STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 78-340

) DABT NO. 3-77-42A RIP'S CORNER, 26-1381, 2-COP, )

1049 Davis Street, Jacksonville, ) Florida, ERNEST ISAAC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 11:00 a.m., on March 15, 1978, at 1934 Beachway Road, Jacksonville, Florida.

APPEARANCES

For Petitioner: Francis Bayley, Esquire

The Johns Building

725 South Bronough Street Tallahassee, Florida

For Respondent: Appeared in his own behalf.

ISSUES

Petitioner (hereafter DABT) seeks to assess a civil penalty against, or to suspend or revoke the Division of Beverage license issued to, Respondent, Ernest Isaac (hereafter Isaac) doing business as Rip's Corner. DABT has charged Isaac with four (4) violations of the beverage law. It is alleged that Isaac unlawfully possessed alcoholic beverages for which excise taxes had not been paid, that he unlawfully possessed for the purpose of sale or resale, malt beverages which did not have the word "Florida" printed on the lid, that he unlawfully possessed an alcoholic beverage which was not authorized to be sold under his beverage license and finally that Isaac conspired with another person to unlawfully obtain his beverage license.

FINDINGS OF FACT

1. Isaac is the holder of series 2-COP Alcoholic Beverage license, State of Florida, number 26-1381 for the years 1976-77 and 1977-78. The license was first issued in 1973. Series 2-COP vendor's licenses authorize the sale of beer and wine for consumption on the premises.

2. Isaac, the nominal licensee, had nothing to do with the existing business at the licensed premises known as Rip's Corner. The initial issuance of the license was obtained by Isaac on behalf of a Mr. Cornell Tarver because Tarver thought at the time that he was a convicted felon. In fact, Tarver later discovered that he was not a convicted felon. Nonetheless, the license has continued to be reissued in Isaac's name.

   
   

3. Rip's Corner is actually run by Cornell Tarver and has been since 1973. Tarver supervises the day to day management of the business by one Cecil Jackson, pays Jackson, does the hiring and firing and otherwise conducts all aspects of the business operation.

   
   

4. On July 16, 1977, Mr. Robert L. Dirst, a patrol officer with the United States Customs Services, went to the licensed premises in the company of Detective Sykes of the Jacksonville Sheriff's office. The purpose of the visit was to determine whether there was any stolen beer on the premises. The two originally intended to go to the Pace Setter Club but that was closed. The two went to the licensed premises with the understanding that they could locate the owner of the Pace Setter Club there. Mr. Tarver had a key to the Pace Setter Club and let them in. At that time, Detective Sykes advised Tarver that he was looking for stolen beer. Tarver told Sykes that he had recently purchased ten cases of what purported to be Miller High Life beer and agreed to take the two officers to the licensed premises to show them the cases. The cases were stamped "For Export Without Payment of Tax." The two officers at that point placed the ten cases under seizure and took them into custody.

   
   

5. On September 14, 1977, Richard A. Boyd, a beverage officer with DABT, went to the licensed premises and identified himself to the person in charge, one Ceaser Jackson. At that time, Boyd found two bottles of liquid labeled "Leroux Sloe Gin." Boyd seized these bottles because the license allows only the sale of beer and wine beverages. Isaac, when asked about the sloe gin, claimed it was his and that he inadvertently left it on the licensed premises.

   
   

6. At the hearing, no evidence was introduced other than the containers themselves to establish whether the liquids were alcoholic beverages or malt beverages.

   
   

   CONCLUSIONS OF LAW

   
   

7. Three of the four pending charges are founded on the premise that the liquids seized at the licensee's place of business were either alcoholic beverages or malt beverages. While those bottles of liquid which purport to be Miller High Life beer do not have the word Florida printed or lithographed on the crown or lid thereof, it is impossible to tell from the evidence whether the contents thereof are indeed malt beverages. Similarly, while the two bottles of Leroux Sloe Gin were found on the licensed premises, it is impossible to tell from the evidence whether the contents of the bottles constitute alcoholic beverages. There must be some independent proof of the nature of the contents such as chemical analysis or other evidence. Netso v. State, 5 So. 8 (Fla. 1888); Norwood v. State, 86 So. 506 (Fla. 1920); Atz v. Andrews, 94 So. 329 (Fla. 1922). Therefore, it is concluded that charges one, two and four of the Notice to Show Cause alleging violations of Sections 562.01, 562.02 and 563.06(1), Florida Statutes, are not established by the evidence.

