STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 79-1288

) (DABT NO. 33331-A) CARL BATES LYLE, t/a RED BARN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on July 20, 1979, at Room 702, Park Trammell Building, 1313 Tampa Street, Tampa, Florida.

APPEARANCES

For Petitioner: Mary Jo M. Gallay, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Carl Bates Lyle

Route 5, Box 2915

Port Richey, Florida 33568

ISSUE

This case concerns the Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, against Carl Bates Lyle, who trades as Red Barn. The claim of this case is that on February 26, 1979, Carl Bates Lyle, a licensed vendor, had in his possession, permitted or allowed someone else, namely, Jo Ann Lyle, his wife, to have in their possession, on his licensed premises, alcoholic beverages, to-wit: one sealed 4/5 pint of Kesslar American Blended Whiskey and three sealed miniatures of Black Velvet Blended Canadian Whiskey, which beverages were not authorized by law to be sold under his license and these acts were contrary to Section 562.02, Florida Statutes.

FINDINGS OF FACT

1. The facts reveal that on the morning of February 26, 1979, Beverage Officer Gary Luther Hodges went to the licensed premises of the Respondent, Carl Bates Lyle. Hodges was working for the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, and this agency had issued a series 2-COP license, No. 61-59, to Carl Bates Lyle, to

   allow him to sell beer and wine to be consumed on his licensed premises located on U.S. 19 in the vicinity of Hudson, Florida.

   
   

2. The purpose of the visit by Officer Hodges was to make a routine license inspection and, in addition, Officer Hodges had received a complaint that alcoholic beverages were being sold on the licensed premises that were not authorized to be sold under the authority of the series 2-COP license. Specifically, the complaint was that whiskey was being sold on the premises as opposed to beer and wine. During the course of the visit on the morning of February 26, 1979, Hodges spoke with the licensee, Carl Bates Lyle, and cautioned him about allowing whiskey on the premises. Lyle responded by indicating that patrons had possibly brought whiskey into the premises before, but denied responsibility on the part of the proprietor for having that whiskey on the licensed premises. After that conversation, Officer Hodges left the licensed premises.

   
   

3. Hodges subsequently returned to the licensed premises to retrieve some item which he had left at the premises. This return visit was around 3:10 p.m. on the same date as the first visit. At that time, the licensee was not in attendance. The premises was open end Jo Ann Lyle, the wife of the licensee, was in control of the premises. After Officer Hodges had entered the inside of the premises, he observed a paper bag which contents contained a pint of liquor and three miniature containers of liquor, of a category not authorized by the series 2-COP license. When questioned about the matter, Jo Ann Lyle indicated that this was liquor which she was taking to her house end which was located in the licensed premises by coincidence. By her remarks, it is evident that the liquor spoken of was in Mrs. Lyle's possession in the licenses premises.

   
   

4. The licensee came into the premises subsequent to that time and made no further explanation of why the liquor was on the premises, beyond that given by his wife.

   
   

5. The Respondent, Carl Bates Lyle, continues to hold license No. 61-59, series 2-COP, at present.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this cause.

   
   

7. The Respondent, Carl Bates Lyle, has been charged with violating provisions of Section 562.02, Florida Statutes, by the acts of his wife, Jo Ann Lyle, having in her possession a pint container of liquor and three miniatures of liquor, not authorized by law to be sold under Lyle's series 2-COP beverage license. Section 562.02, Florida Statutes, reads as follows:

562.02 Possession of beverage not permitted to be sold under license.--It is unlawful for a licensee under the Beverage Law or his agent to have in his possession, or permit anyone else to have in his possession, at or in the place of business of such licensee, alcoholic beverages not authorized by law to be sold by such licensee.

The facts in this cause demonstrate that Jo Ann Lyle, the wife of the Respondent, had in her possession alcoholic beverages, namely, a pint container

of liquor and three miniatures of liquor, which were not authorized to be sold in the licensed premises under the condition of license held by the Respondent, and this possession was in violation of Section 562.02, Florida Statutes.

Nevertheless, the Respondent did not directly violate that provision of law, have the direct knowledge of the violation of that provision of law and under these circumstances is not found to be in a position where he should have known of the violation. Consequently, the Petitioner has not proven that the Respondent has violated Section 562.02, Florida Statutes. This single violation on the part of the Respondent's agent, standing alone, is insufficient to establish the necessary proof of violation under the theory that the Respondent should have known of his wife's acts and been answerable for them.

RECOMMENDATION

It is recommended that this case against the Respondent, Carl Bates Lyle, trading as Red Barn, be DISMISSED.

DONE AND ENTERED this 10th day of August, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Mary Jo M. Gallay, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Carl Bates Lyle Route 5, Box 2915

Port Richey, Florida 33568

Docket for Case No: 79-001288

Orders for Case No: 79-001288