STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-499

)

TONEY HATFIELD McDONALD )

KOENEMANN d/b/a McDONALD'S )

LIQUOR STORE AND LOUNGE, )

)

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 conducted on May 15, 1981, at the Earnest R. Graham Building, 1350 Northwest 12th Avenue, Miami, Florida.

APPEARANCES

For Petitioner: Harry F. X. Purnell, Esquire

General Counsel

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

For Respondent: John W. Black, Esquire

Robert J. Black, Esquire Gerald McBride, Esquire BLACK, BLACK & McBRIDE, P.A.

420 South Dixie Highway, Suite 2-B Coral Gables, Florida 33146

ISSUE

This case is presented on the basis of a certain Notice to Show Cause/Administrative Complaint placed by the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco against Toney Hatfield McDonald Koenemann d/b/a McDonald's Liquor Store and Lounge. The Administrative Complaint contains the following allegations

1. On or about January 10, 1981, you, TONEY HATFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or your agent, servant, or employee, DEBRA LYNN HART, at

   your licensed premises did unlawfully solicit or conspire with a B/M identified

   as DENNIS to sell and/or deliver a controlled substance, to wit: cannabis, to Beverage Officer R. THOMPSON in violation of F.S.

   893.13 to wit: F.S. 561.29.

   
   

2. On or about January 10, 1981, you, TONEY HATFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or your agent, servant, or employee at your licensed premises, to wit: DEBRA LYNN HART, did solicit Beverage Officer R. THOMPSON to buy her an alcoholic beverage, to wit: beer, said alcoholic beverage subsequently purchased by THOMPSON and given to DEBRA LYNN HART, in violation of F.S. 562.131.

   
   

3. On or about January 13, 1981, you TONEY HARTFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or hour [sic] agent, servant, or employee, GWENDOLYN HENRY, at your licensed premises, did unlawfully sell and/or deliver a controlled substance, to wit: cannabis, to Beverage Officer J. BATES, in violation of F.S. 893.13 to wit: F.S. 561.29.

   
   

4. On or about January 15, 1981, you, TONEY HATFIELD MCDONALD KOENEMAN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or your agent, servant, or employee, DEDRA LYNN HART, at your licensed premises did unlawfully criminally solicit or conspire with a B/M identified as "COOKIE" to sell and/or deliver a controlled substance, to wit: cannabis, to Beverage Officer R. THOMPSON in

   violation of F.S. 893.13 to wit: F.S. 561.29.

   
   

5. Between January 10, 1981 and January 15, 1981, you, TONEY HATFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws, license #23-2362:4-COP, your agent, servant, employee, did maintain a place to wit: your licensed premises at 15966-15974 N. W. 27th Avenue, Miami, Dade County, Florida, which is resorted to by persons rising controlled substances for the purpose of using these controlled substances, to wit: canabis and cocaine, or which place is used for keeping or selling them in violation of FSS[sic] 893.13(2)(a)5. within F.S. 561.29(1)(a).

6. Between January 10, 1981 sod January 15, 1981, you, TONEY HATFIELD MCDONALD, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws, license #23-2362:40 COP [sic], your agent, servant, end/or employee, did keep or maintain a public nuisance on your 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 as amended) or which is used for the illegal keeping, selling, or delivering of same, contrary to F.S. 823.10 and F.S. 561.29 (1)(c).

FINDINGS OF FACT

1. Having been charged with the allegations set forth in the Issues statement of this Recommended Order, which were brought by the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, the Respondent, Toney Hatfield McDonald Koeneman d/b/a McDonald's Liquor Store and Lounge, requested a Subsection 120.57)1), Florida Statutes, hearing. The formal hearing in this cause was conducted on May 15, 1981. This Recommended Order is being entered in furtherance of that hearing and after granting the parties an opportunity to offer memoranda of law, proposed findings of fact, conclusions of law and recommendations and in keeping with the schedule designed to effectuate that opportunity. 1/

   
   

2. The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is a regulatory agency within the State of Florida, which has among its functions, the licensure of individuals who sell alcoholic beverages in the State of Florida and the responsibility to discipline those several licenses, should the licensees violate the underlying regulatory statutes and rules.

