STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DIVISION OF BEVERAGE, )
)
Petitioner, )
)
vs. ) CASE NO. 75-1563
) ANDREW JAMES and OCILLA JAMES, )
d/b/a BROWN'S BAR and PACKAGE ) STORE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before the undersigned hearing officer on September 24, 1975, at 1300 West Lee Road, Orlando, Florida.
APPEARANCES
For Petitioner: William A. Hatch, Esquire
Department of Business Regulation Division of Beverage
725 Bronough Street Johns Building
Tallahassee, Florida 32304
For Respondent: Ralph V. Hadley, III, Esquire
David, Hinson & Hadley, P.A.
200 West Welborne
Winter Park, Florida 32789 ISSUES
Whether or not on or about the 20th day of September, 1974, Ocilla James and/or Andrew James, their employee, their agent or servant and/or Willie
C. Brown, did sell and exchange for U.S. currency a quantity of narcotics, to wit: cannabis sativa, in violation of Florida Statute 561.29, by facts showing a violation of Florida Statute 893.13.
Whether or not, on or about the 28th day of September, 1974, Ocilla James and/or Andrew James, their employee, their agent or servant did sell and exchange for U.S. currency a quantity of narcotics, to wit: cannabis sativa, in violation of Florida Statute 561.29, by facts showing a violation of Florida Statute 893.13.
FINDINGS OF FACT
The Petitioner presented its case based upon the testimony of witnesses and the introduction of certain tangible evidence.
The initial witness by the Petitioner was Herb Baker, a Beverage Agent for the Florida Division of Beverage, so employed since July 1, 1966. This witness was the chief investigating officer for the Petitioner in developing the case upon which administrative charges in this action are founded.
The witness testified about a prelude to the investigation, which was a request made by the licensee, Andrew James, that the Winter Garden Police Department institute an investigation of alleged narcotic sales within the licensed premises at 850 E. Bay Street, Winter Garden, Florida. According to the witness, this investigation was commenced under the direction of Chief Donald Ficke, Winter Garden Police Department, and the effort was coordinated with a Sergeant Lowell (Stoney) Williams, also of the Winter Garden Police Department, together with the witness Baker.
In pursuit of the investigation, Officer Baker contacted Eugene Fogle, who was then a police officer with the City of Sanford, Florida. (Officer Fogle later indicated in the course of the testimony that he had worked with Agent Baker on many other occasions involving narcotic investigations.) Subsequent to the time of the investigation, Officer Fogle became a Beverage Agent and has continually been serving in that capacity to the time of the hearing. It was indicated that the application to become a Beverage Agent filed by now Agent Fogle was filed during the course of the investigation of the license premises herein. Furthermore, Agent Baker was involved in the background check which was made on the question of the qualifications of Agent Fogle.
The investigation which led to the charges under this administrative complaint commenced on or around July 19, 1974, and culminated in a certain search warrant which was served October 4, 1974, for the premises which is 850
E. Bay Street, Winter Garden, Florida.
Another person involved in the investigation was Nathaniel Brown, a confidential informant. The witness Baker indicated that Nathaniel Brown had been referred to him by one Irving Riffle. Nathaniel Brown was a black man who frequented the bar in question. Irving Riffle had at one time been a police officer and was, during the period of July, 1974, through October 4, 1974, the owner of a grocery store in the City of Winter Garden, Florida. Additionally, Irving Riffle, according to Officer Baker, assisted the Division of Beverage on various raids as a police officer, and also on three or four occasions had assisted Agent Baker by providing him with confidential informants. In this instance, Mr. Riffle was asked by the witness if he knew of anyone who could relate some information regarding narcotics, and Nathaniel Brown was provided. Nathaniel Brown provided information on the names of most of the alleged sellers in the bar, and also was the basis for approximately 14 or 15 capias which were issued on alleged activities originating from the bar or vicinity. When asked if he, Baker, thought that Nathaniel Brown was a reliable confidential informant, the witness indicated that he had no reason to believe that Brown wasn't reliable, although he had only used him on the one occasion.
On September 20, 1974, Baker met with Fogle at a school in the community for purposes of coordinating narcotics purchases to be made at Brown's Bar. Also in attendance at the meeting was Nathaniel Brown. During the course of the meeting Agent Fogle was instructed by the witness, Baker, to make purchases from behind the bar. The reason for this statement, according to the witness, Baker, was that Nathaniel Brown had told him that Andrew James was the biggest pusher in the area. The witness also indicated that he had heard that Andrew James was involved in narcotic sales, but he, the witness, did not appear
convinced by that hearsay. Agent Fogle and Nathaniel Brown left together from the school around 7:30 or 8:00 p.m. to go to the bar. Agent Baker followed and watched Fogle and Nathaniel Brown exit their automobile in the area of the bar and then disappear from sight. Then Agent Baker went to get Sergeant Stoney Williams at the Winter Garden Police Department.
Later in the evening of September 20, 1974, Baker testified that he met with Fogle and Fogle produced two manila envelopes which were turned over to Sergeant Williams of the Winter Garden Police Department. The witness looked in these envelopes to see what was in them and indicated a green leafy substance was in the envelopes.
