STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO. )

)

Petitioner, )

)

vs. ) CASE NO. 81-524

) LASH, INC., d/b/a PERRINE PUB, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, hearing was held in Miami, Florida, on April 9, 1981, before the Division of Administrative Hearings and its duly designated Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: William A. Hatch, Esquire

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

For Respondent: Lana Abraham, Esquire

Sy Chadroff, Esquire

200 Southeast First Street Miami, Florida 33131

This case was presented through a Notice to Show Cause/Administrative Complaint issued by Petitioner, seeking revocation or suspension of Respondent's alcoholic beverage license No. 23-0898, Series 2-COP, or imposition of civil penalty, based on the following charges:

1. On or about the 10th day of January, 1981, you, LASH, INC., licensed under the beverage laws, and/or your agent, servant, or employee, ANGELA MARIA DICKENS, at your licensed premises did unlawfully sell and/or deliver a controlled substance to wit: methaqualone (quaaludes) to Beverage Officer P. M. ROBERTS, in violation of Section 893.13 and 551.29 of the Florida Statutes.

2. On or about the 14th day of January, 1081, you, LASH, INC., licensed under the beverage laws and/or your agent, servant, or employee, ANGELA MARIA DICKENS, at your licensed premises, did unlawfully sell and/or deliver a controlled substance to wit: methaqualone (quaaludes) to Beverage Officer P. M. ROBERTS, in violation

   of Section 893.13 and 561.29 of the Florida Statutes.

3. On or about the 14th day of January, 1981, you, LASH, INC., licensed under the beverage laws and/or your agent, servant, employee, ANGELA MARIA DICKENS, at your licensed premises, did unlawfully sell and/or deliver a controlled substance to wit: methaqualone (quaaludes to Beverage Officer R. JONES, in violation of Section 853.13 and 561.29 of the Florida Statutes.

4. On or about the 14th day of January, 1981, you, LASH, INC., licensed under the beverage laws, and/or your agent, servant, or employee, ANGELA MARIA DICKENS, at your licensed premises did unlawfully sell and/or deliver a controlled substance to wit: cocaine to Beverage Officer

   P. A. ROBERTS, in violation of Section

   853.13 and 561.29 of the Florida Statutes.

5. On or about the 16th day of January, 1981, you, LASH, INC., licensed under the beverage laws and/or your agent, servant, or employee, MARTA JOY HORSTEIN, at your licensed premises did unlawfully sell ad/or deliver a controlled substance to wit: methaqualone (quaaludes) to Beverage Officer B. JONES in violation of Section 593.13 and 561.29 of the Florida Statutes.

6. On or about the 25th day of January, 1981, you, LASH, INC., licensed under the beverage laws, and/or your agent, servant, or employee, MARTA JOY HORSTEIN, at your licensed premises did unlawfully Possess controlled substances to wit: cocaine and hashish, In violation of Section 893.13 and 561.29 of the Florida Statutes.

7. Between January 10, 1981 and January 29, 1981, you, LASH, INC., D/B/A PERRINE PUB, licensed under the beverage laws, license NO. 23-0898: 2-COP, your agent, servant, employee, did maintain a place, to wit: your licensed promises at 600 Perrine Avenue, Perrine,

   Dade County, Florida, which is resorted to by persons using controlled substances for the purpose of using these controlled

   substances, to wit: cocaine and methaqualone (quaaludes) or which place is used for keeping or selling them in violation of

   F.S. 893.13(1)(a)(c)(a) within F.S. 551.29(1)(a).

8. Between January 10, 1981 and January 25, 1981, you, LASH, INC., D/B/A PERRINE PUB, licensed under the beverage laws, license number

23-0898: 2-COP, your agent, servant, 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. 551.29(1)(d).

FINDINGS OF FACT

1. On January 10, 1981, Beverage Officer P. M. Roberts entered the licensed premises of Perrine Pub to Investigate alleged drug violations. He engaged In a conversation with the bartender, Angela Maria Dickens, an employee of the licensee. Dickens subsequently offered to sell Roberts methaqualone (quaaludes). Roberts accepted and ordered the tablets for which he paid Dickens

   25 dollars. Dickens obtained the tablets from a storage point behind the bar and delivered them openly to Roberts by placing them on the bar.

   
   

2. On January 14, 1981, Beverage Officer Roberts returned to the licensed premises of Perrine Pub accompanied by Beverage Officer R. Jones. After engaging in a conversation concerning drugs, the officers each purchased methaqualone (quaaludes) from Dickens. The tablets were delivered openly from behind the bar, with Roberts purchasing ten tablets and Jones purchasing five.

   
   

3. Roberts also purchased one gram of cocaine from Dickens on January 14, 1981. A third person, later identified as Lawrence Donovan, was involved in this transaction. Dickens gave Donovan four 20 dollar bills after receiving four 20 dollar bills from Roberts. Donovan then left the bar, subsequently returning with a package he gave to Dickens. She then delivered the gram of cocaine to Roberts.

   
   

4. On January 16, 1981, Beverage Officers Roberts end Jones returned to the licensed premises of Perrine Pub. The officers attempted to purchase drugs from Dickens, who was at the door collecting cover charges. Dickens referred the officers to Marta Horstein who was on duty as the bartender. Jones purchased four methaqualone tablets (quaaludes) from Horstein for ten dollars. Jones gave Dickens one of these methaqualone tablets, which she consumed on the premises.