   
   

3. The Respondent, Toney Hatfield McDonald Koenemann, operates a business known as McDonald's Liquor Store and Lounge at a location on Northwest 27th Avenue, Miami, Dade County, Florida. Respondent is the holder of License No. 23-2363, Series 4-COP, issued by the Petitioner. This license allows the sale of alcoholic beverages at the business location for purposes of consumption off premises. At all times pertinent to the Administrative Complaint, the Respondent was the holder of that license.

   
   

4. On January 10, 1981, Beverage Officers R. Thompson and Eddie Alford went to the licensed premises to determine if drugs were being sold or used at the licensed premises.

   
   

5. When Thompson and Alford approached the front door to the licensed premises, they asked the man who was at the window in the vicinity of that door, how much it would cost to be admitted. The employee replied that the cost was

   $2.00. Thompson then asked this individual where they might obtain marijuana and the response was, "you ran get it back there," while pointing to the area in which the licensed premises were used as a discotheque club. This gesture made by the employee at the door was by one Rollins Donald, who was the bar manager.

6. The officers entered the bar area to commence their surveillance: however, Officer Alford only stayed in the licensed premises for a period of approximately fifteen (15) minutes, after which time he left the building for fear that he had can recognized by persons in the bar. Alford was concerned that his identity not be revealed in view of the fact that the beverage officers were operating in an undercover capacity and when operating, law enforcement personnel do not wish persons to know their identity. This revelation would inhibit the investigation. While in the licensed premises, Alford did not observe any form of narcotics violation.

   
   

7. Once Thompson had entered the licensed premises, he took a seat at the bar area where certain female dancers were performing a nude dance routine. The dancers were employees of the Respondent. One of those dancers was a person identified as "Debra." While at the bar, a conversation was held between Thompson and "Debra" and Thompson asked her to obtain marijuana for him.

   "Debra" walked over to a man in the licensed premises who was sweeping the floor and the man gestured with his head, after which time the dancer returned and said, "he didn't have any." "Debra" then left Thompson and returned with a second man and in the presence of "Debra" negotiations were held and Thompson bought a $7.00 quantity of marijuana, which is also known as cannabis sativa L. During the transaction, the non who was identified as "Dennis," left the licensed premises, and after returning, the transaction was concluded.

   
   

8. On the same date, January 10, 1981, another team of investigators from the Beverage Division went to the licensed premises. These officers were Sergeants Allan F. Nash and James P. Bates. The officers entered the licensed premises and observed the dancing of the female employees, and undertook the investigation but did not observe any sale or use of narcotics.

   
   

9. On January 13, 1981, Sergeants Nash and Bates returned to the licensed premises. The officers, upon entering the licensed premises, purchased beers from the bartender and were seated at a table inside the premises. They were approached by a dancer employed at the bar who identified herself as "Tiny." She asked them for money related to her dancing. Nash gave her $2.00 and Bates gave her $1.00. Bates asked the dancer where he might obtain "reefer," meaning marijuana. The dancer responded that he should give her $5.00. The dancer then left and spoke to a woman behind the bar and obtained a bag from that woman. "Tiny" returned to the officers and sold Bates the contents of the bag for a price of $5.00. The bag contained marijuana, also known as cannabis sativa L.

   
   

10. While at the licensed premises on January 13, 1981, Sergeants Bates and Nash observed two men at the bar smoking cigarettes which had an aroma which the officers associated with burning marijuana, a substance which they had the sufficient expertise to detect when confronted with a similar aroma. The barmaid behind the bar where the men were seen to be smoking this material did not take steps to prevent this activity on the part of the men.

    
    

11. On the evening of January 13, 1981, Sergeants Nash and Bates took no further steps to purchase narcotics in the bar after the purchase from the dancer "Tiny."

    
    

12. Officer Thompson was also at the licensed premises on January 13, 1981. While in the bar proper, he observed a man and woman sitting in a corner of the bar. From that location he noticed a smell which had an odor similar to marijuana. The officer was familiar with the smell of marijuana.