Again on September 28, 1974, the witness indicated meeting Fogle, Sergeant Williams, a woman named Barbara Williams, and Nathaniel Brown at around 10:30 a.m. at the same schoolhouse. The witness stated that Fogle was instructed to make further purchases from behind the bar, because he felt that he wanted two people involved in any purchase from Andrew James to satisfy himself that Andrew James was, in fact, selling. To that extent the witness indicated that he saw Fogle, Barbara Williams, and Nathaniel Brown go to the bar and into a crowd which was milling around the front of the bar.
He and Sergeant Williams left the area because it was daytime and they did not want to be seen in their police vehicle. After leaving the area, they drove around and later rendezvoused with Fogle at which time another envelope was turned over to Agent Baker, which had allegedly been purchased from Andrew James. This evidence of September 28, 1974, was turned over to Sergeant Williams of the Winter Garden Police Department in the same way as evidence of September 20, 1974.
Prior to the purchases of September 20, 1974, which were, according to the witness, made from Andrew James and one Willie C. Brown, also known as Slim Brown, and the alleged purchase from Andrew James of September 28, 1974, all other purchases by Agent Fogle had been made under the general instruction to make purchases within the bar, as opposed to specifically purchased from people behind the bar.
The witness indicated that narcotics purchases were made with unmarked money and that Agent Fogle and Nathaniel Brown had been paid money for their services, and that no fingerprints were taken on any of the items of evidence which contained the alleged marijuana. Additionally, no other form or technique was used in the purchases, such as transmitters on the operatives, or a shakedown of Agent Fogle before going into the bar. As indicated by the witness, he did not shake down Agent Fogle because Fogle was a police officer.
The witness stated that Petitioner's Exhibit #1 was the item which contained the substance, which was indicated as being purchased from Andrew James, and that Petitioner's Exhibit #3 was an item which contained the alleged marijuana purchased from Slim Brown, both of the purchases on September 20, 1974. The witness further stated that Petitioner's Exhibit #6 was the alleged purchase of marijuana from Andrew James, which took place on September 28, 1974.
Agent Baker commented that there was a search warrant served on October 4, 1974, at the premises of the licensee's bar at 850 East Bay Street, Winter Garden, Florida. In the course of the search, he was involved in the search of the stockroom of the bar, but found nothing in the stockroom in the way of narcotics. He was not sure what was found behind the bar because he only
searched in the stockroom. He did indicate, however, that narcotics were found in the main part of the bar where the customers sit.
One other involvement with the premises in question was a routine investigation or inspection of the premises at a time prior to September 20, 1974, but within that same general time sequence, in which he found no Beverage Law violations on the premises. It was developed in the course of the testimony that the witness denied any statements being made to the licensee, to the effect that the licensee had had a clean record for some five years, and that it was time he, the licensee, had a few marks placed against his record.
A great deal of time was spent developing the relationship between the witness, Agent Baker, and Irving Riffle. The witness, Baker, commented about this by saying that his only business contacts with Riffle were in terms of buying meat from Riffle's store, and those matters already indicated above in the development of Agent Baker's testimony. Other items of note are that the witness indicated that he had spoken with Riffle on the evening that the search warrant was served, October 4, 1974, over drinks at the Quality Inn, which is located in Ocoee, Florida. Moreover, at a time when the man, Irving Riffle had been served with a subpoena in this cause, the witness, Baker, spoke with him on the phone and had lunch with him, at which time he indicated that he instructed Riffle that there was nothing to be concerned about and he should only come and tell the truth about the matter. On a second occasion the witness, Baker, met with Riffle's attorney at the attorney's office after a second subpoena had been sent to Mr. Riffle. On this occasion it was stated that nothing further occurred in the way of any commentary about possible involvement by Mr. Riffle in these matters at issue.
Finally, the witness, Baker, was not certain about whether the evidential items, to wit: the packets containing the alleged marijuana had been opened before being presented to him or were sealed, nor whether or not Agent Fogle saw him examine the contents of those items.
The next witness who testified for the Petitioner was Eugene Fogle, who is now with the Division of Beverage as a Beverage Officer I. He testified that he had worked with the Sanford Police Department of Sanford, Florida, for approximately three and one-half years before coming to work with the Division of Beverage. He said that he was contacted by Agent Baker and had some meetings about making drug buys in Brown's Bar. It was indicated through the witness that he had worked with Agent Baker on several other occasions before this instance. His undercover work in the bar was about once every weekend, but not necessarily every weekend during the time of the investigation. He stated that he made 30 to 35 purchases in the area of the bar and parking lot, and that the licensee, Andrew James, was always present in the bar or in the stockroom when the purchases were being made.
On September 20, 1974, the witness testified that he met with Agent Baker at the school in Winter Garden, Florida, and was instructed by Agent Baker to go to the bar and make purchases from persons behind the bar. He said he got to the bar between 7:00 and 7:30 and a purchase was made from Andrew James around 8:00. The witness testified that he went to the bar in the presence of Nathaniel Brown, who went in the bar with him. He ordered beer at the bar, went back to the table, and back to the bar again and asked if the licensee had any "smokes." The licensee went into the stockroom, came out with a manila envelope, for which he was given $5.00 after exchange of conversation, in which the witness asked, "how much" and was told "five dollars." The witness testified that he stayed in the bar for less than an hour and then went to the
Pizza Hut and made another purchase, and ultimately went to the Police Department in Winter Garden, Florida, where the evidence was turned over.
On the same evening, September 20, 1974, and in the same bar, a second purchase was made from one Willie C. Brown, also known as "Slim." This purchase was made by approaching the bar and asking for "smokes" for which Willie C. Brown reached in his pocket and gave a second manila package. This package was also ultimately taken to the Winter Garden Police Department.
