STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-496

) DABT NO. 34220-A

AURORA ENTERPRISES, INC., )

d/b/a GLADER PARK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was held on May 13 and 14, 1981; July 30, 1981; and September 14, 1981. This Recommended Order is being entered after receipt of proposed recommended orders offered by the parties and associated memoranda, the last item of which was docketed on November 10, 1981.

APPEARANCES

For Petitioner: Dennis E. LaRosa, Esquire

William A. Hatch, Esquire Staff Counsel

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

For Respondent: Tobias Simon, Esquire

1492 South Miami Avenue Miami, Florida 33130

and

Theodore L. Tripp, Jr., Esquire 2532 East First Street

Fort Myers, Florida 33901

ISSUES

This case involves the consideration of a Notice to Show Cause/Administrative Complaint brought by the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco against Aurora Enterprises, Inc. d/b/a Glader Park.

The first Count of that Administrative Complaint alleges that on or about January 17, 1981, the Respondent licensed under the beverage laws and/or its agent, servant or employee, namely Carrie Rae Macal, at the licensed premises did unlawfully sell and/or deliver a controlled substance, to wit: cannabis, to Officer Al Whitfield, in violation of Sections 893.13 and 561.29, Florida Statutes.

The second Count to the Administrative Complaint alleges that on or about January 17, 1981, the Respondent licensed under the beverage laws and/or its agent, servant or employee, Carrie Rae Macal, at the licensed premises did unlawfully sell and/or deliver pursuant to a prearranged agreement a controlled sub stance, to wit: cocaine, to a patron, one John Vernon Hope. It is further alleged that Hope subseqently delivered the cocaine to Beverage Officer P. M. Roberts, in keeping with the prearranged agreement in violation of Section

1. and 561.29, Florida Statutes.

   
   

   Count three alleges that on or about January 17, 1981, Abraham B. Freed, President of Aurora Enterprises, Inc., while operating and in control of a premises licensed under the beverage law, through License No. 23-2892, Series 4- COP, d/b/a Glader Park, did possess a controlled substance, to wit: cocaine, in violation of Section 893.3 and 561.29, Florida Statutes.

   
   

   Count four alleges that on or about January 20, 1981, the Respondent, licensed under the beverage laws and/or its agent, servant or employee, Carrie Rae Macal, at the licensed premises did unlawfully sell and/or deliver a controlled substance, to wit: cannabis, to Officer R. M. Roberts, in violation of Section 893.13 and 561.29, Florida Statutes.

   
   

   Count five to the Administrative Complaint alleges that between January 17 and 20, 1981, the Respondent, d/b/a Glader Bark, licensed under the beverage laws, by License No. 23-2892, Series 4-COP; its agent, servant or employee, did maintain a place, to wit: the licensed premises at 24050 SW Eighth Street, Miami, Dade County, Florida, which is resorted to by persons using controlled substances for the purpose of using these controlled substances, to wit: cannabis and cocaine, or which place is used for keeping or selling them in violation of Subsections 893.13(1), (2)(a)(c) and 561.29(1)(a), Florida Statutes.

   
   

   Finally, in Count six, the Administrative Complaint alleges that between January 17 and 20, 1981, the Respondent d/b/a Glader Park, licensed under the beverage laws, License No. 23-2892, Series 4-COP, its agent, servant or employee, did keep or maintain a public nuisance on this licensed premises, to wit: maintaining a building or place which is visited by persons for the purpose of unlawfully using substances controlled under Chapter 893, Florida Statutes, or which is used for the illegal keeping, selling or delivering of same, contrary to Section 823.10 and Subsection 561.29(1)(d) , Florida Statutes.

   
   

   FINDINGS OF FACT

   
   

   1. This case was presented for consideration before the Division of Administrative Hearings pursuant to Subsection 120.57(1), Florida Statutes. The formal hearing was conducted on the dates alluded to in the introductory portion of this Recommended Order. The purpose of the hearing was to consider the allegations of the Notice to Show Cause/Administrative Complaint, which counts are outlined in the Issues statement. The Respondent having disputed those accusations, the hearing was held de novo.

   2. During the course of the formal hearing, testimony and matters of tangible evidence were presented by both parties. Following the conclusion of the presentation by the parties, they were afforded the opportunity to submit proposed findings of fact, conclusions of law and recommended dispositions of the case, together with posthearing memoranda of law. The parties availed themselves of those opportunities, and the matters submitted have been considered by the Hearing Officer prior to the entry of this Recommended Order. To the extent that the offerings by the parties are consistent with the Recommended Order, they have been utilized. To the extent that the matters contained in the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected.

      
      

   3. The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter referred to as Division) , is a regulatory agency of the State of Florida which has among its functions the licensure of individuals and corporations which sell alcoholic beverages at retail in the State of Florida. The Division has statutory responsibility to enforce the beverage laws, and to discipline licensees should violations of the beverage laws or other regulatory statutes and rules be committed by a licensee.

