T. Carpenter. The parties were represented by:
APPEARANCES
For Petitioner: John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: No appearance by Respondent
This matter arose on Petitioner's Administrative Complaint/Notice to Show Cause issued against Respondent, which alleges the following:
On or about September 28, 1981 investigation revealed that, you, GERALD P. McGUIRE, SR., doing business as MOLLIE MAGUIRES, your agent, servant, or employee, did knowingly keep or store on your licensed premises, bottles pur- porting to be an alcoholic beverage which in fact is not such a beverage, offered for sale on your licensed premises, to wit: Seagrams VO
(7 Liters) , Seagrams Seven (11 Liters) , Seagrams Seven (one, 750 ML) , Cutty Sark (6 Quarts)
J & B Scotch (2 Liters) , Johnnie Walker Black Scotch (3 Quarts) , Johnnie Walker Red Label Scotch (2 Quarts) , Johnnie Walker Red Label Scotch (1 Liter) , DeWars White Label Scotch
(3 Liters) , Canadian Club (1 Liter) , in vio- lation of Florida Statute 562.061.
On or about September 28, 1981 investigation revealed that, you, GERALD P. McGUIRE, SR., doing business as MOLLIE MAGUIRES, your agent,
servant or employee, did reuse or refill with distilled spirituous liquors for the purpose
of sale, bottles or other containers which have once been used to contain spirituous liquors,
to wit: Seagrams VO (7 Liters) , Seagrams Seven (11 Liters) , Cutty Sark (6 Quarts) , J & B Scotch (2 Liters), Johnnie Walker Black Label Scotch
(3 Quarts) , Johnnie Walker Red Label Scotch (2 Quarts), Johnnie Walker Red Label Scotch
(1 Liter) , DeWars White Label Scotch (3 Liters) Canadian Club (1 Liter) , in violation of Florida Statute 565.11.
FINDINGS OF FACT
Respondent, Gerald P. McGuire, holds alcoholic beverage license number 39-675, 4-COP issued by Petitioner. On September 28, 1981, Petitioner's Beverage Officer entered the licensed premises of Respondent at 14975 N. Nebraska Avenue, Tampa, Florida. He advised the manager on duty, Mr. Gerald P. McGuire, Jr., that he intended to inspect the licensed premises. The manager did not object, and the inspection was conducted.
Petitioner's Beverage Officer observed numerous open bottles of alcoholic beverages in the dispensing area on which the stamps and labels were excessively worn. He therefore seized the open bottles listed above and, in conjunction with other beverage officers, performed field tests to determine whether or not the contents were adulterated. The field tests indicated that the contents of all bottles listed above had been adulterated.
Petitioner selected a sample of the seized bottles to be further tested by an independent chemical laboratory. The following sample was furnished to the laboratory:
Seagrams VO - (2 Liters) Seagrams Seven - (2 Liters) Cutty Sark - (2 Quarts)
Johnnie Walker Black Label Scotch - (1 Quart) DeWars White Label Scotch - (1 Liter)
J & B Scotch - (1 Liter) Canadian Club - (1 Liter)
Tests conducted by the independent laboratory established that the contents of each of the above samples was not that listed on the label.
CONCLUSIONS OF LAW
Section 561.29, Florida Statutes (i981) provides in part:
The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found
by the division upon sufficient cause appearing of:
Violation by the licensee or his or
its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the
laws of this state...
Section 565.11, Florida Statutes (1981) provides: Any person who shall reuse or refill with distilled spirituous liquors for the purpose
of sale a bottle or other container which has once been used to contain spirituous liquors, or any person who shall willfully misrepre- sent or permit to be misrepresented the brand of distilled spirits being sold or offered for
sale in or from any bottles or containers, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775. 083 and, when such person is licensed under this law, be subject to have his license revoked by the division. The possession of such a refilled or a mislabeled bottle or other container of spirituous liquors shall be prima facie evidence of the violation of this section.
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 li- censee knowingly to keep or store on the li censed premises any bottles which are filled or contain liquid other than that stated on - the label of such bottle.
The above provisions prohibit the holder of an alcoholic beverage license from offering for sale or even possessing mislabeled alcoholic beverage containers. Here, Respondent had such refilled and mislabeled alcoholic beverage containers on his licensed premises as charged in the Administrative Complaint/Notice to Show Cause. As a result of these violations, Respondent's alcoholic beverage license is subject to revocation under the above quoted provisions.