13. Thompson then went to the location of the man and woman and spoke to the woman and asked her if she knew where he might purchase some "coke," meaning cocaine. This woman then accompanied Officer Thompson to the restroom area, and after being introduced to a man identified as "Wallace" concerning the subject of the possible purchase of cocaine, Thompson negotiated with "Wallace" and purchased a quantity of cocaine in the amount of $25.00. "Wallace" then inquired of Thompson about a further purchase of cocaine and Thompson was amenable to that transaction. "Wallace" left the area of the licensed premises and returned and spoke with one of the employees of the bar, a barmaid named "Carrie." He then returned to Thompson and they went to the restroom area again and Thompson paid "Wallace" a price of $37.00 for an additional Quantity of cocaine Thompson then returned to the bar proper and soaks with the barmaid "Carrie" and asked her what she thought he had, referring to the cocaine, and she replied to the effect that she knew and for him to do what he wanted. This same "Carrie" had been at the bar on January 10, 1981, as an employee and Thompson had asked her about cocaine and she indicated that she had used cocaine before but did not use it at present.

    
    

14. Officer Thompson returned to the licensed premises on January 15, 1981, in the company of Beverage Officer Ted Fagan. When entering the licensed premises, they spoke to the bar manager, Rollins Donald, and Thompson asked Donald if he wanted to smoke some "grass," meaning marijuana. Donald said that he did not "mess with it" but that "you can go back there," referring to the lounge area and Donald stated that if someone comes in, "I will let you know."

    
    

15. Officer Thompson and Fagan then entered the licensed premises and sat in the northwest corner of the discotheque portion of the bar at a table where four or five females were located. One of those females was the individual "Debra" an employee in the licensed premises who worked as a dancer and who is the same "Debra" referred to before in this matter. There were other dancers employed in the licensed premises who were seated around the table. While at the table, cigarettes were passed around and smoked by those persons seated at the table, with the exception of the officers, and those persons included the dancers employed in the licensed premises and a barmaid employed in the licensed premises. The cigarettes that were being smoked had an aroma which was similar to burning marijuana and was identified by the two officers who have a knowledge in the identification of burning marijuana.

    
    

16. Thompson, while seated at the table, struck up a conversation with "Debra" and asked her about purchasing marijuana. She then went to another table and returned with a man and after conversing with that man in the presence of "Debra," Thompson purchased marijuana for $6.00 paid to the man. This marijuana is also known as cannabis sativa L. Thompson had identified his request to "Debra" as being a request for "smoke." On the subject of bar management, the Respondent goes to the licensed premises four to six times a week. Visits which the Respondent makes to the licensed premises are during the daylight hours or from noon through the afternoon. She has instructed the manager Donald that she does not like to have narcotics in the lounge and to refuse the entrance of "undesirables." The business has a policy against the usage of drugs by employees. Persons who are employed by the licensed premises are asked if they use drugs and fired if they do. The manager, Rollins Donald, hires employees and after the incidents in question, fired all the employees at the licensed premises. The nude dancers were employed in the licensed Premises for a period of five to six months; however, following the instance of the current Administrative Complaint, the business no longer employs the nude dancers.

17. The police have been contacted about drug violations in the past.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action, in view of the Notice to Show Cause/Administrative Complaint placed against the Respondent and the request for hearing made by the Respondent pursuant to Subsection 120.57(1), Florida Statutes.

    
    

19. By Count One (1) to the Notice to Show Caused Administrative Complaint, the petitioner attempts to make the licensee responsible for the acts of a person identified as Debra Lynn Hart. This reference to Debra Lynn Hart is taken to mean the person identified as "Debra" in the Findings of Fact. "Debra" is accused of unlawfully soliciting or conspiring with a person identified as "Dennis" to sell and/or deliver cannabis to Beverage Officer R. Thompson, in violation of Section 893.13, Florida Statutes. The "Dennis" referred to in the accusation is concluded to be the "Dennis" who is mentioned in the Findings of Fact.

    
    

20. In examining Section 893.13, Florida Statutes, this provision has numerous sections which make it a crime to have certain association with the substance cannabis, also known as marijuana and cannabis sativa L. From the nature of the allegation, it appears that the agency is attempting to charge that portion of the Section 893.13, Florida Statutes, making it unlawful to sell, manufacture, or deliver or possess with intent to sell, manufacture or deliver, a controlled substance, to include cannabis. The subject "Dennis" did in fact sell marijuana and was aided in this event by the employee "Debra." Although the complaint in this count refers to Hart's contribution as being a matter of solicitation and conspiracy with "Dennis," in the sale of the cannabis to Thompson, these terms are taken to mean direct participation in the sale and it is concluded that Debra Lynn Hart violated Section 893.13, Florida Statutes.