      
      

   4. The Respondent, aurora Enterprises, Inc. d/b/a Glader Park (hereinafter referred to as Glader Park), is the holder of a valid Series 4-COP beverage license issued by the Division. The number of the license is No. 23-2892, Series 4-COP. The license allows the licensee to sell spiritous beverages, malt beverages and wine in its licensed premises. The premises for which the license is issued and in which the licensee operates as a retail beverage outlet is located at 24050 SW Eighth Street, Miami, Dade County, Florida, where the present licensee has continually operated after acquiring the license in July, 1979. Beginning in July, 1979, and at all pertinent times to this Administrative Complaint, Abraham Bernard Freed has been the sole shareholder and president of the Respondent corporation.

      
      

   5. On the evening of January 17, 1981, beverage officers working in an undercover capacity for the Petitioner went to the subject licensed premises. These officers were there for the purpose of investigating alleged drug transactions that were occurring at the licensed premises. Two teams of officers entered the licensed premises on that evening at approximately the same time. The first team was constituted of Officers Robert Jones and P. M. Roberts, and the second team was constituted of Officers Debra Thompson and Al Whit field.

      
      

   6. After entering the licensed premises, Roberts and Jones took a seat at a bar, and while seated engaged in a conversation with a patron, one John Hope. In the course of the conversation, Hope asked the officers if they wanted to smoke a "joint," meaning to smoke marijuana. Roberts replied in the affirmative, and Hope removed a flower-topped item which was marijuana from his pocket and placed it on the bar in front of Roberts. Hope then instructed Roberts to clean the seeds from the marijuana composition and briefly departed from the officers.

      
      

   7. The bartender, Abraham Freed, owner of the licensed premises, was then summoned by the officers and asked to sell them cigarette papers. Freed saw the marijuana on the bar and replied to the effect that he had plenty of Papers and observed that the officers looked like they had "gold." "Gold" in this instance is jargon for marijuana. Freed sold cigarette papers to the officers who took the marijuana substance that had been extracted from the seeds and rolled cigarettes, using the paper that they had purchased from Freed.

   8. While the officers were still seated at the bar they were again approached by Hope, who asked the officers if they "did any coke." The term "coke" meant cocaine. The officers indicated that they would be interested in making a purchase of cocaine, and Hope told them that he could purchase the cocaine from Carrie for $80. The person, Carrie, referred to is Carrie Macal, an employee of the licensee who was working on the night of January 17, 1981, in the capacity of waitress.

      
      

   9. The officers gave Hope $80, and Hope spoke to Macal in the licensed premises and went out into the parking lot, where Hope was seen to give Macal the $80. Macal then went away from the licensed premises building, and Hope returned to the licensed premises. Subsequently, Hope went back into the parking lot and received cocaine from Carrie Macal. Hope then returned to the licensed premises and approached the officers, and told them that- he had "the stuff" and instructed them to follow him into the men's rest room.

      
      

   10. The officers went into the men's rest room of the licensed premises, and, while in that bathroom, Hope ingested a portion of the cocaine which the officers had purchased from Hope who had used Macal as an intermediary. The officers simulated the use of cocaine. While in the lavatory, Freed approached the officers and Hope, and, after being invited into the stall where the cocaine was being used or simulated for usage, Freed ingested some of the cocaine by sniffing the material. Everyone then left the bathroom area, and the officers departed the licensed premises shortly thereafter.

       
       

   11. While Jones and Roberts had been involved in these events of January 17, 1981, in the licensed premises, Officers Whitfield and Thompson had been seated in a different part of the bar and had been carrying out their investigation. Whitfield had talked to Freed about playing as a musician in the licensed premises. He also spoke to Macal and stated that if he came to play music he'd like to have something besides bourbon. Macal responded by asking Whitfield if he would like something now. Whitfield indicated that he would, and Macal went into the kitchen area of the bar, which is in front of the area where the officers were sitting. She closed the door behind her and was gone for approximately five minutes. She returned and handed Whitfield a small tinfoil package which contained marijuana. Whitfield asked her how much it would cost, meaning the marijuana. Macal did not quote a price, but Whitfield left $10 on the counter. Macal picked it up, and Whitfield asked if that was enough, to which Macal replied that it was. Macal then asked if Whitfield wanted cigarette papers, and he responded that he did, and she handed him cigarette papers. Whitfield asked if there was any charge for the papers, and Macal responded in the negative. Not long after this transaction, the officers left the licensed premises.

