Judges: ROBERT T. BENTON, II
Agency: Department of Business and Professional Regulation
Latest Update: Nov. 17, 1978
Summary: Respondent is not culpably responsible in delivery to unlicensed premises made by employee for corporation. Culpable responsibility would mean knowledge of act by officer. Dismiss.
78-1805.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DIVISION OF ALCOHOLIC )
BEVERAGES AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 78-1805
) DABT NO. 33463-A CLIFFORD DISTRIBUTING COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Fort Lauderdale, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on October 24, 1978.
APPEARANCES
For Petitioner: Mary Jo M. Gallay, Esquire
Staff Attorney
725 South Bronough Street Tallahassee, Florida 32304
For Respondent: Mr. Bernard Bernstein
By notice to show cause dated April 25, 1978, petitioner alleged that respondent sold beer to Aki-San Japanese Restaurant, Inc. (Aki-San) on October 25, 1977, on November 2, 1977, on November 21, 1977, and on December 30, 1977, even though Aki-San had failed to renew its "alcoholic beverage license for the 1977-78 license year until January 16, 1978, contrary to F.S. 562.12, to wit
561.14."
FINDINGS OF FACT
Aki-San held an alcoholic beverage license which expired October 1, 1977. Only on January 10, 1978, did Aki-San make application for "delinquent renewal" of its license. In the unlicensed interim, one of respondent's truckdrivers continued to deliver Kirin beer to Aki-San. At all pertinent times, respondent was licensed as a distributor of alcoholic beverages.
Respondent employs numerous truckdrivers to distribute alcoholic beverages to some 2,000 licensees under the beverage law. Each driver has a route book containing the license number of each of the customers for which he is responsible. The truck drivers have standing instructions to insure, before delivering alcoholic beverages, that the licensees they serve have renewed their licenses for the year. Posted on a bulletin board on respondent's premises, in October of 1977, was a notice reminding the drivers to ascertain whether their customers' licenses had been renewed.
CONCLUSIONS OF LAW
Respondent's license authorizes it "to sell and distribute alcoholic beverages at wholesale to persons who are licensed to sell alcoholic beverages," Section 561.14(2), Florida Statutes (1977), but does not authorize it to sell alcoholic beverages to persons who are not so licensed. Section 562.12, Florida Statutes (1977), makes it a misdemeanor for "any licensee to sell alcoholic beverages . . . in any matter except that permitted by his license." Section 561.29, Florida Statutes (1977), authorizes petitioner to take disciplinary action against the license of any licensee guilty of this or any other offense against the laws of Florida.
Where it is the employee of a licensee who violates the law, however, the law authorizes disciplinary action against the license only where the licensee is "found to have been culpably responsible for such violation through or as a result of his own negligence, intentional wrongdoing or lack of diligence." Taylor v. State Beverage Department, 194 So.2d 321, 325 (Fla. 2d DCA 1967), Accord, Cohen v. Schott, 48 So. 154 (Fla. 1950); Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). In the case of a corporate licensee, "culpable responsibility" of an officer of the corporation must be demonstrated.
No evidence was adduced in the present case to show that respondent had sold any other unlicensed person alcoholic beverages at any time since it obtained its wholesaler's license. Petitioner did not in any other way demonstrate negligence, intentional wrongdoing or a lack of diligence on the part of respondent's management.
RECOMMENDATION
Upon consideration of the foregoing, it is RECOMMENDED:
That petitioner dismiss the notice to show cause issued in this case.
DONE and ENTERED this 17th day of November, 1978, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Clifford Distributing Company 990 S.W. 21st Terrace
Ft. Lauderdale, Florida
Mary Jo M. Gallay Staff Attorney
725 South Bronough Street Tallahassee, Florida 32304
Docket for Case No: 78-001805
Orders for Case No: 78-001805
| Issue Date |
Document |
Summary |
|
Nov. 17, 1978 |
Recommended Order
|
Respondent is not culpably responsible in delivery to unlicensed premises made by employee for corporation. Culpable responsibility would mean knowledge of act by officer. Dismiss.
|