After making the purchases, the first purchase from Andrew James was placed in his left jacket pocket and the second purchase from Willie C. Brown was placed in his right jacket pocket. The witness was shown Petitioner's Exhibit #1 which he indicated had his initials and was the item in which the substance he purchased from Andrew James was contained as relates to September 20, 1974. He was also shown Petitioner's Exhibit #3 which he said had his initials on it, and he indicated this was the purchase he had made from Willie
C. Brown on September 20, 1974.
Agent Fogle testified that he went home about 9:30 p.m. that evening, September 20, 1974, after leaving the Police Department.
He again met Agent Baker at the school on September 28, 1974, also in attendance was Nathaniel Brown and Barbara Williams. This rendezvous was in the morning of September 28, 1974. The witness indicated that he, Barbara Williams, and Nathaniel Brown went to the bar and that in the presence of Barbara Williams he made another purchase from Andrew James by asking for "smokes," much in the same way as before, and that the man Andrew James went back to the stockroom and got the substance known as marijuana, brought it back, and gave it to the witness in return for $5.00 in the same fashion as September 20, 1974. This package was placed in his left pocket and he stayed another 15 or 20 minutes, left and went to the Pizza Hut to make another purchase.
Nathaniel Brown was not at the table with Barbara Williams while he was making the purchase from Andrew James on September 28, 1974, although the witness did not know where Nathaniel Brown went within the bar. Likewise Nathaniel Brown went with him to the bar on September 20, 1974, but went to the juke box and was not sitting with the witness when he purchased marijuana from Andrew James and Slim Brown on the date of September 20, 1974.
The purchase from Andrew James on September 28, 1974, according to the witness, was turned over to Agent Baker and Officer Stoney Williams at a location a short distance from the school. The witness also identified Petitioner's Exhibit #6 as being the item purchased from Andrew James on September 28, 1974.
The witness Fogle indicated that "smokes" to him is a word which he refers to when he wants to purchase marijuana in these cases, but he did not recall anyone else in the bar using the word "smokes" to connote marijuana.
He did not know the Respondent, Andrew James, before conducting the investigation or making the alleged purchases of September 20, 1974, and September 28, 1974, but he indicated that Andrew James was the only small, older man in the bar during these occasions. He also stated that he was not acquainted with Willie C. Brown before making the purchase of September 20, 1974, or before commencing the investigation which surrounded the events of September, 1974.
He made the acquaintance of Nathaniel Brown during the course of the investigation.
His acquaintanceship with Barbara Williams came about by a certain investigation while working with the Sanford Police Department in the course of investigating a domestic matter between Barbara Williams and her husband. He later went out with Barbara Williams socially, to which Barbara Williams in her testimony indicated the social activity was to the extent of being intimate.
The witness indicated that the money was not marked in any of the transactions, and that he never examined any of the three items of evidence pertaining to the sales of September 20, 1974, and the sale of September 28, 1974. In other words, he bought these items believing them to be marijuana, but never examined the contents to determine what they were. This refers to Petitioner's Exhibits 1, 3 and 6.
The witness indicated that his application to become a Beverage Agent was made during the pendency of the investigation involving Brown's Bar.
His only knowledge of any connection of Irving Riffle with the case, was to the extent of one occasion in which Agent Baker and the witness were given a sandwich at Riffle's store.
In an effort to test the witness' knowledge of sales which took place in and around September 20, 1974, and September 28, 1974, certain questions were developed about sales made by Willie C. Brown to the witness on September 13, 1974, in the bar. The witness seemed to vacillate a great deal about whether or not such a sale took place on September 13, 1974, but ended up by saying that he did not recall that sale from Willie C. Brown in spite of a transcript of record in another proceeding which indicated to the contrary.
The Petitioner next called Barbara Williams, who works for Marriott Inn Flight Services, Sanford, Florida. She indicated in the time period around September, 1974, that she worked as an undercover agent with Officer Fogle, and on one occasion went to the bar in the morning hours. This was the only morning that she ever went to Brown's Bar, and for that reason she remembers the occasion, plus she remembers the 28th of September as being significant because her birthday is on March 28th. She testified that she met with Agent Fogle, Sergeant Williams, and Agent Baker on September 28, 1974, and went to the bar around 11:30 a.m. and sat at a table. Fogle went to the bar, brought two beers back to the table and talked to the people at the table for about an hour or so. She indicated that she saw Fogle approach the bar again after buying the two beers and saw Andrew James give a manila envelope to Fogle, saw money pass hands between those two parties, and Fogle brought the package to the table and showed it to her and placed it in his pocket. They then stayed 20 or 30 minutes and went to a dirt road where they met Agent Baker. When shown Petitioner's Exhibit #6, she indicated her initials were on the item and that this was the item which she saw purchased.
She remembers being in Brown's Bar on occasions other than September 28, 1974, and remembers it to have been three times that she was in the bar, but doesn't recall what instance September 28, 1974, was in the chronology of the three times.
The witness testified that she did not recall whether or not Agent Fogle looked into the bag that was purchased from Andrew James on September 28,
1974, but that she remembered that he usually looked to see what the contents were, and usually did this observation at the place of the purchase.
