STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DIVISION OF BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-686

)

RIVIERA LOUNGE, INC. )

t/a RIVIERA LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings, on July 28, 1976, at 1934 Beachway Road, Jacksonville, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business Regulation The Johns Building

Tallahassee, Florida 32304

For Respondent: Robert M. Smith, Jr., Esquire

1904 Gulf Life Tower Jacksonville, Florida 32207

ISSUE

Whether or not on or about the 17th day of December, 1975, on the licensed premises of the Respondent; its agent, servant or employee, one Fonda Joyce Ward, did unlawfully have in her actual or constructive possession a controlled substance (marijuana), in violation of Section 893.13(1)(e), Florida Statutes, thereby causing the Respondent to violate Section 561.29(1)(a), Florida Statutes.

FINDINGS OF FACT

1. It was stipulated and agreed that the Respondent, Riviera Lounge, Inc., trading as Riviera Lounge, 10 Julia Street, Jacksonville, Florida, is the holder of a beverage license #26-233, Class 4-COP, and held such license on December 17, 1975.

   
   

2. On December 17, 1975, Fonda Joyce Ward was employed at the licensed premises and came to work on that date. When she arrived at work she had with her a brown paper bag which contained approximately one ounce of a controlled substance known as marijuana, a toothbrush, a bar of soap, and cigarette rolling papers. This large bag and contents was placed behind the bar and the witness

   commenced her employment, without further attention to the large paper bag and contents.

   
   

3. Subsequent to the time that Fonda Joyce Ward came on her shift, agents of the State of Florida, Division of Beverage, came to the licensed premises to make a routine inspection of the licensed premises, to include the check of inventory and records. Agent K. A. Boyd discovered the paper bag and contents behind the bar. The bag was partially open and Agent Boyd looked into the bag, not for purposes of discovering the contraband but with the expectation of finding invoices or receipts. He discovered the marijuana and that substance was subsequently turned over to a chemist who analysed it and concluded that it was marijuana.

   
   

4. Ms. Ward explained that she had been in a hurry and quickly taken the paper bag containing the marijuana out of her car. (The paper bag and contents are Petitioner's Exhibit #1 admitted into evidence and are left in the control and custody of the Division of Beverage in their Jacksonville office located at 1934 Beachway Road, Jacksonville, Florida, with the consent of the Respondent.)

   
   

5. At the time of Agent Boyd's discovery, Fonda Joyce Ward was not in the immediate vicinity of the marijuana and the other employee in the bar, identified as Mr. Davis, was not in close proximity of the marijuana. There is no evidence to indicate that Fonda Joyce Ward or Davis were smoking the marijuana.

   
   

6. The president of the corporation, Mr. Jeffrey Cohen, was not on the licensed premises on the night of the occurrence, but subsequently told the beverage officers that he knew that Fonda Joyce Ward smoked marijuana but didn't know that she brought it on the premises. In his testimony at the hearing, Mr. Cohen indicated that he knew she had used marijuana but that he doesn't allow marijuana on his premises and that there had not been any prior problem of this sort with the employee Ms. Ward. Furthermore, he said he had no reason to believe that she would use the marijuana on the premises. Fonda Joyce Ward in her testimony indicated that she had discussed the use of marijuana with Cohen before and he had told her not to bring it into the bar.

   
   

7. There was additional testimony that the use of the controlled substance, marijuana, is not allowed in the bar and thence persons who try to use it are removed.

   
   

8. Fonda Joyce Ward is still employed at the licensed premises.

   
   

   CONCLUSIONS OF LAW

   
   

9. It is concluded as a matter of law, that notwithstanding the fact that Fonda Joyce Ward did unlawfully have in her actual constructive possession a controlled substance (marijuana) in violation of 893.13(1)(e), Florida Statutes, on December 19, 1975, the Respondent is not responsible under the terms of 561.29(1)(a), Florida Statutes, for the acts of the employee, Fonda Joyce Ward. The Respondent is not responsible because the Petitioner has failed to show that the licensee was found to be culpably responsible for the violation committed by Fonda Joyce Ward through or as a result of its own negligence, intentional wrongdoing or lack of diligence. (See Trader John, Inc. v. The State Beverage Department, 119 So.2d 735 (1 D.C.A. 1960).

RECOMMENDATION

It is recommended that the Director of the Division of Beverage allow the Respondent, Riviera Lounge, Inc. to go without further answer to this charge.

DONE and ENTERED this 23rd day of August, 1976, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business Regulation The Johns Building

Tallahassee, Florida 32304

Robert M. Smith, Jr., Esquire 1904 Gulf Life Tower Jacksonville, Florida 32207

Docket for Case No: 76-000686

Orders for Case No: 76-000686