STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2111

) (DABT NO. 37641-A) MARVIN & FLOSSIE JONES, t/a )

MARVIN'S BEER & WINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on February 27, 1980. The location of the hearing was the Juvenile Court Center, 14500 49th Street, Clearwater, Florida.

APPEARANCES

For Petitioner: Daniel C. Brown, Esquire.

Deputy General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondents: Douglas Prior, Esquire

Campbell and Prior, P.A.

205 South Garden Avenue Clearwater, Florida 33516

ISSUE

1. Whether or not on or about May 17, 1979, Marvin Jones, licensed under the beverage laws, did sell marijuana (cannibas) to an employee, agent or servant of the Clearwater Police Department, in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes.

   
   

2. Whether or not on or about May 17, 1979, Marvin Jones, licensed under the beverage laws, did possess marijuana (cannibas) in excess of five (5) grams with the intent to sell same, in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes.

   
   

3. Whether or not on or about June 6, 1979, Marvin Jones, licensed under the beverage laws, did unlawfully possess over five (5) grams of marijuana (cannibas), in violation of the Florida Comprehensive Drug Abuse Prevention and

   Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes.

   
   

4. Whether or not on or about June 6, 1979, Marvin Jones, licensed under the beverage laws, did unlawfully possess gambling paraphenalia, in violation of the gambling laws, to-wit: Subsections 849.09(1)(k) and (2), Florida Statutes, and Section 561.29, Florida Statutes.

FINDINGS OF FACT

1. Marvin and Flossie Jones, husband and wife, are the holders of license No. 62-383, Series 2-COP, as held with the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. This license entitles the Joneses to sell beer and wine for consumption on or off their licensed premises which is located at 1104 North Greenwood Avenue, Clearwater, Florida, where the Respondents trade as Marvin's Beer and Nine.

   
   

2. The Respondents are here charged by the Petitioner through a Notice to Show Cause/Administrative Complaint with' violations whose particulars are set forth in the issues statement of this Recommended Order. In consideration of this dispute, a formal hearing was held on February 27, 1980.

   
   

3. The facts reveal that on May 17, 1979, one Henry Irving entered the licensed premises and purchased 5.2 grams of marijuana (cannibas) by weight, from the Respondent, Marvin Jones. At that time Irving was acting as an operative for the Clearwater Police Department, Clearwater, Florida, and while in the licensed premises, Irving paid Marvin Jones $20.00 for this purchase of marijuana (cannibas). The money that was paid was money provided by the Clearwater Police Department.

   
   

4. On June 6, 1979, acting under the authority of an arrest warrant, officers of the Clearwater Police Department arrested the Respondent, Marvin Jones, based on the sale of marijuana (cannibas) which he had made to Henry Irving. In making a search of Marvin Jones incidental to the arrest, two manila envelopes were found in Marvin Jones's sock and these envelopes contained marijuana (cannibas), the weight of that marijuana (cannibas) in the aggregate was 4.2 grams.

   
   

5. The Respondent Jones was given his statement of rights in accordance with Miranda and after receiving those warnings, Jones stated that it was his practice to buy marijuana (cannibas) in amounts of a pound or two pounds and he in turn sold it in small amounts to adults. He further stated that he had purchased marijuana (cannibas) on mere than one occasion.

   
   

6. In searching Marvin Jones, the officers also discovered $400.00 in cash and a number of slips of paper with numbers on them. Those slips of paper were explained by Jones to be numbers or combinations of numbers for dogs running at pari-mutuel races in Sarasota, Florida, and they were numbers which persons wished to have bet for them. Of the $400.00 found on the Respondent, Jones indicated that $50.00 of that money was for placing bets at the race track in particular for daily doubles races in the pari-mutuel events. He further stated that he would place the bets himself or have someone place them for him.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction ever the subject matter and the parties to this action.

8. Count I of the administrative complaint document charges the Respondent, Marvin Jones, with selling marijuana (cannibas) on May 17, 1979, and makes reference to the fact that this sale is a violation of Subsection 893.13(2), Florida Statutes, and goes on to say that this provision pertains to felony-type offenses. In reality, Section 893.13(2), Florida Statutes, sets forth violations which constitute misdemeanors of the first degree and it is

   Sub-section 893.13(1)(a)2. , Florida Statutes, which pertains to felony offenses related to the sale of the controlled substance cannibas. In view of the ultimate fact pleadings in Count I, it is concluded that the Petitioner intended to accuse the Respondent, Marvin Jones, with a violation of Subsection 893.13(1)(a)2. , Florida Statutes, and in view of the facts found herein it is further concluded that Marvin Jones sold marijuana (cannibas) to Henry Irving on May 17, 1979, a felony offense, in violation of Subsection 893.13(1)(a)2., Florida Statutes, thereby subjecting the licensees to the penalties of Section 561.29, Florida Statutes.

   
   

9. Again, in Count II the citation in the administrative complaint document should read, and is allowed to read, Subsection 893.13(t) (a)2. , Florida Statutes, as opposed to Subsection 893.13(2), Florida Statutes, for reasons discussed in considering Count I. In view of the facts found herein, it is concluded that Marvin Jones possessed marijuana (cannibas) in excess of five

   (5) grams with the intent to sell that controlled substance to $Henry Irvine on May 17, 1979, in violation of Subsection 893.13(i)(a)2. , Florida Statutes, a felony, and the licensees are subject to the penalties found in Section 561.29, Florida Statutes,

   
   

10. The penalties to be administered pursuant to Section 561.29, Florida Statutes, for the violations established in Counts I and II of the administrative complaint should run concurrently.

    
    

11. For reasons as discussed above in considering Count I, it is concluded that the Petitioner intended to accuse the Respondent, Marvin Jones, through its Count III in the administrative complaint document with a violation of Subsection 893.13(1)(a)2. , Florida Statutes, as opposed to Subsection 893.13(2), Florida Statutes, and for reasons as given above proof of a violation of Subsection 893.13(1)(a)2., Florida Statutes, shall be allowed as a basis for establishing the allegation. In view of the facts involved in the arrest of Marvin Jones and the discovery of the marijuana (cannibas) in his sock, the proof is not sufficient to show that he had that marijuana (cannibas) in his possession with the intent to sell and, therefore, the offense as alleged has net been proven and the licensees are not subject to penalties found in Section 561.29, Florida Statutes. It is further recommended that Count III be dismissed.

    
    

12. Count IV of the administrative complaint charges the Respondent, Marvin Jones, with possession of gambling paraphenalia within the meaning of Subsection 849.09(1)(k), Florida Statutes, which would subject the Respondent, Marvin Jones, to the penalties found in Subsection 849.09(2), Florida Statutes. The facts in this case are not such that they would show that Marvin Jones was in possession of materials designed for use either in a direct or indirect way or in connection with violations of the laws of the State of Florida prohibiting lotteries and gambling. The Respondent, Marvin Jones, not being guilty of a violation of that law, the licensees are not subject to the penalties found in Section 561.29, Florida Statutes, and it is recommended that Count IV be dismissed.

RECOMMENDATION

Upon the consideration of the facts herein and these matters in aggravation and mitigation, it is RECOMMENDED that the license No. 62-383, Series 2-COP, held by the Respondents, Marvin and Flossie Jones, be REVOKED.

DONE AND ENTERED this 26th day of March, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Daniel C. Brown, Esquire Deputy General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Douglas Prior, Esquire CAMPBELL AND PRIOR, P.A.

205 South Garden Avenue Clearwater, Florida 33516

Docket for Case No: 79-002111

Orders for Case No: 79-002111