The witness indicated that after meeting Agent Fogle while he was working with the Sanford Police Department, she went to work in the capacity of an undercover agent some one or two months after that meeting. She also stated that she and Agent Fogle had been intimate, but it was not clear in her mind whether this was during the course of the investigation of Brown's Bar or some other time either before or after.
The witness stated to her knowledge no other purchases were made from behind the bar on other occasions other than the one time of September 28, 1974.
The Petitioner presented the witness Susan Brownless, who is a forensic chemist for the Florida Department of Criminal Law Enforcement at the Sanford Crime Laboratory. She is a supervisor of the chemist section. It was stipulated between the parties that she was qualified as an expert in the field of forensic chemistry and that she has the ability to identify the substance known as cannabis sativa, also known as marijuana. The witness was shown Petitioner's Exhibit #7, which is an envelope in which Petitioner's Exhibit #3 was placed after the laboratory had made their analysis of Petitioner's Exhibit #3. Petitioner's Exhibit #3 contained a substance which weighed 4.6 grams and was chemically and microscopically analyzed. The chemical analysis was the rapid modified dequenois levine test which proved to be positive in that the substance which weighed 4.6 grams was found to be cannabis sativa. Microscopic analysis of Petitioner's Exhibit #3 also proved that the substance was cannabis sativa. Then the witness was shown Petitioner's Exhibit #1, which had been placed in Petitioner's Exhibit #8 after completing an examination in the laboratory. Petitioner's Exhibit #1 was a green envelope which contained 4.7 grams by weight of a substance which was chemically analyzed using the rapid modified dequenois levine test, and this test proved positively that the substance was cannabis sativa. This item of evidence was also shown to have been cannabis sativa by microscopic examination.
This microscopic examination referred to in connection with Petitioner's Exhibit #3 and Petitioner's Exhibit #1 is a type of botanical identification according to the witness.
The witness indicated the average nickel bag, which is the amount of purchase associated with Petitioner's Exhibits #1 and #3, weighs 8 to 10 grams, and that the two bags which were Petitioner's Exhibits #1 and #3 were low weight bags and this is unusual. The extraneous material found in Petitioner's Exhibit #1 was 30 percent and Petitioner's Exhibit #3 was 45 percent, and the witness knows of no averages of extraneous material in this type purchasing.
The state next called Terrence Oestriech, who is a forensic chemist, and works for the Florida Department of Criminal Law Enforcement, Sanford Crime Laboratory, Sanford, Florida. Among the witnesses' educational qualifications is the achievement of a doctorate in his field. It was again stipulated between the parties that the witness, Terrence Oestriech, is a forensic chemist, who has the ability to identify the substance known as cannabis sativa, also known as marijuana. The witness was shown Petitioner's Exhibit #2, which is a clear package in which certain materials were placed when examination was completed by the witness of the Petitioner's Exhibit 6, which was a white envelope of which the contents were examined by the witness. The witness found 3 grams by weight of which 60 percent of the matter was extraneous material. The witness performed the rapid modified dequenois levine test, which proved positive that
the substance in Petitioner's Exhibit #6 was cannabis sativa. He also indicated certain microscopic examination of Petitioner's Exhibit #6, which again proved positive, in that the substance was cannabis sativa. This examination was the botanical identification referred to in the other chemist's examination of Petitioner's Exhibits #1 and #3. The witness, Oestriech, felt that the contents and gram weight of the Petitioner's Exhibit #6 was typical of a nickel bag purchase, meaning a $5.00 purchase; however, the witness felt that, the extraneous material was high, but not extraordinarily so.
Rather than call one of the prospective witnesses by the Petitioner, that witness being Sergeant Lowell (Stoney) Williams of the Winter Garden Police Department, the parties stipulated to the correctness of the chain of custody items of evidence which were handled by Sergeant Williams of the Winter Garden Police Department, and which were left in his care and custody during the course of the investigation. It was stipulated by the parties that the items of evidence had not been disturbed while in the care and custody of Sergeant Williams. Those items of evidence which had been in his care and custody were Petitioner's Exhibits #1, #3 and #6, as relate to the issues in the case.
The Petitioner presented exhibits numbered in sequence #1 through #8 for introduction into the record, and those exhibits were admitted over the objection of the Respondents' attorney. A complete statement of the objection as offered will be developed in later sections entitled EVIDENCE and CONCLUSIONS OF LAW. In the section entitled EVIDENCE, a complete list of the exhibits with a description of them will be given, together with a complete list and description of all Respondents' exhibits.
The Respondents' case was founded on the testimony of Andrew James and Ocilla James, in addition to other live testimony, together with written affidavits and letters, and an oral stipulation.
The Respondents produced Nathaniel Brown as a witness. Mr. Brown indicated that he was a customer at Brown's Bar and frequently went there, mostly everyday at present and in the past around September of 1974.
The witness testified that he did not know Eugene Fogle in terms of working with him in any narcotics investigation, but he did know him by sight. The witness stated that he knew Herb Baker by sight because someone had pointed out Herb Baker to him the night the bar was raided. Moreover, the witness indicated that he had never been with Eugene Fogle to Brown's Bar.
Nathaniel Brown testified that he had never seen Andrew James sell any marijuana, and as a matter of fact, at times, for instance on weekends, you could smell marijuana in the bar and he has seen Andrew James run the people out of the place, meaning the bar. The witness further stated that it wasn't very possible that he had been in the bar on Saturday morning, September 28, 1974, with Agent Fogle and Barbara Williams, because he was in the hospital in that time period and was in the hospital a couple of weeks.