       
       

   12. Roberts and Jones returned and reentered the licensed premises on January 20, 1981, and took a seat at the bar. While in the bar on this occasion, one of the officers talked to Freed, and in the course of the conversation asked Freed if he could get them the "pause that refreshes." Freed asked them if they meant "grass," meaning marijuana. The officer responded that they would like to have a "bag" to carry with them to the Keys. Freed then talked to other people in the licensed premises, after which he came back and stated that there were no drugs available. On this visit, Freed also acknowledged using cocaine in the rest room on January 17, 1981, and indicated his preference for using that substance when engaging in sexual relations or while working.

   13. On January 20, 1981, Macal was working as a waitress in the licensed premises, and the officers asked her about the possibility of obtaining drugs. She left the bar area several times and reported that no drugs were available. Later, Macal went back to the kitchen area of the licensed premises and came back from that area with a brown paper bag in her hand, left by the front door, and then returned to the licensed premises and stood behind the bar area. She summoned Officer Roberts to go with her by a gesture with her head, and he followed her into the hallway by the rest rooms, which was out of view of the bar area. She then gave marijuana to Roberts which was contained in a brown paper bag, and stated that it was for Roberts and Jones. Roberts asked how much this would cost, and she indicated that there would be no charge because it was a favor for the officers. After this transaction the officers left the licensed premises.

       
       

   14. On the subject of the two marijuana transactions involving Carrie Macal, there was no showing in the course of the hearing that Respondent, in the person of its owner, Abraham Freed, had direct knowledge of those transactions.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   16. Count one to the Administrative Complaint alleges that Carrie Macal, while at the licensed premises, sold or delivered a controlled substance, namely cannabis, to Officer Whitfield on January 17, 1981, and that this violated Sections 893.13 and 561.29, Florida Statutes. Macal did deliver marijuana, which was cannabis within the meaning of Section 893.13, Florida Statutes, and this delivery and sale was in the licensed premises. By her actions, Macal violated Section 893.13, Florida Statutes, which makes it a crime to sell or deliver a controlled substance, such as cannabis. Potentially, the violation by Macal, who was an employee of the licensee, could constitute a violation of Section 561.29, Florida Statutes, on the part of the licensee. To prove this violation on the part of the licensee, it would be necessary to demonstrate that the licensee in the person of its owner had failed to exercise due diligence or was negligent in protecting the licensed premises from violations by an employee of the licensee, there being no showing that the licensee in the person of the owner had direct knowledge of this drug transaction. See W. C. Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969); and G. & B. of Jacksonville, Inc. v. State of Florida, 366 So.2d 877 (Fla. 1st DCA 1979).

       
       

   17. In keeping with the rationale expressed in those court opinions, a single transaction unobserved by the licensee is insufficient to make the licensee culpable for the violation of Section 893.13, Florida Statutes, on the part of his employee, and consequently the licensee has not violated Section 561.29, Florida Statutes, as alleged in Count one.

       
       

   18. Count two of the Administrative Complaint pertains to the alleged sale of cocaine through the efforts of Carrie Macal and John Hope, which occurred on January 17, 1981, with Beverage Officer Roberts allegedly being the purchaser. This purportedly caused the licensee to violate Sections 893.13 and 561.29, Florida Statutes. Through the actions of Macal and Hope, cocaine, which is a controlled substance within the meaning of Section 893.13, Florida Statutes, was sold to Beverage Officer Roberts, and for that reason Macal and Hope violated that provision of law. The licensee in the person of its owner was unaware of this sale, which transpired on January 17, 1981, in close proximity of time to the sale of marijuana discussed in Count one. Consequently, for the licensee to

       be culpable for the violation of Section 893.13, Florida Statutes, related to the actions of Macal and Hope and in violation of Section 561.29, Florida Statutes, again it must be shown that the licensee was culpable based upon a lack of diligence or negligence. For reasons as discussed in the treatment of Count one, there is insufficient proof of culpability related to lack of due diligence or negligence, and the Respondent has not been shown to have violated Section 561.29, Florida Statutes, as alleged in Count two.

       
       

   19. Count three charges that Abraham Freed, who is the president and sole stockholder and owner of the licensee corporation, possessed cocaine, a controlled substance, on January 17, 1981, in violation of Section 893.3, Florida Statutes. 1/ Freed did possess cocaine, a controlled substance within the meaning of Section 893.13, Florida Statutes, and committed a violation of the terms of that provision. As the sole owner and stockholder of the licensee corporation, the actions of Freed are tantamount to a violation by the licensee, and a violation of the criminal law provisions set out in Section 893.13, Florida Statutes, led to a violation of Section 561.29, Florida Statutes, related to violation of Florida Statutes. For this violation of Section 561.29, Florida Statutes, the licensee is subject to the penalties found in that provision.

