STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF BUSINESS REGULATION, DIVISION ) OF ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3407

) CHARLES J. EVANS and INEZ P. ) HAMER, t/a NEZZERS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in this cause on April 13, 1984, at Ocala, Florida.

APPEARANCES

For Petitioner: Thomas L. Barnhart, Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondents: Reginald Black, Esquire

Post Office Box 2045 Ocala, Florida 32678

By Notice to Show Cause dated August 17, 1983, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend, or assess a civil penalty against the license of Charles J. Evans and Inez P. Hamer, t/a Nezzers, Respondent. As grounds there for it is alleged that on or about July 13, 1983, Respondent's employee, Marjorie Hamer, permitted persons to play pool for money on the licensed premises.

At the commencement of the hearing the parties stipulated that Respondent holds beverage license No. 52-00669. Thereafter, Petitioner called three witnesses, Respondent called three witnesses, and three exhibits were admitted into evidence. A description of Exhibit 1, which consisted of two $10 U.S. bills and one $5 bill of United States currency, was substituted for the physical objects.

Proposed findings submitted by the parties which are included herein are adopted; otherwise, they are rejected as not supported by the evidence or unnecessary or immaterial to the results reached.

FINDINGS OF FACT

1. Charles J. Evans and Inez P. Hamer, t/a Nezzers, hold beverage license No. 52-00669 and held this license at all times relevant hereto.

   
   

2. On July 13, 1983, Beverage Agents Brown and Rozar, following up on a complaint of gambling at Nezzers, visited Nezzers around 7:30 p.m. It was a quiet night in the bar. Upon entry they observed two men playing pool at Table A (Exhibit 2), which is the nearest to the bar of the four pool tables in the room. Table A is a time table and the players pay based on the time the table is used. The other three tables are coin tables which are activated for play by depositing $.50 in coins in the table for each game.

   
   

3. Brown and Rozar each bought a beer and commenced playing pool on Table D (Exhibit 2). Some 15 to 30 minutes later two other men started playing pool at Table B (Exhibit 2). At this time, in addition to the six pool players, the only people in the bar were the bartender, Marjorie Hamer, and two or three other patrons.

   
   

4. Brown and Rozar observed the men at Table B, later identified as Valencourt and Mosely, flip a coin to see who would break. Thereafter, the agents several times observed Valencourt and Mosely exchange money at the conclusion of a game. One would toss a bill on the pool table and the winner [presumably] would pick it up and put it in his pocket. Hayman and Foreman playing at Table A were overheard to say one or the other was "one down" or "two down" and were seen putting a bill on the end of the bar away from the cash register from where it was picked up by the other player. On several occasions the players were observed getting change from Marjorie Hamer.

   
   

5. Table A is closer to the bar than to Table D. Accordingly, Marjorie Hamer, setting behind the bar, was in as good or better position to observe the exchange of money as were agents brown and Rozar. Marjorie Hamer, the 22-year- old daughter of Inez Hamer, has worked at establishments dispensing alcoholic beverages and is generally familiar with beverage laws prohibiting gambling at a licensed establishment.

   
   

6. Two large signs are conspicuously posted in the room which say "NO GAMBLING."

   
   

7. On July 13, 1983, neither of the owners was present during the time the agents were in Nezzers. Inez Hamer had worked until 6:00 p.m. when she was relieved by Marjorie. Marjorie had earlier told her mother that she did not feel well and would like not to come in on July 13, but Inez told her it would be a quiet night without much business and Marjorie came in.

   
   

8. Marjorie Hamer concurred with the testimony of Brown and Rozar that there were three pool tables occupied and few other people were in the bar. Marjorie spent most of the evening reading the paper and testified she did not see any of the pool players give money to his opponent at the end of a game or overhear any conversation that would lead her to believe gambling was going on.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

10. Respondents are here charged with a violation of Section 561.29(1), Florida Statutes, which authorizes the Division of Beverage to revoke or suspend the license of a licensee upon a showing of violation by the licensee, his or its agents, officers, servants, or employees of the laws of this state, or permitting another on the licensed premises to violate any of the laws of this state.

    
    

11. At the time of the incidents which led to the charges here preferred, neither of the licensees was on the premises. No evidence was presented that other acts of gambling had occurred while a licensee was on the premises or that the licensee had, or should have had by the exercise of due diligence, knowledge of such gambling. It is by the allegation that an employee of the licensee knew, or should have known by the exercise of due diligence, that gambling was occurring on the evening of July 13, and permitted such violation of law to occur, that Petitioner attempts to impute such failure to the licensee.

    
    

12. These facts are substantially different from those involved in G & B of Jacksonville, Inc., d/b/a Out of Sight v. State of Florida, Department of Business Regulation, 366 So. 2d 877 (Fla. 1st DCA 1979) although there are some similarities. In G & B an employee of the licensee on one occasion offered to commit or engage in prostitution with a patron; here the employee did not engage in any unlawful act. In G & B the unlawful act was the one single violation alleged; here the unlawful act was alleged on a single occasion. In G & B the court held there was no evidence the licensee was culpably responsible for the alleged violation as a result of his own negligence, intentional wrongdoing, or lack of diligence; here Petitioner alleges the lack of diligence on the part of an employee, in failing to observe and stop the gambling, imputes to Respondent culpability for the unlawful acts.

    
    

13. Even if Respondents could be found guilty as charged had the employee actually observed the gambling and permitted it to continue, here the employee's testimony that she was unaware of the gambling at the pool tables was rebutted only by her proximity to the gambling from where she could have seen the gambling.

    
    

14. As stated in Woodbury v. State Beverage Department, 219 So. 2d 47 (Fla. 1st DCA 1969):

    
    

    These cases and others cited therein have made it clear that a liquor licensee is not an insurer against violations of law committed on his premises by and through his employees.

    
    

15. It may be said with stronger conviction that a licensee is not an insurer against violations of law committed on his premises by a patron. Signs prohibiting gambling were conspicuously placed in the establishment where they were easily viewed from the pool tables.

From the foregoing it is concluded that Petitioner failed to prove by clear and convincing evidence, or even by the lesser standard of preponderance of the evidence, that Respondent permitted patrons on the licensed premises to violate the laws of this state by gambling at pool. It is

RECOMMENDED that a Final Order be entered finding Respondents not guilty as alleged and these charges be dismissed.

ENTERED this 25th day of April, 1984, at Tallahassee, Florida.

K. N. AYERS 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 25th day of April, 1984.

COPIES FURNISHED:

Thomas L. Barnhart, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Reginald Black, Esquire Post Office Box 2045 Ocala, Florida 32678

Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

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

Docket for Case No: 83-003407

Orders for Case No: 83-003407