The witness denied telling Agent Baker that Andrew James was the biggest drug pusher in west Orange County.
The witness said that he knew Irving Riffle, but that Irving Riffle had not introduced the witness to Herb Baker. He further stated that he knew Barbara Williams, but had not worked with her.
Nathaniel Brown stated that to his knowledge no one had broken into his home and put threats against his life on the mirror, but later on in that same examination agreed that someone had broken into his house and stolen his stereo, but stated that that wasn't last year. It was not clear whether he had changed his testimony on the question of anything being written on the mirror. On further cross examination, the witness said, "I don't know, not on this case" in response to a question as to whether there had been threats on his life about this case, speaking of facts surrounding Andrew James.
The next witness presented by the Respondents, who spoke to the issue of the matters in the bar, was one Willie C. Brown, a/k/a Slim Brown. Willie C. Brown works part-time at Brown's Bar at present, and was working there part-time in September, 1974. The witness said that in September, 1974, he worked there at night from 7:00 to 11:00 on Tuesday through Thursday, and 7:00 to 12:00 on Friday and Saturday.
The witness stated that he had not sold any marijuana to anyone in September, 1974; however, he apparently plead no contest or nolo contendre to charges arising out of an arrest for an offense on which the arrest was node on October 4, 1974. This plea was made with advice from counsel. In that connection the witness testified that he had been approached by Irving Riffle, who told him that Agent Baker said that the only way he could get out of his situation, meaning the witness, Willie C. Brown, was to take the witness stand and say Andrew James was selling marijuana. Willie C. Brown stated that he told Irving Riffle that he wasn't going to do that because Andrew James was not selling.
The witness testified that he had known Agent Baker for four or five years at the time of giving his testimony, and that he knew him from around Irving Riffle's store.
The witness said the only reason he knew Eugene Fogle was he saw him in court at the end of Andrew James' trial.
The witness indicated that Andrew James made an effort to keep marijuana out of his bar back in September, 1974. Willie C. Brown could offer no statement on the matters concerning September 28, 1974, because he stated he was not working on Saturday morning, September 28, 1974.
The Respondents also presented Chief Donald George Ficke, who is the Chief of Police of the Winter Garden Police Department, Winter Garden, Florida. He had been the Chief of Police since December 9, 1973. In July, 1974, or thereabouts, he indicated that Andrew James came to his office and discussed problems, such as firearms and narcotics in the bar, and requested that something be done about it. Chief Ficke indicated that he had contacted the Division of Beverage about conducting an investigation, and that he was assisted in this regard.
There was one investigation in early June, 1974. This investigation involved agents other than Agent Baker. The principal person involved in that investigation was one Jack Wallace of the Division of Beverage with a second person who was a sheriff's deputy from Seminole County, and another black Beverage Agent from Miami, Florida. To Chief Ficke's knowledge, this investigation did not result in any arrests, and results of the first investigation were not told to Andrew James.
The second, or subsequent, investigation in Brown's Bar was the one in which Agent Baker and Sergeant Stoney Williams of the Winter Garden. Police Department were involved.
This second investigation culminated in a search of the bar on October 4, 1974, under the authority of a search warrant, and this warrant far was executed under the witness' supervision. Before conducting the search, it was stated that certain security precautions were taken to insure that there was no leak of information about the search, and the witness felt relatively sure that there was not a leak. A search was commenced about 9:00 p.m. on October 4, 1974, and to the witness' knowledge, no marijuana or other narcotics was found in the cubbyhole in the back of the bar, which is also referred to as the stockroom. Moreover, to this witness' knowledge nothing was found in the entire bar, although he didn't see the film or report of the raid.
It was stated that there is a policy to keep notes and report of investigations, but there are no reports or notes available on this investigation due to some internal situation.
After the raid of October 4, 1974, had been completed, the witness testified that he and Agent Baker, Agent Fogle, and Sergeant Williams went to the Quality Inn in Ocoee, Florida to have a drink and they were there joined by Irving Riffle. Some other testimony was offered to the effect that although Riffle indicated he was on the way home from bowling and saw and recognized one of the cars in the parking lot, this witness checked to determine the accuracy of this comment and felt that statement of recognizing a car could not be accurate since it was impossible to do so from the highway.
The witness stated that he had found Andrew James to be a man of honesty, integrity and good moral character in his dealings with Andrew James, and he knew Andrew James as someone who could help him as Chief of Police and who gave him straight answers. He had been introduced to Andrew James through one Thomas Sewell (sic). Chief Ficke had testified for the defense in the course of the criminal court case involving Andrew James.
In terms of certain complaints about activities within the bar, the witness indicated that Andrew James had never provided names and dates to enable certain complaints to be sworn about the activities in the bar.
The co-licensee, Ocilla James, took the stand. She testified that she had been married to the Respondent in 1967 and prior to that marriage, she had been a partner with a Mr. Brown, who is deceased. From 1951 until 1962 she owned the bar with Mr. Brown, and no charges were placed against the bar in that time. At present, and during September, 1974, she had not been actively participating in the activities of the bar, therefore, had no knowledge of any of the circumstances about the bar's operation in September, 1974.
Andrew James was called to the stand and he testified that he had never been arrested before this incident. He worked in Brown's Bar before 1967 and he became a co-owner in that same year. He has had no prior violations of the beverage law.
