STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-1295

) JOEL ALBERT COLLINSWORTH d/b/a ) SILVER BULLET BAR AND LOUNGE )

)

Respondent. )

)

RECOMMENDED ORDER

This action came on for hearing before the Division of Administrative Hearings' duly designated Hearing Officer, Diane Cleavinger, on the 16th day of March, 1988, at DeFuniak Springs, Florida. The parties were represented by counsel:

For Petitioner: Harry L. Hooper

Deputy General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399

For Respondent: Respondent failed to appear either

personally or through his counsel of record

The issue involved in this case is whether the Respondent is guilty of the violation in the Notice to Show Cause issued the 13th day of January, 1988, by the Director of the Division of Alcoholic Beverages and Tobacco, in that he sold liquor for which he did not carry a license. The Notice to Show Cause was served on Joel Albert Collinsworth on January 20, 1988.

At the hearing, the Division of Alcoholic Beverages and Tobacco called Don Taylor and Roy Harris as witnesses and introduced 5 exhibits into evidence.

Petitioner also introduced ORI which was officially recognized as the current rule governing beer and wine licensing in Florida.

Respondent, Joel Albert Collinsworth, failed to appear either personally or through his counsel of record; and therefore no evidence was offered on his behalf.

FINDINGS OF FACT

1. At all times relevant to this case, Joel Albert Collinsworth held a valid Division of Alcoholic Beverages and Tobacco liquor license for the premises known as the Silver Bullet Bar and Lounge (hereinafter licensed premises), located at 12 North Ninth Street, DeFuniak Springs, Walton County,

   Florida. Petitioner's Exhibit 1. The license held by Respondent is number 76- 330, Series 2-COP and is limited to the sale of beer and wine on the licensed premises.

   
   

2. Investigator Don Taylor is a police officer with the DeFuniak Springs, Florida, Police Department. On Thursday, December 10, 1987, Investigator Taylor entered the licensed premises and seized glass containers of liquid that were marked as Petitioner's Exhibits 2, 3, and 4. The containers were only partly full. Investigator Taylor, has on many occasions, observed, smelled and tasted distilled spirits (and testified that the liquid was whiskey and not wine or beer.) Respondent, Joel Albert Collinsworth was on the licensed premises at the time Exhibits 2, 3, and 4 were seized and was immediately placed under arrest by Investigator Taylor.

   
   

3. The three (3) glass containers were taken to the Florida Department of Law Enforcement laboratory in Pensacola, Florida for testing and identification of the liquid contained in the three (3) bottles. The lab results shows that the liquid contained a high concentration of ethyl alcohol. Petitioner's Exhibit 5.

   
   

4. Investigator Roy Harris, an 18 year veteran of the Division testified that the concentrations of alcohol listed in Exhibit 5 were sufficiently high that they could not be anything other than distilled spirits.

   
   

5. The 2-COP license held by the Respondent allowed only consumption on the premises of beer and wine. The license does not permit possession, consumption or sale of distilled spirits on the licensed premises. The evidence showed that distilled spirits were being possessed and/or consumed on the premises owned and operated by Respondent under his beverage license. Such possession and consumption constitute a violation of Section 562.02, Florida Statutes.

   
   

6. Petitioner requested that Respondent's license be revoked for the violation of the Liquor Law. No mitigating facts were presented by Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes, (1985).

   
   

8. Section 562.02, Florida Statutes, provides that licensees shall not possess alcoholic beverages which are of a type not permitted to be sold by the terms of their license and further provides for revocation of a license should its terms be violated.

   
   

9. Rule 7A-1.013, Florida Administrative Code, sets forth the classification of licenses that may be issued. One of the classifications established therein is the 2-COP classification which provides for only the possession and sale of beer and wine on the licensed premises.

   
   

10. Respondent possessed alcoholic beverages on his licensed premises that were not permitted by his license classification and therefore his license should be revoked.

RECOMMENDATION

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

RECOMMENDED:

That Respondent is guilty of the offense set forth in the Notice to Show Cause issued on January 13, 1988, and that Petitioner should revoke the license of Joel Albert Collinsworth, d/b/a Silver Bullet Bar and Lounge.

DONE and ENTERED this 22nd day of July, 1988, in Tallahassee, Florida.

DIANE CLEAVINGER

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 22nd day of July, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1295

Petitioner's Proposed Findings of Fact contained in paragraph 1, 2 and 3 have been adopted in substance in so far as material.

COPIES FURNISHED:

Harry Hooper, Esquire Deputy General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

W. Paul Thompson, Esquire Post Office Drawer 608

DeFuniak Springs, Florida 32433

Lt. Tom Stout, District Supervisor

Division of Alcoholic Beverages and Tobacco

160 Governmental Center Suite 401, 4th Floor Pensacola, Florida 32501

Van B. Poole, Secretary Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Leonard Ivey, Director

Department of Business Regulation Division of Alcoholic Beverages

and Tobacco

The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 88-001295

Orders for Case No: 88-001295