STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2136

) DABT NO. 8-78-3-A JUAN & GLORIA RODRIGUEZ d/b/a )

JOHNNIE'S BAR AND GRILL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 1 February 1979 at Miami, Florida.

APPEARANCES

For Petitioner: Dennis E. LaRosa, Esquire

725 South Bronough Street Tallahassee, Florida 32304

For Respondents: Stephen J. Golembe, Esquire

Coconut Grove Bank Building

2701 South Bayshore Drive, Suite 305

Miami, Florida 33133

By undated Notice to Show Cause the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to assess a civil penalty against, suspend or revoke the alcoholic beverage license 23-3237 issued to Juan and Gloria Rodriguez, Respondents. As grounds therefor it is alleged that Respondent, Juan Rodriguez, had marijuana on the licensed premises and sold same on these premises; that he had gambling paraphernalia, a lottery ticket, in his possession as well as a list of numbers; and that he conspired with another person to commit an offense of conspiracy.

Respondent, by and through his attorney, admitted that he held license 23- 3237 COP and stipulated that the allegations contained in the gambling charges are true for the purpose of establishing a prima facie case. Thereafter, one witness was called by Petitioner, Respondent testified in his own behalf, and three exhibits were admitted into evidence.

FINDINGS OF FACT

1. Respondents hold license 23-3237 COP and at all times here relevant were so licensed.

2. On 7 November, 1977, Respondent, Juan Rodriguez, sold less than five grams of marijuana to Rocco Delio, an undercover policeman, on the licensed premises. Delio paid Rodriguez $11 for the marijuana and two beers.

   
   

3. When arrested in December 1977 on a warrant charging him with the sale of marijuana, Rodriguez had an old lottery ticket in his possession as well as a list of numbers which the arresting officers thought to be lottery numbers.

   
   

4. Rodriguez testified that the lottery ticket was an old one he bad obtained in Puerto Rico and that he had forgotten the ticket was in his wallet. He further identified the list of numbers as measurements he had taken for a building. Rodriguez denied ever selling any lottery tickets.

   
   

5. At his trial on the charge of possession and sale of marijuana and possession of lottery paraphernalia Rodriguez pleaded guilty, upon the advice of counsel, to unlawful sale of marijuana, and adjudication of guilt was withheld. (Exhibit 1). Rodriguez testified that he paid a $300 fine and was told by his attorney that the plea and subsequent withholding adjudication of guilt would not affect his business.

   
   

6. At this hearing Rodriguez denied selling marijuana to the policeman who had testified to the contrary. The Petitioner's witness is deemed a much more credible witness and it was this testimony, plus the guilty plea entered in Circuit Court that resulted in the finding that Respondent possessed and sold marijuana on the licensed premises.

   
   

7. No evidence was submitted with respect to Counts 3, 4 and 7 of the Notice to Show Cause.

   
   

8. The admissions of Respondent with respect to the facts alleged in Counts 5 and 6 were rebutted by Respondent's testimony, which was not contradicted by Petitioner's witness, that the lottery ticket was old and that the list of numbers found on Rodriguez' person was not a list of lottery numbers.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

   
   

10. Section 561.29 Florida Statutes provides for the revocation and suspension of licenses for various causes, and subsection (1)(b) thereof provides as one of these causes:

    
    

    Violation by the licensee . . . of any laws

    of this state or any state or territory of the United States.

    
    

11. Section 893.13 Florida Statutes provides that the sale of cannabis in an amount less than 100 pounds constitutes a felony of the third degree.

    
    

12. Section 849.09(1) provides in pertinent part:

    
    

    1. It shall be unlawful for any person in this state to:

       (h) Have in his possession any lottery ticket, or any evidence of any share or right

       in any lottery ticket, or in any lottery scheme or device, whether such ticket or evidence of share or right represents an interest in a live lottery not yet played or whether it represents, or has represented, an interest in a lottery that has already been played.

       
       

13. From the foregoing it is concluded that Respondent, Juan Rodriguez, violated the above quoted provisions of the laws of Florida in that he possessed and sold marijuana on the licensed premises and that he had in his possession when arrested a lottery ticket.

    
    

14. It is noted that Juan Rodriguez has an artificial hand and that he has no previous record of an offense against the beverage laws of this state. The possession of the old lottery ticket at the time of his arrest is deemed to be a very minor offense for the purpose of submitting a recommended penalty in this case. Possession and sale of controlled substances on licensed premises are deemed to be serious offenses under the beverage laws.

    
    

15. In view of Respondent's physical disability and his prior clean record it is not believed that outright revocation of the license is appropriate in this case. It is therefore

RECOMMENDED that the beverage license of Juan and Gloria Rodriguez, d/b/a Johnnie's Bar and Grill, be suspended for a period of twenty days.

Entered this 20th day of February, 1979.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Dennis E. LaRosa, Esquire 725 South Bronough Street Tallahassee, Florida 32304

Stephen J. Golembe, Esquire Coconut Grove Bank Building Suite 305

2701 South Bayshore Drive Miami, Florida 33133

Docket for Case No: 78-002136

Orders for Case No: 78-002136