Judges: CHARLES C. ADAMS
Agency: Department of Business and Professional Regulation
Latest Update: Jan. 24, 1984
Summary: The issues in this instance are presented through a Notice to Show Cause/Administrative Complaint, in which the Petitioner accuses Respondent, Mary Hordge, through actions of her agent, servant or employee, Mary Donnovan, of unlawfully selling alcoholic beverages in a manner not permitted by the license, namely the sale for consumption on-premises under the package sales license, contrary to Section 562.12, Florida Statutes.Dismiss. There was no proof employee was in fact an employee and open b
Summary: The issues in this instance are presented through a Notice to Show Cause/Administrative Complaint, in which the Petitioner accuses Respondent, Mary Hordge, through actions of her agent, servant or employee, Mary Donnovan, of unlawfully selling alcoholic beverages in a manner not permitted by the license, namely the sale for consumption on-premises under the package sales license, contrary to Section 562.12, Florida Statutes.Dismiss. There was no proof employee was in fact an employee and open beer can does not prove consumption on package premiums was taking place.
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83-3033.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DIVISION )
OF ALCOHOLIC BEVERAGES AND )
TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 83-3033
)
MARY E. HORDGE, t/a )
MARY'S RESTAURANT )
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 South Bronough Street Tallahassee, Florida 32301
For Respondent: Johnny L. Holmes
c/o Mary's Restaurant 608 Davis Street
Jacksonville, Florida 32209
ISSUES
The issues in this instance are presented through a Notice to Show Cause/Administrative Complaint, in which the Petitioner accuses Respondent, Mary
Hordge, through actions of her agent, servant or employee, Mary Donnovan, of unlawfully selling alcoholic beverages in a manner not permitted by the license, namely the sale for consumption on-premises under the package sales license, contrary to Section 562.12, Florida Statutes.
FINDINGS OF FACT
Mary E. Hordge, referred to in the Administrative Complaint is the holder of License No. 26-2310, Series No. 2-APS. That type license allows the sale of beer and wine as package sales for consumption off-premises. On- premises consumption is not authorized by that license.
An inspection of the licensed premises was made on June 3, 1983. The licensed premises is in Jacksonville, Florida. The licensed premises was open for business on that date. When the inspector entered, Johnny L. Holmes, son of licensee and business manager of the licensed premises, was seated at a counter
and an opened can of Coors beer was on the counter in front of him. Another employee of the licensed premises at that time was one Mary Darwell, who is a cook in the licensed premises, and whose other responsibilities include clearing of tables in the bar area. No other conduct was observed related to alcoholic beverages.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Section 120.57, Florida Statutes.
Respondent is charged with a violation of Section 562.12, Florida Statutes, which states:
It is unlawful for any person to sell alcoholic beverages without a license, and it is unlawful for any licensee to sell alcoholic beverages except as permitted by his license, or to sell such beverages in any manner except
that permitted by his license; and any licensee or other person who keeps or possesses alcoholic beverages not permitted to be sold by his license, or not permitted to be sold without a license, with intent to sell or dispose of same
unlawfully, or who keeps and maintains a place where alcoholic beverages are sold unlawfully, shall be guilty of
a misdemeanor of the second degree, punishable as provided in s. 775.082 or 775.083.
The testimony does not reveal that anyone named Mary Donnovan, Mary Darwell or any other agent, servant or employee sold or intended to sell alcoholic beverages in a manner not permitted by the license. Nor is there any indication that the Respondent sold alcoholic beverages. The existence of the opened can of beer on the bar in front of the business manager does not reach the level of proof necessary to establish a sale of alcoholic beverages in the licensed premises without benefit of license, to be consumed on those premises. Consequently, no violation has been proven.
Based upon a consideration of the facts and the conclusions of law reached, it is recommended that a final order be entered which dismisses this case.
DONE and ENTERED this24th day of January, 1984, in Tallahassee, Florida.
CHARLES C. ADAMS
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 24th day of January, 1984.
COPIES FURNISHED:
James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Ms. Mary E. Hordge c/o Mary's Restaurant 608 Davis Street
Jacksonville, Florida 32209
Howard M. Rasmussen Executive Director Division of Alcoholic
Beverages and Tobacco 725 South Bronough Street
Tallahassee, Florida 32301
Docket for Case No: 83-003033
Orders for Case No: 83-003033
| Issue Date |
Document |
Summary |
|
Jan. 24, 1984 |
Recommended Order
|
Dismiss. There was no proof employee was in fact an employee and open beer can does not prove consumption on package premiums was taking place.
|
