STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-0330

) DALE'S PACKAGE STORE AND LOUNGE, ) INC., d/b/a ROADHOUSE INN, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing dated February 8, 1984, a hearing in this case was held before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, on April 6, 1984, in Jacksonville, Florida. The issue for consideration at this hearing was whether Respondent's alcoholic beverage license should be disciplined because of the misconduct alleged in the Notices to Show Cause filed herein.

APPEARANCES

For Petitioner: Louisa E. Hargrett, Esquire

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

For Respondent: Dale Eggers, President, pro se

Dale's Package Store & Lounge, Inc.

231 Blanding Boulevard Orange Park, Florida 32073

BACKGROUND INFORMATION

On June 24, 1983, two separate Notices to Show Cause were issued by Petitioner to the Respondent. The first alleged that Respondent conducted a lottery on its premises and offered lottery tickets for sale on May 13, 1983. The second alleged that on May 19, 1983, Respondent unlawfully sold an alcoholic beverage in a manner not permitted by its license. Thereafter, on July 20, 1983, the licensee signed a stipulation in proposed settlement of both cases which called for the licensee to accept a letter of warning. This stipulation was not accepted by Petitioner, as evidenced by the Director's signature on August 19, 1983. These cases were forwarded to the Division of Administrative Hearings by letter dated January 25, 1984.

At the hearing, Petitioner called Thomas L. Stout, its Jacksonville district supervisor and records custodian; Robert W. Cunningham and Wendell N. Reeves, both investigators in Petitioner's Jacksonville office; and introduced Petitioner's Exhibits 1 through 5. These exhibits, including a poster, loose tickets, a roll of tickets, and currency, were examined by the Hearing Officer at the hearing and left in Petitioner's custody and control for safekeeping.

Respondent called Mr. Stout as its witness, as well as Dale P. Eggers, corporate president. Mr. Eggers was qualified by the Hearing Officer to act as Respondent's representative at the hearing.

FINDINGS OF FACT

1. At all times pertinent to the issues considered at this hearing, Respondent, Dale's Package Store and Lounge, Inc., was issued 6-COP alcoholic beverage license No. 20-0012, which permits the on-premises consumption or sealed package sales of beer, wine, and liquor and the carry out sales of open malt or vinegar spirits, but not mixed drinks.

   
   

2. On May 13, 1983, Investigator Robert W. Cunningham visited the licensed premises based on an anonymous phone call he had received at home to the effect that a lottery was being conducted there. When he entered the lounge, he saw a poster sitting on the first table inside the door. This poster contained a list of items of merchandise or services to be given as prizes and a notation of the prices for tickets.

   
   

3. While he was looking at this display, he was approached by a patron, Edward Hanson, who asked if Cunningham wanted a ticket. When Cunningham said he did, Hanson went to the bar, where he spoke with Cindy, the bartender, and came back with a large roll of tickets, telling Cunningham to take as many as he wished. Cunningham took three and paid the $2 which the poster indicated was the price for the tickets. Half of each ticket was put in the box for the drawing.

   
   

4. After the ticket transaction, Cunningham went up to Cindy and asked her who was in charge. When told it was Mickey (Naomi Hunt), he went into the back room, where he found her and told her it was an illegal lottery that had to stop. He also talked at that time with Susan Roberts, a representative of the local Multiple Sclerosis Foundation chapter for whom the lottery was being conducted. Ms. Roberts advised Cunningham she had discussed the matter with one of the local assistant state attorneys, who said it was all right, but she could not recall his name.

   
   

5. Cunningham had advised Naomi Hunt to call Mr. Eggers initially, and Eggers said he would come down. Cunningham also called his district supervisor, Capt. Caplano, because, due to the size of the crowd in the bar at the time, between 200 and 250 people, he felt he needed a backup. Caplano agreed to come down to the lounge, as well. Caplano also advised Cunningham that the procedure was an unlawful lottery and the tickets and money should be seized.

   
   

6. When Eggers got there, he told Cunningham that the entire activity was for the benefit of the Multiple Sclerosis Foundation and that his employees had been out soliciting the donation of the prizes for months.

