Opinion
No. GG-309.
March 6, 1979. On Rehearing May 1, 1979.
Appeal from Order of the Department of Business Regulation, Division of Beverage — Original Jurisdiction.
Harry Katz, Jr., of Katz Katz, Jacksonville, for appellant.
Dennis E. LaRosa and Charles T. Collett, Tallahassee, for appellee.
Affirmed upon authority of G B of Jacksonville, Inc., d/b/a Out of Sight v. State of Florida, Department of Business Regulation, Division of Beverage, 371 So.2d 139 (Fla. 1st DCA 1979), Case No. GG-305, Opinion filed February 21, 1979, and G B of Jacksonville, Inc., d/b/a The Harem v. State of Florida, Department of Business Regulation, Division of Beverage, 371 So.2d 137 (Fla. 1st DCA 1979), Case No. GG-311, Opinion filed February 21, 1979.
MILLS, Acting C.J., MITCHELL, HENRY CLAY, Jr., Associate Judge and SMITH, J., concur.
ON MOTION FOR REHEARING
By motion for rehearing, petitioner correctly brings to our attention that we overlooked and failed to consider our previous opinions rendered in G B of Jacksonville, Inc., d/b/a Out of Sight v. State of Florida, Department of Business Regulation, Division of Beverage, 366 So.2d 877 (Fla. 1st DCA 1979), and G B of Jacksonville, Inc., d/b/a The Climax v. State of Florida, Department of Business Regulation, Division of Beverage, 382 So.2d 1227 (Fla. 1st DCA 1979), wherein a single employee committed a single offense. This Court concluded that such activity was insufficient to charge the employer under authority of Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). One single violation by an employee does not constitute a persistent or recurring activity, as contemplated by Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962).
Therefore, the motion for rehearing is granted. Accordingly, we reverse with directions to the Director of the Division of Beverage, Department of Business Regulation to rescind its suspension of the license.
MILLS, Acting Chief Judge, concurs.
SMITH, ROBERT P., J., dissents.