STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-688

) JERYMIAH WASHINGTON t/a SPOT BAR, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing pursuant to notice on May 13, 1976, in Miami, Florida.

APPEARANCES

For Petitioner: Charles Curtis, Esquire

Staff Attorney

Department of Business Regulation Division of Beverage

The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

On February 18, 1976, the Director for the Division of Beverage issued a notice to show cause to the licensee, Jerymiah Washington, who is the holder of permit 23-2727, why his Division of Beverage license/cigarette permit should not have a civil penalty assessed against it or be suspended or revoked pursuant to Section 561.29 and 210.16, Florida Statutes. Specifically, the notice to show cause alleged that the licensee and/or his agents allowed one, Larry Darnell Melvin, a minor to consume alcoholic beverages, to wit:

1. One bottle, labeled Miller Beer on the licensed premises in violation of Florida Statutes, 562.11(1).

   
   

2. That on or about November 2, 1975, Licensee had in its possession, either actual or constructive, a controlled substance, to wit: cocaine, on the licensed premises, in violation of Florida Statutes 893.130 1(e).

   
   

3. That on or about November 2, 1975, at the above described premises, licensee maintained a public nuisance where controlled substances are illegally kept, sold or used in violation of Florida Statutes 561.29, to wit: Florida Statutes 823.10.

   
   

4. That on November 2, 1975, at the above described premises, the licensee and/or his agent permitted persons to possess alcoholic beverages, to wit: Two one pint bottles of Bacardi Rum, not authorized by law to be sold or possessed by licensee or persons, in violation of Florida Statutes 562.02. The Licensee is holder of a 2-COP type license.

5. That on January 8, 1976, at the above described premises, the licensee and/or his agent permitted to be possessed in the licensed premises 100 packages of non Florida tax paid cigarettes, in violation of Florida Statutes 561.29(1)(b), to wit: Florida Statutes 210.18.

FINDINGS OF FACT

1. Harlen Brown, was called and testified that he is a member of a corporation which owns the property which is the subject of this hearing and is located at 477 Northwest Lucy Street, Florida City, Florida. He testified that the licensee rented the space from the corporation on a month to month basis and that he was aware of the charges pending against the licensee. 1/ Brown stated that he was experiencing problems with licensee Washington and that residents of the community had also expressed their problems which were in the nature of a nuisance to the community but that the residents are not criminally inclined. Brown indicated that he would file an application to operate the premises as a beer and wine disco arrangement and that it was his intent to renovate the premises and cater to adults and not minors. He expressed the opinion that the problems stemmed from the prior lessees. Brown urged that if the licensee's license was revoked, that it be done without prejudice.

   
   

2. Michael Somberg, a beverage officer for approximately 18 months testified that he visited the Spot Bar on November 2, 1975, along with public safety officers Swain, Davis and others at approximately 12 o'clock, based on complaints that minors were consuming alcohol. Police officers that were also on the scene made an I.D. check of all the occupants on the premises and detained a juvenile, Larry Melvin, whose age as subsequently established revealed that he was 15 years old. He at the time of his detainment was carrying a sealed can of Miller's Beer. Somberg tasted and smelled the beer and determined that it was an alcoholic beverage. He placed Melvin under arrest and the beer was given to Officer E. W. Pfitzenmaier, who in turn submitted it to the crime laboratory bureau of the Metropolitan Dade County Public Safety Department for a laboratory analysis report. The examination conducted on the beer submitted that it contained ethyl alcohol 2.01 percent by volume or 1.61 percent by weight. Somberg testified that there was a flurry of activity on the premises when they announced themselves as beverage agents and/or policemen and that there was an attempt by the patrons to rid themselves of several packets and other items which turned out to be contraband. Somberg found one aluminum packet which contained 8 small packets of what appeared to him to resemble cocaine. He also gathered small amounts of marijuana and other paraphernalia from the floor of the premises. He retained the paraphernalia and had a field reagent test conducted on the narcotics. Present with Somberg was Officer Pfitzenmaier who also assisted in gathering the large wrapper which contained the 8 small packets of the white substance which according to him resembled cocaine also. Pfitzenmaier testified that he, at all times, maintained the confiscated items under his care, custody and control until turned over to the Dade County Laboratory Department. The various reports and items were received in evidence and marked for identification as Board's Exhibits 3 through 10.

   Also introduced was the notice of hearing which was issued to Licensee Washington and as Exhibit Number 12 the notice to show cause why his license should not be revoked.

   
   

3. An examination of the items revealed that the licensee and/or his agents sold to a minor a liquid containing ethyl alcohol; that among the items confiscated was heroin and marijuana i.e., 13.6 grams of marijuana and heroin and 8 small packets containing cocaine.

4. Also introduced was a carton containing 100 packages of non Florida tax paid cigarettes which were found on the licensed premises on January 8, 1976. This possession violates Florida Statutes 561.29(1)(B).

   
   

   CONCLUSIONS OF LAW

   
   

5. Notice, as required by law, has been given of this proceeding.

   
   

6. By allowing Larry Darnell Melvin, a minor, to consume alcoholic beverages on the licensee's premises, the licensee violated Florida Statutes, 562.11(1).

   
   

7. By having in the possession of the licensed premises actual or constructive possession of a controlled substance, to wit: cocaine, the licensee violated Florida Statutes, 893.130(1)(e).

   
   

8. By allowing to be illegally kept, sold, or used, a controlled substance on the licensed premises, the licensee violated Florida Statutes, 561.21, to wit Florida Statutes 823.10 by creation of a public nuisance.

   
   

9. By permitting person or persons to possess alcoholic beverages, to wit: Two one pint bottles of Bacardi Rum, not authorized by law to be sold or possessed by licensee or persons on the subject premises, the licensee violated Florida Statutes 562.02.

   
   

10. By having in the possession of the licensed premises 100 packages of non Florida tax paid cigarettes, the licensee violated Florida Statutes, 561.29(1)(B) to wit 210.18.

    
    

11. Section 561.29, Florida Statutes gives the Division of Beverage the full power and authority to revoke or suspend the license of a licensee or to impose a civil penalty, not to exceed $1,000, for violations arising out of a single transaction, against a licensee, when it is determined that the licensee or its agents, servants, officers or employees, have violated any of the laws of the State of Florida. As noted, the acts referred to above constitute such a violation.

RECOMMENDED ORDER

Having considered all testimony, pleadings and evidence presented in this matter, it is hereby recommended that the Respondent's license be revoked.

ENTERED this 29th day of July, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTES

1/ Although properly noticed, the licensee did not appear at this hearing to offer any testimony to refute and/or mitigate the allegations contained in the Division's Notice to Show Cause.

COPIES FURNISHED:

Charles Curtis, Esquire Department of Business Regulation Division of Beverage

The Johns Building Tallahassee, Florida 32304

Mr. Jerymiah Washington c/o The Spot Bar

477 N. W. Lucy Street Florida City, Florida

Docket for Case No: 76-000688

Orders for Case No: 76-000688