STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 77-2037

) DABT NO. 2-77-4A CHANDLER'S GROCERY, 30-52 2-APS, )

300 yard w/o 159 & 159A, Gadsden ) County, Earlene Chandler, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at 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: Michael E. Allen, Esquire

and Michael Edwards, Esquire

112 East Washington Street Quincy, Florida 32351

ISSUE PRESENTED

Whether respondent's beverage license should be suspended or revoked, or civil penalty assessed, for alleged violation of Section 562.12, Florida Statutes, pursuant to Section 561.29, Florida Statutes, as set forth in the Notice to Show Cause issued by Petitioner.

FINDINGS OF FACT

1. Respondent Earlene Chandler of Quincy, Florida, is the owner of Chandler's Grocery located in Gadsden County, which holds a beverage license for the sale of packaged beer and wine under Class 2-APS, issued by the Petitioner (Petitioner's Exhibit 1).

   
   

2. On March 11, 1977, Frederick Miller, a beverage officer employed by Petitioner, and a paid informer of Petitioner, Clinton Harrison, A/K/A Guy Williams, drove to Respondent's place of business and parked approximately 300 to 400 yards from the licensed premises. Miller searched Harrison and

   determined that he did not then possess any alcoholic beverages. While Miller stood by the side of the road, Harrison drove the car to Respondent's grocery store and entered the same. He returned to where Miller stood in approximately, 10-15 minutes and turned over to Miller a partially-filled Coca Cola bottle containing a mixture of vodka and grapefruit juice. Miller had watched Harrison enter and leave from the front door of the store; however, he could not recall if anyone entered the store while Harrison was there. Miller was able to determine that vodka was in the bottle by it's smell. He and Harrison placed their initials on a label which was then affixed to the bottle, and Miller then placed the bottle in the evidence room vault at his agency in Tallahassee until the date of hearing. Harrison told Miller that Willy Chandler had sold him a drink of vodka for one dollar (testimony of Miller, Petitioner's Exhibit 2).

   
   

3. On March 21, 1977, Miller obtained search warrants to search the residence of Respondent, which is located behind the grocery store. On March 27, 1977, the warrant was served on the Respondent and a search of the residence revealed the presence of two sealed quart bottles and one unsealed, partially filled quart bottle labeled Taaka Vodka in a kitchen cabinet. These bottles were tagged and initialed by Miller and placed in his agency's evidence vault until the date of hearing. At the time the search was made, the Respondent stated that the vodka belonged to her husband (testimony of Miller, Petitioner's (composite Exhibit 3).

   
   

4. Although the informer Harrison testified at the hearing, his version of what transpired at Chandler's Grocery on March 11th, 1977, is in conflict with the testimony of Respondent, her husband Willie Chandler, and that of Phillip N. West, a customer in the store at the time in question. Harrison testified that he asked Willie Chandler several times for a "dollar shot", but that Chandler refused, stating that he either did not have anything or did not sell intoxicating beverages Harrison further testified that finally Chandler went outside the store and returned with a glass containing some vodka which he, Harrison, put in a Coke bottle and mixed with fruit juice after paying one dollar for the vodka and twenty-five cents for the juice. Harrison conceded that he had had a "beer or two" before he entered the grocery. He also testified that only Chandler, the Respondents and a child were present in the store at the time. Harrison's credibility was attacked by the Respondent at the hearing by a showing that he has a bad reputation for truth and veracity in the community. (Testimony of Harrison, W. Chandler, Simmons).

   
   

5. The evidence establishes that the following took place when Harrison entered Chandler's Grocery Harrison asked Willie Chandler for a half pint of whiskey and Chandler told him that he did not sell whiskey. There were a number of children and several adults in the store. Harrison, who was somewhat "unstable" and gave the appearance of being under the influence of alcohol, was annoying the children in the store and issuing mild threats against them. He continued to ask Chandler for whiskey and finally the latter told him that he would give him some. Chandler and Harrison then left the premises and, while Harrison stood at a gate in full view of the occupants of the store who observed him continuously, Chandler went to his residence and brought back some vodka in a glass which he handed to Harrison at the gate Harrison reentered the store, purchased a Coca Cola bottle for five cents and some grapefruit juice for

   twenty-five cents, which he mixed in the bottle and, after taking a drink of same, left the premises. (Testimony of W. Chandler, Respondent, West, Petitioner's Exhibit 4).

   CONCLUSIONS OF LAW

   
   

6. Petitioner's Notice to Show Cause alleges that on March 11, 1977, at Chandler's Grocery, Willie Jasper Chandler sold a drink of vodka, an alcoholic beverage not permitted to be sold under Respondent's license, contrary to Section 562.12, Florida Statutes. Petitioner seeks to take disciplinary action against the licensee under the provisions of Section 561.29, Florida Statutes.

   
   

7. Section 562.12(1) provides as follows:

   
   

   "562.12 Beverages sold with improper license, or without license, or held with intent to sell prohibited. -

   1. It is unlawful for any person to sell alcoholic beverages without a license, and it is unlawful for any licensee to

      sell alcoholic beverages except as permitted by his license, or to sell such beverages in

      any manner except that permitted by his license; and any licensee or other person who keeps

      or possesses alcoholic beverages not permitted to be sold by his license, or not permitted to be sold without a license, with intent to sell dispose of same unlawfully, or who keeps

      and maintains a place where alcoholic beverages are sold unlawfully, shall be guilty of a misdemeanor of the second degree, punishable

      as provided in s. 775-082 or s. 775-083."

      
      

8. Section 561.29 gives Petitioner authority to revoke or suspend beverage licenses or to impose a civil penalty for violations of the Beverage Law under certain circumstances detailed therein. The Notice to Show Cause in this case did not specify the particular ground for disciplinary action that is asserted under the statutory provision; however, it is considered unnecessary to determine if this failure to so specify a ground is fatal to the case under consideration. The evidence is insufficient to show that the Respondent, her agent or employee sold a drink of vodka to anyone on March 11, 1977. The evidence does show that the drink of vodka given to the Petitioner's informer was privately owned by Respondent's husband, Willie Chandler for his personal use. Accordingly, it is concluded that Petitioner has failed to sustain its allegation of a violation of Section 562.12, Florida Statutes.

   
   

9. In view of the foregoing, it is considered unnecessary to consider the defense of entrapment raised by Respondent at the hearing.

RECOMMENDATION

That the charge against Respondent Earlene Chandler 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 32304

Michael L. Allen, Esquire and Michael Edwards, Esquire

112 East Washington Street Quincy, Florida 32351

Docket for Case No: 77-002037

Orders for Case No: 77-002037