He knows Agent Baker and indicated that Agent Baker had conducted an inspection of the bar at some time immediately preceding the October 4, 1974, search. During the course of the inspection, Andrew James indicated that Agent Baker told him that five years with no marks to his mind warranted having some marks. The witness said he indicated his displeasure with these kinds of
remarks on the part of Agent Baker. Specifically, the witness said that Baker told him that if he caught anybody in the parking lot, he would pin it on him, and the witness said, "I told him to go ahead and pin it on me."
The witness testified that he was in the bar on September 20, 1974, and September 28, 1974, but he did not sell any narcotics to Agent Fogle. He said that he knows Agent Fogle now because he has seen him in court. In connection with the activities of October 4, 1974, he indicated that a search was made of the bar, and that when the officers came to make the search, he offered to let them search in the stockroom, but they in fact only walked around. He also told them where they night search.
By way of clarifying the physical description of the window to the stockroom he indicated that they did not have any chicken wire around the cubby hole, that it was the window from which you could see out front, and that that window was about two feet square.
The witness said that in terms of providing names of persons in the course of the investigation that he had asked for, he admitted that he had not done that, but that on several occasions he had called the police to the bar.
By way of clarification, the witness stated that Slim Brown did not work for him on Saturday morning, but that Slim Brown did come to the bar on his off duty hours sometimes. Nevertheless, he felt that on this occasion back in September, 1974, that he, Slim Brown, normally worked on his other regular job on Saturday and would not have been in the bar.
Certain character witnesses were presented in behalf of Andrew James, among them was Raymond Lee Jones, Jr., of the Orange Federal Savings, Winter Garden, Florida. This witness is a City Commissioner of Winter Garden, Florida, and is also the President of the Orange Federal Savings of Winter Garden, Florida. He said that Andrew James' reputation in the community for truth, honesty, and integrity is excellent. He further stated that the licensee, Andrew James, has a mortgage with the Federal Savings. As a City Commissioner, he has friends in the black community, and several times has been outside the bar, but never inside the bar.
Mr. C. H. Johnson, the Mayor of Winter Garden, Florida, took the stand as a character witness for Andrew James. The witness indicated that he, the witness, had been in the community 8 years and has known Andrew James and knows that Andrew James has a reputation in the community for truth, honesty and good citizenship. He says that the Jameses are leaders in the community, and at one time Andrew James was on the Mayor's Advisory Commission. The witness admitted on cross examination that he was standing election in November, 1975, and would be interested in the support of the black population, which he says is less than
20 percent. He has been in the bar three or four times, and the last time was three weeks before the hearing. He went there on the last occasion to volunteer his services as a character witness when he heard about the license revocation hearing. In closing, the witness indicated that he had not volunteered to give his testimony for Andrew James just to get black votes. He also stated that the licensee had asked him for assistance on a question of narcotics within the bar, though James had never given him any names of persons he thought were involved in narcotics.
Theodore Vandeventer, Jr., Esquire, took the stand for Andrew James. Mr. Vandeventer had formerly been the City Judge of Winter Garden, Florida, and is now the Municipal Judge for the City of Oakland, Ocoee, and Windermere,
Florida. He was the City Judge of Winter Garden, Florida, until November, 1974. He says that Andrew James' reputation for honesty, integrity and general character is excellent and he has known Andrew James since becoming Municipal Judge in Winter Garden. James was in his court as a complaining witness on several occasions. He stated that these occasions involved certain disorderly conduct and assault and battery type reports, but did not involve narcotics violations.
Officer Fred Williams of the Winter Garden Police Department was called. He has been a policeman for approximately two years, he knows Andrew James, he has known him before he became a police officer and he knows him now. He knows his character and thinks he is honest and has integrity. Andrew James has a high reputation and is well thought of. He stated he would have to see the incident of a sale to believe that Andrew James had done it. A proffer was made upon testimony about overhearing a conversation between Riffle and Nathaniel Brown in which money was offered between Riffle and Nathaniel Brown. It was not admitted due to a ruling that the testimony was irrelevant.
Witness Inez Marie Wright, 3457 Janet Street, Plymouth, Florida, was called and she indicated that she worked at the Sunland Center with mentally retarded children. She takes care of children in the center, and she is a bar maid at Brown's Bar at this time, and was so on September, 1974. She works Friday and Saturday afternoons and holidays. She was working September 20, 1974, and the Respondent was there at the time. She indicated that on that day she did not see any manila envelopes sold by the Respondent Andrew James or any sold by Slim Brown to Agent Fogle or any other person.
She also stated that the Respondent tries to keep marijuana out of the place and if odd smoke is smelled, he goes and tells the people to leave. Additionally, Slim Brown tells them to leave and makes them do so. She testified that Andrew James never sold any marijuana or other drugs in the bar to her knowledge.
She has known Brown 21 or 22 years and had never known him to be anything less than honorable. She revealed that Andrew James is a friend, but not a close friend, that she works at his bar and has known him for a long time.
She said that she is not always behind the bar, that she works the floor and the bar.
She indicated she has seen Andrew James talk to police and then seen people leave out of the bar after those conversations. She has seen Andrew James call the police and the police come and the people leaving afterward.
The Respondents had certain other character evidence in the form of affidavits and letters which were admitted into evidence as Respondents' Exhibits #1 through #5. These items of evidence accompany this Recommended Order. Further development of the contents of those exhibits is developed under the section of the Recommended Order entitled EVIDENCE.
