STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 82-504

)

THANH THI GLADISH, )

t/a HIDEAWAY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R.T. Carpenter, on March 10, 1982. The parties were represented by:

APPEARANCES

For Petitioner: James N. Watson, Jr., Esquire

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

For Respondent: Earle Bennett, Esquire

2726 College Street

Jacksonville, Florida 32205 PROCEDURAL BACKGROUND

The case was prepared through an Administrative Complaint--Notice of Show Cause seeking revocation or suspension of Respondent's alcoholic beverage license number 26-560, or imposition of civil penalty, based on the following charges:

1. On or about the 15th day of December 1981, you, Thanh Thi Gladish, licensed under the beverage laws, and/or your agent, servant or employee did fail to maintain and display on each and every tap or spigot through which draft beer was being served, in plain view of the consuming public, the name of the beer being presently served through said tap or spigot, contrary to Section 563.03, Florida Statutes.

   
   

2. On or about the 15th day of December 1981, you, Thanh Thi Gladish, licensed

under the beverage laws, and/or your agent, servant or employee did knowingly and unlawfully sell or serve alcoholic

beverages, to wit: draft beer, represented to be Miller High Life, which in fact was not, contrary to Section 562.016, Florida Statutes.

FINDINGS OF FACT

1. On December 15, 1981, Petitioner's beverage officer conducted a routine inspection of Respondent's licensed premises. He found a draft beer keg with an embossed Anheurser-Busch label leading to a spigot at the bar labelled "Miller High Life".

   
   

2. Petitioner seized the keg and requested that Anheuser-Busch officials test the contents. Their brewers, who are trained beer tasters, established that the keg contained Anheuser-Busch and not Miller product.

   
   

3. The evidence was inconclusive as to whether the Respondent or the Miller beer distributor was responsible for the mix-up. However, there was no intentional deception by Respondent and the misrepresentation is determined to have been accidental.

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 562.061, Florida Statutes (1981), provides:

   
   

   It is unlawful for any licensee, his agent or employee knowingly to sell or serve any beverage represented or purporting to be an alcoholic beverage which in fact is not such beverage. It is further unlawful for any licensee knowingly to keep or store

   on the licensed premises any bottles which are filled or contain liquid other than that stated on the label of such bottle.

   
   

5. Violation of the above statute requires that a licensee "knowingly" sell or keep the miss-labelled beverage. Since Respondent did not have the requisite knowledge of the misrepresentation, Count 2 of the Administrative Complaint must be dismissed.

   
   

6. Section 563.03, Florida Statutes (1981), provides:

   
   

   Each and every tap or spigot through which draft beer is served shall, on the handle of such tap or spigot in plain view of the consuming public, display the name of the beer being presently served through such tap or spigot.

   
   

7. Respondent violated the above statute by serving Anheuser-Busch beer through the tap or spigot labelled Miller High Life. Unlike the previously discussed statute, this section does not require knowledge of the misrepresentation as an element of the violation. Respondent is therefore guilty as charged in Count I of the Administrative Complaint.

8. Subsection 561.29(1)(a), Florida Statutes (1981), provides that an alcoholic beverage license may be licensed premises. However, such violation(s) must have occurred with the licensee's knowledge or lack of diligence in supervising the beverage activities. Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). Here, there was no evidence of such knowledge of lack of diligence.

   
   

9. Subsection 561.29(3), Florida Statutes (1981), provides in part:

   
   

   (3) The division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, or any rule issued pursuant thereto not to exceed $1,000 for violations arising out of a single transaction. . . .

   
   

10. Under the above statute, Petitioner may fine Respondent up to $1,000 where, as here, a provision of the Beverage Law has been violated. There is no statutory or judicially established condition of licensee knowledge or lack of diligence as with license suspension or revocation. Since this was Respondent's first offense with respect to her alcoholic beverage license, a fine less than the maximum is appropriate.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty

of violating Section 563.03, Florida Statutes (1981), and imposing a civil penalty of $100.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of March, 1982.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1982.

COPIES FURNISHED:

James N. Watson, Jr., Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301

Earle Bennett, Esquire 2726 College Street

Jacksonville, FL 32205

Docket for Case No: 82-000504

Orders for Case No: 82-000504