, to venders operating places of business where beverages

   containing alcohol of fourteen percent (14 percent) or less by weight are sold, is limited to one

   1. license for each five hundred (500) persons."

      
      

      An analysis of that section identifies the fact that it is the intoxicating beverage that is being regulated. Under the "Beverage Law," which is at issue, the definition of intoxicating beverage is found in s. 561.01(5), F.S., which states the following:

      
      

      "'intoxicating beverage' and 'intoxicating liquor' mean only those alcoholic beverages containing more than 3.2 percent of alcohol by weight."

      
      

      When this definition is considered in view of the latter language of the subject Section 1., of Chapter 61-2532, Laws of Florida, which speaks to the operation of businesses where beverages containing alcohol of 14 percent or less are sold; it is clear that the subject law regulates the number of licenses authorized in Nassau County, Florida, for selling alcoholic beverages whose content by weight of alcohol ranges from more than 3.2 percent up to and including 14 percent.

      
      

6. The parties stipulated, that under the last decennial census, no quota of licenses, either series 1-APS or 2-APS were available under terms of the

   formula set forth in Chapter 61-2532, Laws of Florida. Consequently, any license granted, must be outside the purview of that law. From an examination of the privilege allowed under the series 1-APS, license, in view of the definition of intoxicating beverage found in s. 561.01(5), F.S., and the language of Chapter 61-2531, Laws of Florida, the Respondent should issue a series 1-APS, license to the Petitioner for sale of beer containing 3.2 percent of alcohol by weight or less, for consumption off premises. The issuance of such license would pertain to the Quick Market. (This decision would be in keeping with the final order issued by the Respondent, in the party of the Director of the Division of Alcoholic Beverages and Tobacco, in the case of Lil Champ Food Stores, Inc. d/b/a Lil Champ Food Store #96, State Road ALA East Pinewood Drive, Yulee, Florida. In that final order the Director allowed that licensee to maintain his series 1-APS, license in the unincorporated limits of Nassau County, Florida, but prohibited the sale of any alcoholic beverages of more than 3.2 percent of alcohol by weight.)

   
   

7. One other matter was brought forth in the hearing concerning the series 1-APS, license for Quick Market. This matter pertained to the possible violation of a zoning restriction found in Chapter 61-2532, Laws of Florida, particularly Section 3. The proof offered in the hearing indicated that no such violation existed. This section spoke of locating a business or vendor of intoxicating beverages within a thousand feet of an established school or church. Moreover, the limitation would not have application to the type of license to which the Petitioner's are entitled, for the foregoing reasons.

   
   

8. The requested series 2-APS, license for the Yulee Supermarket has two aspects; one pertaining to the sale of beer and the other pertaining to the sale of wine. Wine is an intoxicating beverage or liquor containing more than 3.2 percent of alcohol by weight and therefore Chapter 61-2532, Laws of Florida, would have application. Since no quota licenses are available in Nassau County, Florida, Chapter 61-2532, Laws of Florida, prohibits the issuance of a series 2- APS, license to the Petitioners. This opinion is stated, premised on the belief that the beer portion of the applied for license may not be severed from the request to sell wine for consumption off the licensed premises.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The Respondents had moved for a dismissal of any action pertaining to an application for transfer and change of name at the Yulee Supermarket located at the intersection of State Road 200 and US 17 in Nassau County, Florida, which was denied by the Director of the Division of Alcoholic Beverages and Tobacco on September 20, 1976. Consideration of that request was withdrawn by the Petitioners and the motion is therefore moot.

    
    

11. Based upon the Findings of Fact and examination of the applicable laws, it is concluded as a matter of law that the Petitioners are entitled to the issuance of a series 1-APS, beer license for consumption off premises, limited to beer of 3.2 percent or less of alcohol by weight, for the business known as Quick Market.

    
    

12. Based upon the Findings of Fact and an examination of the applicable laws, it is concluded as a matter of law that the Petitioners are not entitled to be granted a series 2-APS beer and wine license for consumption off the premises, for the business known as Yulee Supermarket.

RECOMMENDATION

It is recommended that the Director of the Division of Alcoholic Beverages and Tobacco grant a series 1-APS beer license for consumption off premises, limited to beer of 3.2 percent of alcohol by weight or less, to be given to the Quick Market. It is recommended that the application for series 2-APS beer and wine license for consumption off premises, to be granted to the business Yulee Supermarket, be denied.

Done and Ordered this 4th day of October, 1977, in Tallahassee, Florida.

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

(904) 488-9675

COPIES FURNISHED:

W. O. Birchfield, Esquire

300 Independent Square Jacksonville, Florida 32201

Francis Bayley, Esquire Department of Business Regulation

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32304

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELVIN AND BARBARA ANN BOLES d/b/a YULEE SUPERMARKET AND QUICK MARKET,

Petitioner,

vs. CASE NO. 77-1549

STATE OF FLORIDA, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,

Respondent.

/

FINAL ORDER

The Hearing Officer's Recommended Order having been considered and the Director being fully advised in the premises, it is upon consideration

ORDERED:

1. As to the application for a 2-APS beer and wine license of the Petitioners d/b/a Yulee Supermarket the Recommended Order is hereby approved and adopted as the final order of the Division based upon the findings of fact and conclusions of law expressed by the Hearing Officer.

   
   

2. As to the Petitioner's application for a 1-APS beer license d/b/a Quick Market the Petitioner's application is hereby denied. The conclusion of law expressed by the Hearing Officer with regard to this application is rejected. Section 1, Chapter 61-2532, Laws of Florida, makes two references to beverages. The first reference is to intoxicating beverages. The second reference is to "... places of business where beverages containing alcohol of fourteen percent (14 percent) or less by weight are sold." This latter reference would include alcoholic beverages of 3.2 percent of alcohol by weight or less. Therefore, the recommendation to issue a 1-APS license for the sale of beer of 3.2 percent of alcohol by weight or less would be inconsistent with the expression of the legislative intent in Section 1 of the applicable Law of Florida. Rule 7A-1.13 of the Division of Alcoholic Beverages and Tobacco defines license classifications. Vendor's License 1-APS is defined as beer-package. There is no subclassification under 1-APS and thus it would cover beer of all alcoholic percentiles. The recommendation that a 1-APS license be issued with a restriction to 3.2 percent of alcohol by weight is thus an exception to the existing 1-APS classification. The recommendation would call for the issuance of two separate types of 1-APS beverage licenses applicable only in Nassau County that would create an impossible enforcement burden for the Division. For these reasons the Hearing Officer's interpretation must be rejected and the license application denied.

DONE AND ORDERED this 18th day of October, 1977.

Charles A. Nuzum Director

Division of Alcoholic Beverages and Tobacco

Department of Business Regulation State of Florida

Copies furnished to:

Mr. Charles C. Adams Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304

Mr. W. O. Birchfield

300 Independent Square Jacksonville, Florida 32201

Mr. Francis Bayley

Department of Business Regulation Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32304

Docket for Case No: 77-001549

Orders for Case No: 77-001549