STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 78-350

) DABT NO. 3-77-41A THREE STAR DINER, 26-1369, 2-COP, )

3104 Myrtle Avenue, Jacksonville, ) Florida, L.C. and P.H. Williams, )

)

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 2:00 pm., on March 16, 1978, at 1934 Beachway Road, Jacksonville Florida.

APPEARANCES

For Petitioner: Francis Bayley, Esquire

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida

For Respondent: Joseph S. Farley, Jr., Esquire

350 East Adams Street Jacksonville, Florida

Petitioner (hereafter DABT) seeks to assess a civil penalty against or to suspend or revoke the beverage license of Respondents L. C. and P. H. Williams (hereafter Williams) doing business as the Three Star Diner, for voilations of the Florida beverage law. It is alleged that Williams unlawfully possessed alcoholic beverages for which excise taxes had not been paid, that Williams unlawfully possessed for the purpose of sale or resale malt beverages which did not have the word Florida printed or lithographed on the crown or lid thereof and that Williams violated Section 812.031(1) and (3), Florida Statutes, by possessing stolen property. As to each charge, it is alleged that Williams or his agent, servant or employee committed the offense.

FINDINGS OF FACT

1. Lincoln C. and Pearl H. Williams are the licensees under the State of Florida Alcoholic Beverage license number 26-1369, series 2-COP for the years 1976-77 and 1977-78. The Williams do business as the Three Star Diner. The

   series 2-COP license authorizes Williams to sell beer and wine for consumption on the premises.

   
   

2. It was stipulated by respective counsel at the final hearing and it is found as a matter of fact that the Williams are licensees over which DABT has jurisdiction, that forty-four 12 ounce bottles of Miller High Life beer were seized on the premises as alleged and that the liquid contained in the bottles is an alcoholic beverage and a malt beverage. It was further stipulated that the word Florida was not printed or lithographed on the crown or lid of the bottles and that the excise tax was not paid for the beer.

   
   

3. Detective John A. Zipper of the Jacksonville Sheriff's office seized the forty-four bottles of Miller High Life beer at the licensed premises on July 18, 1977. Detective Zipper found 19 or 20 bottles of Miller High Life in a cooler adjacent to serving counters. There was other beer and wine contained in the same cooler. Zipper saw no customers who had purchased the untaxed beer. Pearl Williams, one of the licensees, had no knowledge that the untaxed beer was on the premises. Pearl Williams had recently purchased ten cases of properly taxed Miller High Life beer from the Miller High Life delivery man on the previous Friday. She purchased no other beer.

   
   

4. A Mr. Ed Knuton, Jr., testified and claimed to have been hired by the licensees' son to clean up the licensed promises on July 18, 1977. While sweeping out the store, says Knuton, a man in a pick up truck drove up and offered to sell him Miller High Life Beer. Knuton purchased three cases of the beer for $9.00. Knuton then took two six packs and placed them in the case so they would become cool enough to drink and put the remainder on the floor of the licensed premises with the rest of the beer. Knuton then drank 10 to 12 bottles during the remainder of the day and gave 6 to 8 bottles away to friends. During this time the licensees' son was present along with some customers but neither of the licensees were present themselves.

   
   

   CONCLUSIONS OF LAW

   
   

5. There was no evidence introduced sufficient to establish that the licensees personally violated the law. There was no evidence introduced sufficient to establish that the Miller High Life beer was stolen property as alleged in the third charge and it is therefore concluded that DABT has failed to establish the allegations of the third charge.

   
   

6. The beer was purchased by Mr. Knuton for his personal consumption and hence was not possessed for the purpose of sale or resale. Accordingly, DABT has failed to establish the second charge.

   
   

7. There remains for consideration the charge that licensees' agent, servant or employee unlawfully possessed an alcoholic beverage without having complied with the requirements for payments of excise taxes in violation of Section 562.01, Florida Statutes.

