STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3660

) MOSE COBB, JR., d/b/a DYNASTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing to the parties, dated June 20, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Jacksonville, Florida, on October 25, 1984.

APPEARANCES

For Petitioner: Harold F. X. Purnell, Esquire

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

For Respondent: Courtney Johnson, Esquire

215 Washington Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue for consideration at the hearing was whether Respondent's alcoholic beverage license issued by the State of Florida should be disciplined because of the misconduct alleged in the various charges listed in the Notice to Show Cause filed in this case.

PRELIMINARY STATEMENT

Sometime before November 8, 1983, the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT), issued a Notice to Show Cause to Respondent, Mose Cobb, Jr., alleging numerous violations of Chapter 561, Florida Statutes, including violation of the Sunday beverage laws; allowing minors under the age of 18 to patronize the premises; failing to reveal all individuals having an interest in the beverage license; and failing to notify DABT of a name change within 30 days. Respondent requested a formal hearing on the charges.

At this hearing, Petitioner presented the testimony of Captain Thomas L. Stout, commander of Petitioner's Jacksonville district office; Deborah K.

Powell, Hugh R. Hall, and Malcolm D. Adams, vice officers with the Duval County Sheriff's office; and John T. Lachman, a beverage agent with Petitioner's West Palm Beach office on loan to the Jacksonville office. Petitioner also introduced its Exhibits 1-20. Respondent presented no evidence.

Some or all of the parties have submitted post-hearing pleadings which include their position on the facts and the conclusions of law. These positions have been adopted herein only to the extent that they have been adopted in the Findings of Fact or Conclusions of Law which follow. If not contained herein whether expressly or in substance, they have been rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner held Florida 2- COP alcoholic beverage license number 26-2036, for his establishment, known as the Dynasty, located at 140 Soutel Drive, Jacksonville, Florida. This license was for the sale and consumption on premises of alcoholic beverages only. In addition, a license was issued by the City of Jacksonville to the Continental Club, c/o Grady Stroy, to operate a dance hall and night club at the same address. Respondent did not have a restaurant license or a license to operate any type of public food service establishment during the time in question.

   
   

2. On February 25, 1983, Respondent entered into an agreement in writing with three other individuals, Grady Stroy, John Gibson, and Bobby Wade, whereby each of these latter three would invest with Respondent for an equal partnership in the Continental Club. Thereafter, in April 1983, Respondent officially changed the name of his club from Dynasty to Continental Club. In reality, all three outside partners, Stroy, Gibson, and Wade, each invested at lest

   $3,000.00. At no time prior to the incidents involved in this hearing, did Respondent disclose to DABT that those three individuals had an interest in his beverage license nor did he notify Petitioner that the name of the club where his license was being used had been changed from Dynasty to the Continental Club.

   
   

3. Sometime after June 1983 and the incidents described herein, Respondent applied for a transfer of his license from himself along to himself and his above-named partners. For reasons not pertinent to this hearing, this application was denied.

   
   

4. On June 26, 1983, Deborah Powell, in response to a citizen's complaint that alcoholic beverages were being improperly sold on Sunday, entered the Respondent's establishment in an undercover capacity. She observed a table at the door at which admission charges were being collected, and when she got inside, she saw many people who she thought were underage being served what, to her, appeared to be alcoholic beverages. There is no evidence, however, that anyone under the authorized drinking age was drinking alcoholic beverages.

   
   

5. Those she looked for food being served and for some means of food preparation there, she found none in evidence. All she could find was a jar of sausages, a bun warmer, and some potato chips.

   
   

6. Section 412.402 of the Ordinance Code of the City of Jacksonville, Florida, in effect on June 26, 1983, a Sunday, permits the sale of alcoholic beverages for consumption on the premises only in motels or hotels having 100 or more guest rooms; properly licensed restaurants; airport lounges; fish camps;

   and private clubs. Respondent's establishment does not fall within any of the above permitted categories.

   
   

7. At approximately 9:30 that same night, other officers of the Sheriff's vice squad accompanied by DABT agents entered Respondent's club. When Officer Hall entered the crowded bar, he had the lights turned up and he and other officers began checking the driver's licenses of the patrons to insure they were of age. To do this, they set up a station at the door and had the patrons come out one by one. A check of the driver's license of each patron revealed 20 who were underage. These individuals' names, addresses, and dates of birth were recorded by Officers Hall and another.

   
   

8. The minors in the club at the time, who are listed in the charges pertinent to this hearing are:

   
   

   (1) Loraine Doles	DOB-Sep	19,	'65	age 17
   (2) Frederick A. Hayes	DOB-Nov	18,	'65	age 17
   (3) Terry L. Jones	DOB-Mar	18,	'65	age 17
   (4) Jocelyn F. Prince	DOB-Mar	15,	'66	age 17
   (5) Irene D. Reed	DOB-Jul	10,	'66	age 16
   (6) Yolanda D. Williams	DOB-Jul	24,	'65	age 17
   (7) Arabella Washington	DOB-May	25,	'67	age 16
   (8) Sandra D. Hodges	DOB-Nov	9,	'65	age 17
   (9) Ava M. Gardener	DOB-Aug	11,	'65	age 16

   
   

   In sworn written statements made to agent Lachman on July 7 and 8, 1983, in Jacksonville, all admitted to being in Respondent's establishment on June 26, 1983, but all deny purchasing or consuming alcoholic beverages while there.