       
       

   20. Count four to the Administrative Complaint alleges that on January 20, 1981, Macal as agent, servant or employee of the licensee sold and/or delivered a controlled substance, namely cannabis, to Beverage Officer Roberts in violation of Section 893.13, Florida Statutes, and thereby caused the licensee to violate that provision as well as Section 561.29, Florida Statutes. Macal did in fact deliver marijuana, also known as cannabis, a controlled substance within the meaning of Section 893.13, Florida Statutes, to Roberts on January 20, 1981, in the licensed premises in violation of Section 893.13, Florida Statutes. This delivery was not made with the knowledge of Freed, the owner of the licensee corporation; however, the facts of that incident, when considered in the context of those matters related in discussing the first three Counts of the Administrative Complaint and those other matters set forth in the Findings of Fact, lead to the conclusion that the corporation failed to exercise due diligence and was negligent in its supervision of the employee, Macal. Consequently, the violation by Macal of Section 893.13, Florida Statutes, related to the January 20, 1981, sale of cannabis to Officer Roberts brings about a violation of Section 561.29, Florida Statutes, which makes it a violation of that provision for agents, servants or employees of a licensee corporation to violate laws of the State of Florida, such as Section 893.13, Florida Statutes. For the violation of Section 561.29, Florida Statutes, the licensee is subject to the penalties set forth in that provision.

       
       

   21. Count five to the Administrative Complaint alleges that between January 17 and 20, 1981, the licensee, its agents, servants or employees maintained a place which was resorted to by persons using controlled substances for the purpose of using those controlled substances, namely cannabis and cocaine, which place was used for keeping or selling those substances in violation of Subsections 893.13(1), (2)(a)(c) , Florida Statutes. 2/ The Respondent is also alleged to have violated Subsection 571.29(1)(a), Florida Statutes.

   22. In consideration of those facts as reported in the Findings of Fact of this Recommended Order, with particular emphasis on the participation of the licensee's sole owner, Abraham Freed, it has been shown that the licensed premises were maintained as a place resorted to by persons using controlled substances for the purpose of using those controlled substances, and which in turn was used as a place for keeping and selling those substances, namely cannabis and cocaine. These actions violated Subsection 893.13(1)(a)5., Florida Statutes. The violation of that provision constitutes a violation of Subsection 561.29(1)(a), Florida Statutes, and the Respondent is subject to the penalties set forth in Section 561.29, Florida Statutes.

       
       

   23. Count six contains an allegation that between January 17 and 20, 1981, the licensee, agents, servants or employees did keep or maintain a public nuisance on the licensed premises by maintaining a building or place which is visited by persons for the purpose of unlawfully using controlled substances within the meaning of Chapter 893, Florida Statutes, and which was used for the illegal keeping, selling or delivering of those substances; and by these pursuits acted contrary to Section 823.10, Florida Statutes, and Subsection 561.29(1)(d) , Florida Statutes. 3/

       
       

   24. The facts of this case as reported in the Findings of Fact are sufficient to show that the Respondent licensee allowed a public nuisance to occur within the meaning of Section 823.10, Florida Statutes, as alleged, and within the meaning of Subsection 561.29(1)(c) , Florida Statutes. Therefore, the Respondent is subject to the penalties of Section 561.29, Florida Statutes; however, those penalties to be assessed must run concurrently with the penalty to be assessed for the violation related to Count five.

       
       

   25. With the exception of the Conclusions of Law concerning Counts one and two, the motion to dismiss is in all other respects denied.

Having considered the facts of this case and the recommended orders offered by the parties, and in view of the Conclusions of Law reached herein, it is

RECOMMENDED:

That the Petitioner enter a final order which dismisses Counts one and two of the Administrative Complaint; which revokes the Respondent's license for the violation as established in Count three; which suspends the license for a period of 60 days for the violation as set forth in Count four; which revokes the license for the violation as set forth in Count five; and which revokes the license for the violation as set forth in Count six.

DONE and ENTERED this 3rd day of November, 1981, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1981.

ENDNOTES

1/ While the complaint alludes to Section 893.3, Florida Statutes, that reference is felt to be a typographical error, and it is concluded that the Petitioner intended to reference Section 893.13, Florida Statutes, there being no 893.3, Florida Statutes.

2/ This provision cited appears to be a scrivener's error, in that it is Subsection 893.13(2)(a)5., Florida Statutes, which the Petitioner intends to make reference.

3/ The reference to Subsection 561.29(1)(d) , Florida Statutes, is deemed to be a typographical error which should have been reported as Subsection 561.29(1)(c) , Florida Statutes.

COPIES FURNISHED:

Dennis E. LaRosa, Esquire William A. Hatch, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Tobias Simon, Esquire 1492 South Miami Avenue Miami, Florida 33130

Theodore L. Tripp, Jr., Esquire 2532 East First Street

Fort Myers, Florida 33901

Charles A. Nuzum, Director Division of Alcoholic

Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 81-000496

Orders for Case No: 81-000496