   
   

8. The one remaining charge alleges that Isaac conspired with Tarver to unlawfully obtain the beverage license for Tarver who did not meet the

   qualifications to obtain the license. The charge states that such conduct is in violation of Sections 561.15 and 562.23, Florida Statutes.

   
   

9. Section 561.15(2) provides in pertinent part that no license under the beverage law shall be issued to any person who has previously been convicted of a felony. Section 562.23, Florida Statutes, makes it a misdemeanor for two or more persons to conspire to do any act in violation of the provisions of the beverage law if the act so conspired to be done would be a misdemeanor under the provisions of the beverage law.

   
   

10. The controlling language in the statute is that the act conspired to be done must be a violation of law. The evidence establishes that Isaac and Tarver were mistaken in their belief that Tarver had been previously convicted of a felony. In fact, he had not. Accordingly, there is no violation of Section 561.15(2), Florida Statutes, since Tarver was not a convicted felon. There is no evidence which, according to the language of the charge itself, shows that Tarver "did not meet the qualifications to obtain said license." Accordingly, it is concluded that the final charge is unsupported by the evidence. It is, therefore,

RECOMMENDED that DABT issue its final order dismissing the charges against Isaac.

DONE and ENTERED this 14th day of July, 1978, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

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

725 South Bronough Street Tallahassee, Florida 32304

Mr. Ernest Isaac c/o Rip's Corner 1049 Davis Street

Jacksonville, Florida

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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs. CASE NO. 78-340

DABT NO. 3-77-42A

RIP'S CORNER, 26-1381, 2-COP,

1049 Davis Street, Jacksonville, Florida, ERNEST ISAAC,

Respondent.

/

FINAL ORDER

COMES NOW the Director of the Division of Alcoholic Beverages and Tobacco of the Department of Business Regulation of the State of Florida, after giving due consideration to the complete record in this cause, including the transcript of formal proceedings before the Hearing Officer held on March 15, 1978, and the Recommended Order filed herein, noting that no exceptions have been filed thereto, and finds as follows:

1. The Findings of Fact contained in the Recommended Order filed by the Division of Administrative Hearings in this cause are hereby adopted with the exception of the following which the record reveals is not based on substantial, competent evidence:

   
   

   At the hearing, no evidence was intro- duced other than the containers themselves to establish whether the liquids were alcoholic beverages or malt beverages.

   
   

   First, the record reflects that counsel for Petitioner offered Petitioner's Exhibit No. 1 as evidence referring to it as "a case of Miller High Life Beer" (Tr--12). There was no objection by Respondent as to the representation or characterization of Petitioner's Exhibit No. 1 as being beer (Tr--18) thereby tacitly stipulating to the contents of the bottles as being beer. Furthermore, there were documentary exhibits introduced (Petitioner's Exhibits 2, 3, and 4; Tr--21) which identified the contents of the bottles contained in the carton as beer. Further, Mr. Cornell Tarver, the person who updated and controlled the licensed premises (Tr--45) and who purchased the case of beer in question (Tr--

   50) referred to the contents of the cases which he had purchased as being "beer" (Tr--50-53). Finally, there was testimony which was uncontradicted as to the chain of custody of the case of beer which reflected that it had been found by agents of the United States Custom Service on the licensed premises and thereby within the custody, control and possession of the licensee.

   
   

   Therefore, I must conclude as a Finding of Fact that the contents of the bottles contained in the case labeled as "Miller High Life Beer" introduced as

   Petitioner's Exhibit No. 1 is in fact beer, a malt beverage, and that it was within the custody, control or possession of the licensee on the licensed premises.

   
   

   Secondly, with regard to the two bottles introduced as Petitioner's Exhibits No. 7 and 8, again, counsel for Petitioner referred to those bottles as containing "sloe gin" prior to introducing them into evidence (Tr--26) without objection from Respondent. Again, Mr. Isaac referred to them in his testimony as containing "liquor" (Tr--28) and as "sloe gin" (Tr--55, 56). Finally, the two bottles were both sealed with Internal Revenue Service stamps thereon and, based in part upon the special expertise of the undersigned, would judicially note that such bottles when sealed and possessing Internal Revenue Service stamps in unaltered condition invariably contain alcoholic beverages. As with the case of beer, there was further testimony that not only were the two bottles of sloe gin found on the licensed premises (Tr--25, 26) but that they belonged to Respondent (Tr--28)

   
   

   Therefore, I must conclude as a Finding of Fact, that the contents of the two bottles introduced as Petitioner's Exhibits No. 7 and 8, is in fact an alcoholic beverage, and that said bottles were in the custody, control, and possession of Respondent on the licensed premises.