   
   

8. The evidence clearly establishes that Mr. Knuton, who was performing clean up work on behalf of the licensees, did possess non-Florida tax paid alcoholic beverages. However, the question of whether the licensees should be penalized under these circumstances is controlled by the reasoning in the case of Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962) wherein the Court, relying upon the decisions of Cohen v. Schott, 48 So.2d 154 (Fla. 1950), and Trader Jon, Inc. v. State Beverage Department, 119 So.2d 735 (Fla. 1st DCA 1960) states that before a license can be suspended or revoked for a violation of law on the

licensed premises a licensee should be found to have been culpably responsible for such violations through or as a result of his own negligence, intentional wrong doing or lack of diligence. In the instant case, there is no evidence to show culpable responsibility on the part of the licensees. The evidence is uncontroverted that Mr. Knuton's conduct in purchasing the beer for his own consumption was done without the knowledge or approval of the licensees. It is, therefore

RECOMMENDED that no action be taken against the licensees in this case. 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 The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Joseph S. Farley, Jr., Esquire

350 East Adams 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. 78-350

DABT NO. 3-77-41A

THREE STAR DINER, 26-1369, 2-COP,

3104 Myrtle Avenue, Jacksonville, Florida, L.C. and P.H. Williams,

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 the formal proceedings before the Hearing Officer on March 16, 1978, and the Recommended Order filed in the above-styled cause, noting that there have been no exceptions filed thereto, and find 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. However, after complete review of the record, the undersigned would make the following additional findings of fact:

   
   

   First, there is testimony of one John A. Zipperer, a detective with the Jacksonville Sheriff's Office, which is by itself, competent, substantial evidence that the case of beer found in the licensed premises, and introduced as Petitioner's Exhibit No. 3, was in fact stolen property. As additional support for this conclusion, the undersigned would note that one Edgar Newton, Jr., the individual who purchased the beer in question did so for a price so low -- $9.00 for three cases, containing seventy two (72) 12 oz. bottles -- that a reasonable person could reach no conclusion other than that the beer was stolen property.

   Therefore, I find that the case of beer introduced as Petitioner's Exhibit No. 3 is, In fact, stolen property.

   
   

   Secondly, the testimony of Mr. Edgar Newton, Jr., (referred to as "KNUTON" in the Recommended Order) reflects that he was, on the 18th of July, 1977, an agent, servant, or employee, of Respondent and while engaged in that capacity did purchase the beer in question and place it within the custody, control, and possession of Respondent on the licensed premises.

   
   

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 alleges violation of Section 562.01, Fla. Stat. (1977), pertaining to the unlawful possession of un-taxed bottles of Miller High Life Beer. There is substantial, competent evidence to support this allegation; therefore, the undersigned concludes that Respondent is in violation of the provisions of the 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 that the allegations are true and that Respondent is in violation thereof.

The third allegation asserts that on July 18, 1977, on the licensed premises, an agent, servant, or employee of Respondent did unlawfully receive, retain, dispose or aid in the concealment of stolen property, some 44 bottles of Miller High Life Beer, knowing it was stolen or under circumstances that would induce a reasonable person to believe it was stolen in violation of Section

812.013(1)(3), Fla. Stat. (1977) and thereby violating the provisions of the Beverage Law contained in Section 561.29, Fla. Stat. (1977). Having found as a matter of fact that there was substantial competent evidence to arrive at the conclusion that the beer in question was stolen property, and that Mr. Newton was an agent, servant, or employee of Respondent on July 18, 1977, and that the stolen property was within the possession, custody, or control of the licensee on the licensed premises, the undersigned concludes that the allegations are true and that Respondent is in violation thereof.

It is therefore upon consideration ORDERED that:

1. With respect to charges 1 and 2 which arise out of the same transaction and therefore merge, that Respondent/Licensees are hereby ordered to pay a civil penalty in the amount of $250.00 or have license no. 26-1369, 2-COP, suspended for a period of 10 days.

   
   

2. With respect to charge no. 3, Respondent/Licensee is hereby ordered to pay a civil penalty in the amount of $200.00 or have license no. 26-1369, 2-COP, suspended for a period of 8 days.

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 JOSEPH S. FARLEY, ESQUIRE,

350 East Adams 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: 78-000350

Orders for Case No: 78-000350