    
    

21. The Respondent was unaware of the acts of her employee which lead to the sale of the cannabis to Officer Thompson and in considering her responsibility for the matter, that decision is reached realizing that Koenemann is not the absolute insurer against violations by persons in the licensed premises. See W. C. Woodberry v. State Beverage Department. 219 So.2d 47 (Fla. 1st DCA 1969). In the absence of direct participation or knowledge on he part of the licensee, to find the licensee responsible, the licensee must be shown to be negligent or lacking in diligence. See G & B of Jacksonville, Inc. v. State of Florida, 366 So.2d 877 (Fla. 1st DCA 1979). This solitary instance involving the sale to Officer Thompson is insufficient to establish that the Respondent was negligent or lacking in diligence and for that reason, the Respondent is not held to have violated Section 561.29, Florida Statutes, and is not subject to the penalties found therein.

    
    

22. Count Two (2) to the Notice to Show Caused Administrative Complaint accuses the Respondent of violating Section 562.131, Florida Statutes, in view of alleged solicitation by Debra Lynn Hart, also known as "Debra," of Beverage Officer R. Thompson, to buy her an alcoholic beverage, namely beer. There was no testimony offered in the course of the hearing which demonstrated any solicitation by "Debra" of Officer Thompson for purposes of buying an alcoholic beverage. Therefore, there has been no demonstration that the Respondent, through the person of her employee Debra Lynn Hart, has violated Section 562.131, Florida Statutes.

23. Count Three (3) to the Notice to Show Caused Administrative Complaint charges that the Respondent is held to answer for the acts of a person Gwendolyn Henry, who was the alleged agent, servant or employee of the Respondent who purportedly unlawfully sold and/or delivered cannabis to Officer J. Bates, in violation of Section 893.13, Florida Statutes. On January 13, 1981, there was a sale of marijuana to Officer Bates by a person identified as "Tiny"; however, there was no proof to the effect that the person "Tiny" is Gwendolyn Henry. Consequently, the Petitioner has failed to prove a violation by Gwendolyn Henry of the provision Section 893.13, Florida Statutes, and has failed to show that the Respondent has violated Section 561.29, Florida Statutes, or is subject to the penalties therein.

    
    

24. Count Four (4) to the Notice to Show Caused Administrative Complaint accuses the Respondent with the violation related to acts by her agent, servant or employee, Debra Lynn Hart, also known as "Debra," in concert with a black male identified as "Cookie," in which Hart solicited or conspired with "Cookie" to sell and/or deliver cannabis to Beverage Officer Thompson. This purportedly violated Section 893.13, Florida Statutes. As a consequence, the licensee is accused of violating Section 561.29, Florida Statutes. There was proof to the effect that "Debra" entered into, and participated in, a sale of marijuana to Officer Thompson on January 15, 1981. Nonetheless, the individual with whom she was participating was not identified and there has been no satisfactory showing that that unidentified black male is the person "Cookie." Consequently, it is not established that Debra Lynn Hart participated in the sale of cannabis to Officer R. Thompson, in league with "Cookie" and there being no finding of a violation of Section 893.13, Florida Statutes, related to "Debra" and "Cookie," the licensee has not violated Section 561.29, Florida Statutes, and should not be held to any penalties associated with that provision.

    
    

25. Count Five (5) to the Notice to Show Caused Administrative Complaint charges the licensee with maintaining a place which is resorted to by persons using controlled substances for the purpose of using those substances, namely cannabis and cocaine, and in violation of Section 893.13)2)(a)5., Florida Statutes. 2/ This alleged action on the part of the licensee is said to be in violation of Subsection 561.29 (1)(a), Florida Statutes, and subjects the licensee to the penalties found therein. These acts were also allegedly performed by the agents, servants or employees of the licensee.

    
    

26. There can be no question that between January 10, 1981, and January 15, 1981, the business being maintained by the Respondent was a place in which patrons and employees used controlled substances and in which drug sale transactions occurred for those purposes. While the licensee did not openly condone this activity on the part of her patrons, by direct participation or knowledge of the activities, she may be culpably responsible for the alleged violations due to her negligence or lack of diligence.

