STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-946

) LOIS DAVIS, d/b/a THE COTTON ) CLUB, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in West Palm Beach, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on April 14, 1981. Lois Davis appeared in propria persona.

APPEARANCES

For Petitioner: Daniel C. Brown, Esquire

725 South Bronough Street Tallahassee, Florida 32301

By Notice to Show Cause No. 30955-A, petitioner alleged that respondent on "or about November 18, 1980, . . . did have in [her] possession, . . . or allow . .

. ANDREA [sic] MOORE, to have in [his] possession on [her] licensed premises, alcoholic beverages, to wit[:] 52 miniature [sic] bottles, 20 50ml bottles, 102 200ml bottles, 33 500ml bottles, 17 750ml bottles, 5 4/5 battles, 4 1/2 pt. bottles, 25 10th battles, 2 pt. bottles, and 3 qt. bottles, not authorized by law to be sold under your license, contrary to F.S. 562.12, F.S. 562.12(1), and F.S. 561.29(1)."

FINDINGS OF FACT

1. Respondent Lois Davis, who does business under the name of The Cotton Club, holds License No. 60-00245, a Series 2-COP license issued by petitioner authorizing her to sell beer and wine for consumption on the licensed premises, which are located at 233 Southwest Fifth Street, Belle Glade, Florida. At one time Ms. Davis held License No. 60-576 which authorized sale of hard liquor as well as wine and beer for consumption on the premises of The Cotton Club. On January 25, 1980, as a result of foreclosure proceedings against respondent's landlords, an order was entered directing that "all right, title and interest to Alcoholic Beverage License 60-576" be conveyed to Mr. and Mrs. Robert Daniel. Robert Daniel, et ux. v. Gilbert Adams, et al. v. Lois Davis, No. 78-4667 CA (L) 01 G (Fla. 17th Cir.).

2. At the time respondent applied for her current license, shortly before the previous license expired, she asked that the latter be extended so that she could sell off her stock of hard or spirituous liquors. Petitioner's Lieutenant Little explained that the matter was before a court but agreed to approach the judge.

   
   

3. In September of 1980, L. Dell Grieve, a six-year veteran of the Belle Glade Police Department, visited The Cotton Club, saw liquor in a storeroom, and told the bartender that it should be removed. The bartender protested that it was all right to store the liquor while something was being worked out about the license, or words to that effect.

   
   

4. Beverage Officers Ramey and Rabie accompanied Officer Grieve on November 15, 1980, on a visit to The Cotton Club, where they found Andre Lavince Moore, respondent's son, tending bar. In the storeroom, they found numerous bottles of spirituous liquors which they confiscated. Petitioner's Exhibit No.

1. Wine and beer were stored in a separate place in the same storeroom.

   
   

   1. At no time after she lost License No. 60-576 did respondent or her agents or employees sell any alcoholic beverages other than wine or beer at The Cotton Club, or have any intention of doing so without petitioner's permission.

      
      

      CONCLUSIONS OF LAW

      
      

   2. Petitioner is authorized to take disciplinary action against licensees who violate Florida Law. Section 561.29(1), Florida Statutes (1979). It is unlawful for a licensee to possess "alcoholic beverages not permitted to be sold by his license with intent to sell or dispose of same unlawfully." Section 561.12(1), Florida Statutes (1979). Petitioner did not prove that respondent intended to sell or otherwise unlawfully dispose of the spirituous liquors confiscated at The Cotton Club.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner dismiss the administrative complaint.

DONE AND ENTERED this 14th day of May, 1981, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1981.

COPIES FURNISHED:

Daniel C. Brown, Esquire Lt. J. E. Little

725 South Bronough Street Post Office Drawer 2750 Tallahassee, Florida 32301 West Palm Beach, FL 33402

Lois Davis

The Cotton Club

233 Southwest Fifth Street Belle Glade, Florida

Docket for Case No: 81-000946

Orders for Case No: 81-000946