The Respondents tried to introduce the results of a polygraph test administered by one Richard Charles Bennett, Jr., and this evidence was not admitted due to objections by the Petitioner's counsel. A more complete statement of the reasons for refusing to admit this evidence will be set forth in the section entitled CONCLUSIONS OF LAW.
A proffer was made by counsel for the Respondents in which he indicated that nature and scope of the testimony of certain potential witnesses to wit: Clarence Jones, Alvin James, William Young, and Randall Porter. These witnesses were not allowed to testify and the statement of the reasons will be given in the section entitled CONCLUSIONS OF LAW.
An oral stipulation was made between the parties concerning the prospective testimony of one Thomas W. Zeigler (sic) of Winter Garden, Florida. Mr. Zeigler is the manager of Zeigler Furniture Company and if he had testified, he would have testified to the following facts:
On the date of the conclusions of the criminal case against the Respondent, Andrew James, which date was August 20, 1975, after 6:00 p.m., but before darkness set in, the witness drove past Irving Riffle's supermarket and at that time saw Agent Baker and Riffle out at that location. He drove by a second time, confirmed his identification of Baker. He has known both Agent Baker and Irving Riffle for some years.
Having related through a general summary the context of the testimony offered in the course of the hearing, in some instances it is possible to reconstruct the fine thread which is the statement of the actual facts in issue. However, in the case at bar, this reconstruction would not seem to be possible, due to the numerous inconsistencies within the positions of the parties through the medium of their witnesses. Therefore, after much deliberation, it is not obvious to the undersigned what the actual facts are in this case, and this causes the outcome to be in favor of the Respondents. A more specific recitation of the reasons for this conclusion of law will be set forth in the section entitled CONCLUSIONS OF LAW.
EVIDENCE
Exhibits #1 through #8 as offered by the Petitioner were admitted into evidence over the objection of the Respondents. The first objection stated was that there was insufficient predicate established for the introduction of the evidence, specifically that nothing was shown to have been in the three envelopes that were allegedly purchased which are Exhibits #1, #3 and #6, to wit: the small green envelopes and the white envelope. An additional objection was that Slim Brown was not shown to have been an employee of the licensee, Andrew James. Finally, the Respondents felt that it had not been established that Eugene Fogle purchased anything, because Fogle stated that he did not know what was in the envelopes he purchased from Andrew James and Slim Brown.
The following is a description of the evidential items:
Petitioners/State's #1, admitted into evidence is a small, green envelope which is also Exhibit #7 in the Ninth Circuit Court of Florida, in and for Orange County, Case
No. 74-2692.
Petitioners/State's #2, admitted into evidence is a clear envelope with contents which is also Exhibit #5 in the Ninth Circuit Court of Florida, in and for Orange County, Case No. 74-2692.
Petitioners/State's #3, admitted into evidence is a composite exhibit which contains a green envelope, a clear
rectangular bag, and a clear elongular shaped bag with contents.
Petitioners/State's Exhibit #4, admitted into evidence is a clear rectangular bag with an identifying tag which bag is Exhibit #1 in the Ninth Circuit Court of Florida, in and
for Orange County, Case No. 74-2692.
Petitioners/State's Exhibit #5, admitted into evidence is a card with the name Andrew James affixed, with an identifying tag, which card is Exhibit #K in the Ninth Circuit Court of Florida, in and for Orange County, Case
No. 74-2692.
Petitioners/State's Exhibit #6, admitted into evidence is a white envelope with contents, which is Exhibit #L in the Ninth Circuit Court of Florida, in and for Orange County, Case No. 74-2692.
Petitioners/State's Exhibit #7, admitted into evidence is a large manila envelope, which contains those items in Petitioners/ State's Exhibit #3, when they were brought
to the hearing.
Petitioners/State's Exhibit #8, admitted into evidence is a clear rectangular bag,
with a buff colored identifying tag, which bag is Exhibit #6 in the Ninth Circuit Court of Florida, in and for Orange County, Case No. 74-2692.
All items associated with Circuit Court Case No. 74-2692 cannot be forwarded with this Recommended Order because they are the subject of a protective order by the court in the referenced case. The balance of the items of the Petitioners/State's Exhibits numbers 1 through 8 are not forwarded because counsel for the Petitioner and counsel for the Respondents have not felt that this would be necessary under the existing circumstances. This latter position was made known to the hearing officer after discussing those remaining items which were not subject to the protective order of the Circuit Court in Case No. 74-2692. This discussion was between the Hearing Officer and the counsel for the Petitioner and Respondents.
The Respondents' exhibits which were admitted into evidence were as follows:
Exhibit #1, admitted, is an affidavit from one Thomas Sewell (sic), which accompanies this Recommended Order.
Exhibit #2, admitted, is an affidavit from one Thomas Zeigler, which accompanies this Recommended Order.
Exhibit #3, admitted, is a handwritten letter from one, Charles R. Nelson, which accompanies this Recommended Order.
Exhibit #4, admitted, is a typewritten letter from one, Barbara Lewis, which accompanies this Recommended Order.
Exhibit #5, admitted, is a typewritten
letter from one, L. Frank Roper, which accompanies this Recommended Order, absent certain deletions, as stipulated to by counsel for the Petitioner and Respondents.
