STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2934

) BENNIE L. TERRY, t/a TERRY'S ) CONFECTIONERY, )

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on December 22, 1983, in Jacksonville, Florida.

APPEARANCES

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

Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301

For Respondent: Mr. Bennie L. Terry

2715 Lippia Road

Jacksonville, Florida 32209 ISSUES

The Petitioner accuses Respondent of allowing his agent, servant or employee, Robert Terry, to unlawfully have in his possession, or permit or allow someone else to have in their possession on the licensed premises alcoholic beverages, to wit gin and whiskey not authorized to be sold under the license, in violation of Section 562.02, Florida Statutes.

FINDINGS OF FACT

1. At all times relevant to this case, Bennie L. Terry was the holder of license No. 26-2105, Series No. 2-APS, a license issued by the State of Florida, Division of Alcoholic Beverages and Tobacco, which allowed the sale of wine and beer for takeout, i.e., package sales only at the licensed premises in Jacksonville, Florida. A routine inspection was made of that premises on February 21, 1983, at 10:00 a.m. At that time, the license premises was open for business. Robert Terry, father of the licensee was in charge of the licensed premises on the date in question. In the course of the inspection, a

   200 milliliter bottle of gin was found in a cooler which was located in the bar proper. In addition, other gin and whiskey was found in the living quarters of Robert Terry, which is found within the diagram description of the extent of the

   licensed premises. Gin and whiskey are spirituous liquors not allowed for sale under the terms of the license held by Respondent.

   
   

2. By way of explanation, Respondent established that the whiskey and gin found in his father's bedroom was there for the benefit of a private club which held meetings in the licensed premises once a week. Respondent knew of the placement of the whiskey and gin in the bedroom and the conduct of the meetings and had allowed these matters to transpire. Subsequent to the date of the inspection, several other inspections have been conducted and no violations have been detected related to Respondent Terry's license.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57, Florida Statutes.

   
   

4. Respondent, through actions of his father as agent, servant or employee, had gin in the licensed premises in the cooler and gin and whiskey in the bedroom of his father in the licensed premises. The Respondent had given his father permission to store the gin and whiskey in the bedroom area. These matters being found in the licensed premises and a Series 2-APS license not allowing such possession, there is a violation of Section 562.02, Florida Statutes, which prohibits such possession on the premises of alcoholic beverages not authorized by law to be sold by the licensee. For this violation, Respondent is subject to the penalties set forth in Section 561.29, Florida Statutes.

Upon consideration of the facts found and the conclusions of law reach, it

is

RECOMMENDED:

That a final order be entered which imposes a civil penalty in the amount

of $250 for the violation established.

DONE and ORDERED this 19th day of January, 1984, in Tallahassee, Florida.

CHARLES C. ADAMS

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 19th day of January, 1984.

COPIES FURNISHED:

James N. Watson, Jr., Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Mr. Bennie L. Terry 2715 Lippia Road

Jacksonville, Florida 32209

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-002934

Orders for Case No: 83-002934