STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 77-2035

) DABT NO. 2-76-22A CLUB 40, 30-164, 2-COP, 1 mile )

off Highway 90, Midway, Florida, ) Margaret P. Muse, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, in Tallahassee, Florida on December 8, 1977, before the undersigned hearing officer.

APPEARANCES

For Petitioner: Francis Bayley, Esquire

Department of Business Regulation The Johns Building

Tallahassee, Florida 32304 For Respondent: None

ISSUE PRESENTED

Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of s. 562.12, Florida Statutes, pursuant to s. 561.29(1)(b), F.S., as set forth in Notice to Show Cause issued by Petitioner on March 28, 1977.

The hearing in this case was scheduled for 9:00 A.M. on December 8, 1977 at Petitioner's business address in Tallahassee, Florida. Notice of Hearing was sent to the Respondent on November 21, 1977 by mail. The notice of hearing was not returned by the Post Office as being undelivered. Neither the Respondent nor any representative in her behalf appeared at the hearing. Accordingly, the Hearing Officer advised counsel for the Petitioner that the matter would be conducted as an uncontested proceeding.

FINDINGS OF FACT

1. The Respondent Margaret P. Muse operates Club 40 located at Midway, Florida, and is authorized to sell beer and wine for consumption on the premises incident to a Class 2-COP license issued by the Petitioner.

2. On August 15, 1976 at approximately 12:05 P.M., Gary Sams, a beverage officer with the Tallahassee field office of the Petitioner, accompanied by a reliable informant, went to the vicinity of Respondent's licensed premises. There, Sams searched the informant and found that he possessed no alcoholic beverages or currency. Sams gave the informant $5.00 and told him to go to the residence immediately east of the licensed premises. The informant entered the house, remained approximately 5 minutes and returned to Sams with a one-half pint unsealed bottle of Calverts Extra whiskey and a twelve-ounce sealed can of Schlitz beer in his possession. The informant told Sams that he had purchased the liquor from one Lou Ethel Palmer for $2.75 and that she had obtained it from a room in the house. Sams and the informant initialed the containers and Sams took them to the evidence room of his agency where they remained until the date of the hearing (testimony of Sams, Petitioner's Exhibit 1).

   
   

3. On August 22, 1976 at approximately 10:30 P.M., Sams returned to the premises with the same informant, and followed the same procedures as to a prior search of his person and directions to enter the residence again. Sams observed the informant do so where he remained for a period of time and then returned to Sams outside and turned over a one-half pint unsealed bottle of Calverts Extra whiskey. The informant stated that while in the residence, he had ordered the whiskey from Palmer, but that another female in the house had gone outside to obtain the whiskey. When she returned with it, the informant paid her $2.75 for the same. By the informant's description of the female who had sold the whiskey to him, Sams determined that she was the Respondent Margaret P. Muse. The two men initialed the container and Sams placed it in the evidence room of his agency where it remained until the date of this hearing (testimony of Sams, Petitioner's Exhibit 2)

   
   

4. On August 23, 1976, warrants authorizing search of the Palmer residence were obtained by Petitioner. On August 29, Sams and deputy sheriffs of Gadsden County proceeded to the residence in question where they were admitted by Muse. Arrest warrants were served on Muse and Palmer and the premises were searched. In the bedroom several half pints of vodka and whiskey were found and seized. Two cases of 12-ounce cans of Schlitz beer were found in an outbuilding adjacent to the house and also seized. Muse stated at the time that the beer was being stored in the outbuilding for the purposes of sale at the licensed premises (testimony of Sams).

   
   

   CONCLUSIONS OF LAW

   
   

5. In its Notice to Show Cause, Petitioner alleges that on or about August 22, 1976 the Respondent sold a one-half pint bottle of Calverts Extra to Guy Williams in violation of Florida Statutes 562.12, to wit: 561.29(1)(b).

   
   

6. Section 561.29(1)(b) authorizes Petitioner to revoke or suspend a beverage license where sufficient cause appears that the licensee has violated any laws of this state. Section 562.12(1) makes it unlawful for any person to sell alcoholic beverages except as permitted by his license or for any licensee to keep or possess alcoholic beverages not permitted to be sold by his license with intent to sell or dispose of same unlawfully.

   
   

7. The evidence fails to establish that Respondent, on the date in question sold an alcoholic beverage, as alleged to Guy Williams. The informer did not testify at the hearing. His statement to Sams as to the description of the alleged seller is hearsay and cannot be the sole basis for a finding. No other evidence was presented to establish the identity of the alleged seller. Accordingly, it is concluded that Petitioner has failed to prove its charge.

RECOMMENDATION

That the charge against Respondent, Margaret P. Muse, be dismissed.

DONE and ENTERED this 16th day of December, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

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

(904) 488-9675

COPIES FURNISHED:

Francis Bayley, Esquire Department of Business Regulation The Johns Building

Tallahassee, Florida

Mrs. Margaret P. Muse

P.O. Box 116

Midway, Florida 32343

PETITIONER'S EXHIBIT 1

One half-pint bottle labeled "Calvert Extra" (half full of liquid) One sealed can (12 ounce) Schlitz beer

PETITIONER'S EXHIBIT 2

One full unsealed half-pint bottle labeled "Calvert Extra"

Docket for Case No: 77-002035

Orders for Case No: 77-002035