CONCLUSIONS OF LAW
In the course of the Respondents' presentation, they produced the witness, Richard Charles Bennett, Jr., a polygraphist of the American Independent Polygraph Service, Inc., located at 3001 East Aloma Avenue, Winter Park, Florida. The testimony of this witness concerning his findings in a polygraph test administered to the Respondent, Andrew James, was not stipulated to by the Petitioner. Therefore, in consideration of the refusal to stipulate to the introduction of those findings by the polygraphist, it was ruled that these findings should not be admitted.
This ruling was based upon the premise that both in criminal and civil court matters, absent a stipulation for the introduction of such findings, they may not be utilized as evidence, and although some latitude may be afforded in requirements of evidence in an administrative proceeding, it was not deemed appropriate in this instance.
Argument on the issue was made on behalf of the Respondents' attorney, in which he indicated that his opinion was that Florida Statute 120.58(1)(a) would allow for the introduction of this testimony, in spite of the traditional standards which the courts have outlined in criminal trials. This position was founded on the language which says, "relevant collateral material, or unduly repetitious evidence shall be excluded, but all other evidence of a type, which will be relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida," reasonably prudent men in the conduct of their affairs," Florida Statute 120.58(1)(a).
The Petitioner took the contrary position, by asserting that this evidence was not a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.
The argument of Petitioner was accepted, because it is felt that the fact that certain organizations within the Orlando area relied upon these testing methods in the conduct of their affairs, was not sufficient precedent to establish a pattern of common reliance by the entire community, which is the meaning of the term "reasonably prudent persons."
Through a proffer made by the Respondents' counsel, it was indicated the nature and scope of the testimony which would be presented by certain witnesses, namely, Clarence Jones, Alvin James, Randall Porter, and William Young. The prospective testimony, which would have been elicited from those witnesses, concerned facts which were deemed to be irrelevant, immaterial and in some instances incompetent.
Effort by the Respondents' attorney to elicit testimony from the witness, Fred Wilson, about a conversation which he overheard between Irving Riffle and Nathaniel Brown was ruled to be irrelevant.
The objections stated by the Respondent to the introduction of Petitioner's Exhibits #1 through #8, based upon the fact that insufficient predicate had been established for the introduction of the evidence, because it
had not been shown what was purchased in the three envelopes contained alleged marijuana, was not well founded, in that sufficient predicate had been established for the introduction in terms of the contents of the three envelopes. The companion objection to the introduction of the Petitioner's Exhibits #1 through #8, on the basis that there was no showing that Eugene Fogle had purchased anything because Fogle did not indicate that he knew what was in the envelopes, is not well founded, since testimony revealed that those items were turned over through certain parties and ultimately placed with experts in the field of chemical analysis and found to be cannabis sativa.
The objection by the Respondent to the introduction of Petitioner's Exhibits #1 through #8, as it relates to evidence involving Slim Brown, a/k/a Willie C. Brown, because there was no showing that Slim Brown was an employee of the licensee Andrew James, is not well founded. An examination of the record reveals that there is sufficient testimony to make a prima facie showing that Willie C. Brown, a/k/a Slim Brown, was in fact an employee of the licensee Andrew James, both at the time such objection was made and most assuredly after Slim Brown had testified to such employment.
It is concluded that Petitioner's Exhibits #1, #3 and #6, to wit, the small green envelopes and white envelope, all contained cannabis sativa when tested.
It is concluded after a thorough and complete examination of the record, that the Petitioner has not met its burden of proof in showing that either Andrew James or Willie C. Brown, did on or about the 20th day of September, 1974, sell and exchange for U.S. currency a quantity of narcotics, to wit: cannabis sativa, in violation of Florida Statute 561.29, by facts showing a violation of Florida Statute 893.13.
It is concluded after a thorough and complete examination of the record that the Petitioner has not met its burden of proof in showing that Andrew James, did on or about the 28th day of September, 1974, sell and exchange for U.S. currency a quantity of narcotics, to wit: cannabis sativa, in violation of Florida Statute 561.29, by facts showing a violation of Florida Statute 893.13.
In View of the Conclusions of Law reached by the undersigned, it is Recommended that the charges under consideration here, which date from activities on September 20, 1974, and September 28, 1974, relating to alleged sale of narcotics, to wit: cannabis sativa, in violation of Florida Statute 561.29, by facts showing a violation of Florida Statute 893.13, be discharged and the licensees Andrew James and Ocilla James, d/b/a Brown's Bar and Package Store, be no longer held to answer to these aforementioned charges.
DONE and ENTERED this 21st day of November, 1975, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
William A. Hatch, Esquire (for the Director)
Department of Business Regulation Division of Beverage
725 Bronough Street Johns Building
Tallahassee, Florida 32304
Ralph V. Hadley, III, Esquire David, Henson & Hadlen, P.A.
200 West Welborne
Winter Park, Florida 32789
| Issue Date | Proceedings |
|---|---|
| Jan. 31, 1977 | Final Order filed. |
| Nov. 21, 1975 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 17, 1975 | Agency Final Order | |
| Nov. 21, 1975 | Recommended Order | Facts not proven that Respondents allowed employee to sell marijuana in their bar. Dismiss charges. |
DENNIS B. PARKER vs DEPARTMENT OF STATE, DIVISION OF LICENSING, 75-001563 (1975)
WANDA F. OLIVER vs. COUNTRYWIDE FUNDING CORPORATION, 75-001563 (1975)
FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE vs. CITY OF WINTER PARK, 75-001563 (1975)
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. EVERETT R ROGERS, 75-001563 (1975)