   
   

   Turning to the allegations of the third charge in the Notice to Show Cause, I would note that the Hearing Officer in his Recommended Order did not make any finding of fact as to the existence of a conspiracy by Respondent, Ernest Isaac and one Cornell Tarver to unlawfully obtain the subject alcoholic beverage license, thereby violating Section 562.23 and 561.15, Fla. Stat. (1977).

   However, the Findings of Fact which the Hearing Officer did make can lead only to the logical conclusion, and the undersigned does find as a finding of fact, that Respondent Ernest Isaac and Cornell Tarver did so conspire to unlawfully obtain a Florida alcoholic beverage license.

   
   

2. The Conclusions of Law contained in the Recommended Order filed by the Division of Administrative Hearings in this cause are hereby rejected in their entirety and in lieu thereof the undersigned finds as follows:

The first charge in the Notice to Show Cause alleged a violation of Section 562.01, Fla. Stat. (1977) by possession of untaxed bottles of Miller High Life Beer. Having determined as a finding of fact that the case introduced as Petitioner's Exhibit No. 1 did contain beer, a malt beverage, there is substantial, competent evidence (see testimony at Tr--39 and Section 563.06, Fla. Stat. (1977) that the excise tax imposed on such malt beverages by Section 563.05, Fla. Stat. (1977) had not been paid and that said beer was in the possession of Respondent. Therefore, the undersigned concludes that Respondent is in violation of the provisions of Florida Statutes as charged in Count 1 of the Notice to Show Cause.

Similarly, the second charge alleges violation of Section 563.06(1), Fla. Stat. (1977) by virtue of the possession of malt beverages without having the word "Florida" printed or lithographed on the crown or lid of the containers. The record contains substantial competent evidence (see Tr--39) that the allegations were true and that Respondent is in violation thereof.

The third allegation asserts that Respondent Ernest Isaac, in whose name the subject alcoholic beverage license had been issued, did conspire with one Cornell Tarver to obtain such license in violation of Sections 562.23 and 561.15, Fla. Statutes (1977). Again, the record contains substantial, competent

evidence to support this allegation (Tr--44-50). The subject alcoholic beverage license was clearly obtained by fraud.

The fourth and final charge alleges violation of Section 562.02, Fla. Stat. (1977) by the possession on the licensed premises of sloe gin, an alcoholic beverage which is not authorized by law to be sold under the subject beverage license. Again, there is substantial, competent evidence to support this allegation (Tr--28, 56).

It is thereupon consideration ORDERED that:

1. With respect to charges 1 and 2, since they arise out of the same transaction, that Respondent/Licensee is hereby ordered to pay a civil penalty in the amount of $500.00

   
   

2. With respect to charge 3, in consideration of the flagrant violation of the beverage laws and the manner in which the license was fraudulently obtained in the first instance, it is hereby ordered that the license held by the Respondent Rip's Corner, License No. 26-1381, 2-COP, be revoked.

   
   

3. With respect to charge 4, Respondent/Licensee is hereby ordered to pay a civil penalty in the amount of $100.00.

DONE AND ORDERED this 9th day of October, 1978 in Tallahassee, Florida.

CHARLES A. NUZUM, Director Division of Alcoholic Beverages

and Tobacco

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent by U.S. Mail to MICHAEL R.N. McDONNELL, HEARING OFFICER, Division of Administrative Hearings,

530 Carlton Building, Tallahassee, Florida 32304 and ERNEST ISAAC, c/o RIP'S CORNER, 1049 Davis Street, Jacksonville, Florida; and hand delivered to FRANCIS BAYLEY, STAFF ATTORNEY, Department of Business Regulation, 725 South Bronough Street, Tallahassee, Florida, this 9th day of October, 1978.

CHARLES A. NUZUM

Docket for Case No: 78-000340

Orders for Case No: 78-000340