   
   

7. Respondent admits the conduct of the operation as the Roadhouse Inn's participation in the fund-raising campaign of the North Florida Chapter of the Multiple Sclerosis Foundation. Respondent has been approached by that agency

   with a kit of fund-raising activities and ideas. Before participating in the lottery, Mr. Eggers asked and was advised by both Ms. Hunt, his employee, and Ms. Roberts of the Foundation that they had inquired into and were advised of the project's legality. If the law was violated, it was done without criminal intent and without malice. A well-intentioned effort to do some good was in error.

   
   

8. It should be noted, however, that in January 1977, this licensee was cited by Petitioner's Agent R. A. Boyd for operating a bowling machine on the premises. If the customer bowled a high score on the machine, he or she would win something, such as a drink or a snack. This was considered gambling by Petitioner, however; and upon issuance of the citation, Respondent immediately stopped the activity. No charge was laid against the licensee for that activity.

   
   

9. Several days after Cunningham closed down the lottery, on May 19, 1983, Beverage Officer Reeves went to the licensed establishment based on a complaint received that alcoholic beverages were being served by the drink at the curb.

   He went to the drive-in window of the Inn and ordered a scotch and water from Naomi. She brought him a drink in a plastic cup. From his experience, he recognized the substance as scotch and water.

   
   

10. After getting the drink, he parked the car and went inside, where he talked with Naomi and Eggers. They indicated they did not know it was illegal to sell a drink this way. Eggers indicated at the hearing that he thought that since he could sell open beer drinks out the drive-in window, he could do the same with mixed drinks. He does not have any copy of the beverage laws, thought he was operating legally, and has been doing it without objection since 1977. Since Reeves' visit, the sale of distilled spirits by the drink through the window has ceased.

    
    

    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 Notice to Show Cause, Respondent is alleged to have conducted a lottery on its premises and sold lottery tickets, as well, in violation of Section 940.09(1)a) and (g), Florida Statutes (1981). The statutes alleged make it unlawful for any person to: "(a) Set up, promote, or conduct any lottery for money or for anything of value;" and "(g) Sell, offer for sale, or transmit . . . any lottery ticket

    
    

13. Here, the evidence clearly shows the conduct complained of did, in fact, take place and it does, in fact, constitute a violation of the statute as alleged which, therefore, subjects the licensee to discipline under Section 561.25, Florida Statutes (1981), for violation of any law of the state. The fact that no injury or potential injury to the public could occur by virtue of this misconduct is immaterial. Further, the purity of the purpose of the lottery is likewise immaterial under the current state of the law. It is also immaterial that Respondent's motives were good. Respondent broke the law in the furtherance of good. For this, he is subject to penalty.

    
    

14. A different situation exists regarding the allegation relating to the sale of the beverage in an unpermitted manner. Here, the license permitted the sale of beer and wine through the drive-in window, but not distilled drinks, and that is exactly what was done when the scotch and water was sold.

15. Section 562.12(1), Florida Statutes (1981), makes it unlawful to sell alcoholic beverages except as permitted by the license held. Section 562.452, Florida Statutes (1981), makes it unlawful to serve, by the drink, any intoxicating liquor, other than malt beverages of legal alcoholic content, by curb service. Consequently, licensee is guilty of a violation of these statutes and his contention he did not know the conduct was unlawful does not render this conduct any less lawful. If anything, it goes to the issue of penalty.

    
    

16. In that regard, a strong statement is considered necessary here on the quantum of penalty appropriate to the misconduct involved in the lottery for charity. Surely, revocation, suspension, or even a fine is not appropriate for this offense. As to the other, more severe action is appropriate, but again, neither revocation nor suspension of the license are considered appropriate in light of licensee's previously clean record.

    
    

17. The Petitioner has submitted a Proposed Recommended Order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDED ACTION

Based on the foregoing, it is, therefore, RECOMMENDED THAT:

Respondent be reprimanded for the conduct of the lottery and be fined 5100 for the unlawful sale of a mixed drink.

RECOMMENDED this 9th day of May 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 9th day of May 1984.

COPIES FURNISHED:

Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Mr. Dale Eggers, President

Dale's Package Store & Lounge, Inc.

231 Blanding Boulevard Orange Park, Florida 32073

Mr. Gary R. Rutledge Secretary

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

Mr. 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: 84-000330

Orders for Case No: 84-000330