   None was asked for identification or proof of age before being admitted. Respondent was present at the club at the time all this took place.

   
   

9. In a sworn voluntary written statement to agent Lachman on June 28, 1983, Respondent admitted that at the pertinent time in question he had a partnership with Stroy, Gibson, and Wade; that he had a dance hall license to operate his club issued by the city; that he did not have a restaurant license nor did he have the appropriate food preparation and serving equipment to permit him to lawfully sell alcoholic beverages on Sunday; and, that at the time in question, there were 16 to 20 persons under the age of 18 in the lounge.

   
   

10. This statement was objected to at the hearing by Respondent's counsel who contended that because Respondent was not given a proper warning of his rights to counsel and against self incrimination prior to making it, it was not admissible at the hearing. The statement, on its fact, reflects its voluntary nature and Mr. Lachman testified that while he did not fully advise Mr. Cobb of his right to remain silent, he did advise him that he could voluntarily make a statement. Full advice of a nature sufficient to support admission of an inculpatory statement in a criminal trial is not required to render such a statement admissible in an administrative hearing such as this. As an admission against interest, it is an exception to the rule excluding hearsay evidence and is admissible. It is corroborated as to the presence in the club of underage individuals by the written statements of those individuals which though themselves hearsay evidence, are admissible to explain or corroborate other admissible evidence such as here. In any case, Respondent offered no evidence to contradict or rebut any of the evidence offered by the Petitioner.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceedings.

    
    

12. In the first charge of the Notice to Show Cause, Petitioner alleges that on June 26, 1984, Respondent unlawfully sold alcoholic beverages on Sunday without having a restaurant license and without serving food. City of Jacksonville Municipal Ordinance number 412.402 permits the sale of alcoholic beverages on Sunday only by, inter alia, restaurants properly licensed by the Florida Hotel and Restaurant Commission and then, in connection with the sale of food. A restaurant must derive the majority of its annual gross income from the sale of food prepared, sold, and consumed on the premises.

    
    

13. The sole evidence of food in Respondent's establishment was a jar of sausages and some potato chips. Respondent is not licensed as a restaurant and does not fit any of the permitted categories under the ordinance. Consequently, he is in violation of that ordinance and also of Section 561.29, Florida Statutes, which, as Subsection (1)(a) permits discipline of an alcoholic beverage license for any:

    
    

    Violation by the licensee . . . of any laws of this state or of the United States, or violations of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages . . .

    
    

14. In the second through eleventh charges of the Notice to Show Cause, Respondent is alleged to have unlawfully allowed persons under 18, unaccompanied by a parent or guardian, to patronize his premises licensed as a dance hall. Section 561.48, Florida Statutes, makes it a misdemeanor for the operator of a dance hall where alcoholic beverages are sold to knowingly permit anyone under

    18 who is not accompanied by a parent or guardian, to patronize, visit, or loiter in such premises. Here, with the exception of charge 2, relating to Tolisia E. Jones, the evidence clearly indicates that all of the other individuals named were permitted to enter and remain in the establishment where alcoholic beverages were being served, and that Respondent knew of this and condoned it. As to Ms. Jones, there was no evidence to show that an individual with that name and birthdate was in the establishment on June 26, 1983.

    
    

15. The evidence also clearly shows that Respondent entered into the partnership with Stroy, Gibson, and Wade in April 1983 and as of June 28 of that year, had failed in any particular to notify DABT of the identity of his partners who had bought an interest in his license as required by Section 561.17, Florida Statutes. Also, since Respondent changed the name of his club as early as February 1983 when he entered the partnership agreement, and had not notified DABT of this change by June 28, 1983, more than 30 days later, this constitutes a violation of Section 561.33(2), Florida Statutes. Both of the above are also violations of Section 561.33(2), Florida Statutes. Both of the above are also violations of Section 561.29(1)(b), Florida Statutes.

RECOMMENDATION

In light of the fact that this series of incidents constitutes the first recorded or reported instance of disciplinary action, severe penalty is not indicated.

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that the Respondent, Mose Cobb, Jr., be fined $250.00 for each of the twelve violations established, for a total of $3,000.00, and that his 2- COP alcoholic beverage license, number 26-2036, be suspended for six months.

DONE AND ENTERED this 13th day of November 1984 in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of November 1984.

COPIES FURNISHED:

Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Courtney Johnson, Esquire

215 Washington Street Jacksonville, Florida 32202

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: 83-003660

Orders for Case No: 83-003660