    
    

27. In insuring against possible culpability due to negligence or lack of diligence, the licensee may not take the position that it suffices to hire a full-time manager and make occasional visits to the licensed premises. This is not adequate to protect the owner from vicarious responsibility for the violations of her employees and patrons in the licensed premises. On this occasion, there is competent substantial evidence to demonstrate that the licensee did not make adequate provision to protect against drug sales and usage in the licensed premises, both on the part of employees and patrons, and the licensee is not relieved from accountability for these violations. The licensee has been negligent and has failed to use the necessary diligence in protecting against the violations that occurred between January 10, 1981, and January 15,

    1981. This was not a matter of an isolated event over which the licensed owner could not be expected to be the absolute insurer against, this was a matter of wholesale usage of these controlled substances through a sufficient period of time for the owner, if exercising diligent control, to have been expects to ascertain the violations. Instead, she relied upon a manager who openly condoned the use of controlled substances. The result is one which leads to the conclusion that the owner was in violation of Subsection 893.13(2)(a)5., Florida Statutes, through her negligence and lack of diligence in administering the business premises and having been found responsible for a violation of that provision, the licensee is also in violation of Subsection 561.29(1)(a), Florida Statutes, and subject to the penalties set forth in that section.

    
    

28. Count Six (6) to the Notice to Show Caused Administrative Complaint alleges that the licensee in her person or through her agents, servants, and/or employees kept or maintained a public nuisance, namely the licensed premises, in the sense of maintaining that building or place for purposes of visitation by persons who would unlawfully use controlled substances identified in Chapter 893, Florida Statutes, or where such premises were used for the illegal keeping, selling or delivering of those controlled substances, contrary to Section 823.10, Florida Statutes, 3/ and thereby in violation of Subsection 561.29(1)- (c), Florida Statutes. This violation allegedly occurred between January 10, 1981, and January 15, 1981.

    
    

29. For reasons discussed in considering Count Five (5) the licensee was negligent and failed to exercise due diligence at the licensed premises and for that reason is responsible for violation of Section 823.10, Florida Statutes, in that the licensed premises are deemed to be a "public nuisance" within the meaning of that law, for the time period January 10, 1981, through January 15, 1981. Additionally, for reasons as previously discussed in Count Five (5), the violation of Section 823.10, Florida Statutes, constitutes a "nuisance" at the licensed premises within the meaning of Subsection 561.29(1)(r), Florida Statutes, and the licensee is held to the penalties associated with such a violation.

Having considered the facts of this case, the conclusions of law reached, the prior history of the license and the argument of counsel, it is

RECOMMENDED:

That Counts One, Two, Three and Four of this Administrative Complaint be DISMISSED and in view of the violations established in Counts Five and Six to the Administrative Complaint, that the beverage license held by Toney Hatfield McDonald Koenemann for purposes of doing business as McDonald's Liquor Store and Lounge in Miami, Dade County, Florida, License No. 23-2363, Series 4-COP, be suspended for a period of ninety (90) days from the entry of the final order in this action.

DONE and ENTERED this 15th day of June, 1981, in Tallahassee, 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 15th day of June, 1981.

ENDNOTES

1/ The parties to this action in the person of their counsel have offered proposed findings of fact, conclusions of law and a recommended disposition in this matter. These items have been reviewed prior to the entry of this Recommended Order. To the extent that the aforementioned items are consistent with the Recommended Order, they have been utilized. To the extent that the matters are not consistent with this Recommended Order, they are hereby rejected.

2/ (2)(a) It is unlawful for any person:

* * *

5. To keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place which is resorted to by persons using controlled substances in violation of this chapter for the purpose of uaing these substances, or which is used for keeping or selling them in violation of this chapter.

COPIES FURNISHED:

Barry F. X. Purnell, Esquire General Counsel

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

John W. Black, Esquire Robert J. Black, Esquire Gerald McBride, Esquire BLACK, BLACK & McBRIDE, P.A.

420 South Dixie Highway Suite 2-B

Coral Gables, Florida 33146

Docket for Case No: 81-000499

Orders for Case No: 81-000499