   
   

5. On January 29, 1981, Beverage Officer O. Sams and P. Roberts arrived at the licensed premises to serve an Emergency Order of Suspension. They arrested Marta Horstein as she arrived by automobile. She was apprehended outside the premises and ordered inside by the officers where they searched her incidental to the arrest. The search of her purse revealed substances which she admitted were cocaine and hashish.

   
   

6. Respondent Lash, Inc., d/b/a Perrine Pub, holds beverage license Number 23-0898, Series 2-COP. Richard Breeder is the sole stockholder of this corporation, which he actively manages. He has been the owner since 1976, and has not previously been charged with any beverage law violations. Breeder has an announced policy against the sale or use of drugs on the premises, and has fired employees for such use.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action. Petitioner has issued an Emergency Order of Suspension against Respondent. However, the order has been stayed pending conclusion of these proceedings.

   
   

8. The parties submitted proposed findings of fact. To the extent these proposed findings have not been adopted or are inconsistent with the findings herein, they have been specifically rejected as irrelevant or not supported by the evidence.

   
   

9. Subsection 893.13(1)(a), Florida Statutes (1979), provides in part:

   
   

   Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.

   
   

10. Petitioner demonstrated that sales of controlled substances prohibited by the above-cited statute took place on the licensed premises as alleged in Counts one through five of The Notice to Show Cause. These sales and deliveries were made by employees of the Respondent while working on the premises.

    
    

11. Respondent contends that the employee Marta Horstein acted only as a go-between in the January 16 transaction, and that Count 5 should therefore be dismissed. This contention is rejected since Horstein made an actual delivery of drugs to the investigating officer in violation of the above-cited Provision.

    
    

12. Respondent also moves to dismiss Count 6 involving the seizure of controlled substances incidental to the January 29 arrest of Horstein outside the licensed premises. This motion should be granted since Petitioner failed to prove that Horstein was on duty as an employee at the time of arrest or that she would have voluntarily entered the licensed premises with the drugs in her possession.

    
    

13. Counts 7 and 8 charge Respondent with maintaining a place which is resorted to by persons for the unlawful use, keeping, or selling of controlled substances in violation of Sections 893.13 and 823.10 (public nuisance). It was not shown that the level of drug activity in the licensed premises was sufficient to support these charges and they should be dismissed.

    
    

14. Section 561.29, Florida Statutes, provides in part:

    
    

    1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the Division upon sufficient cause appearing of:

       1. Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state.

          
          

15. The evidence herein establishes that violations of Florida law did occur on the premises and employees of the Respondent were involved. In order for a liquor license to be revoked or suspended, it must also be demonstrated that the licensee is guilty of intentional wrongdoing, negligence or lack of diligence, and not merely that his employees are involved in the prohibited activity. Thodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969).

    
    

16. In the case of Pauline v. Lee, 14.7 So.2d 359 (Fla. 2nd DCA 1962) the alcoholic beverage license of a bar was revoked where five employees offered to commit Prostitution with beverage officers during a three day period. IN upholding the revocation the Court stated:

    
    

    Certainly it IS not the intent

    or the purpose of the law that the licensee must be present during any and every violation of law by his employees in proceedings for revocation of an alcoholic beverage license under said section

    [561.26 (1)(a)]

    
    

    The persistence and practiced manner with which the solicitations described by the state's witnesses were made sufficient to permit a factual inference leading to the conclusion that such violations of law were either fostered, condoned or negligently overlooked by the licensee, notwithstanding his absence from the premises on the dates in question.

    
    

17. A similar result was reached in the Torch Club, Inc. v Keating, 174 So.2d 746 (Fla. 2nd DCA 1965) in which an alcoholic beverage license was revoked where nine agents of the licensee solicited drinks and/or offered to commit prostitution on four different days.

    
    

18. The cases of Pauline v. Lee and the Torch Club, Inc. v. Keating, are germane since offers to commit prostitution, like drug transactions, are generally limited to the participants and are not evidenced by flagrant and immediately observable acts such as may occur in the case of a lewd dance performance.

19. As was stated in G&B of Jacksonville, Inc. v. State, 371 So.2d 138 (Fla. 1st DCA 1979), upholding a beverage license suspension:

    
    

    While the licensee is not an insurer that an agent or servant will not

    in any particular violate any law of the State of Florida, such licensee nevertheless has a duty to exercise reasonable care and diligence to see that the licensed place of business is conducted in a lawful manner and that its employees do not violate any of the laws of the State of Florida.

    We have here a record that presents several acts as charged on the part of three separate employees/servants of

    the licensee. We are not here presented with a single isolated occurrence.

    If a licensee does not maintain sufficient intelligence with reference to the activities at his or its licensed premises so as to know that two or more of its employees are engaged in such activity as was herein established, then such licensee must beheld to have been lacking in reasonable diligence in the proper management of its licensed premises.

    
    

20. The recurring sales of controlled substances by employees of Perrine Pub were made possible by Respondent's failure to supervise the licensed premises and its employees in a reasonably diligent manner. In failing to exercise the required supervisor diligence, Respondent is subject to loss of its alcoholic beverage license. Since these are Respondent's first violations, license suspension rather than revocation is recommended.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in

Counts one through five of the Notice to Show Cause. It is further

RECOMMENDED that the charges contained in Counts six through eight be dismissed. It is further

RECOMMENDED that Respondent's Beverage License No. 23-0898, Series 2-COP be suspended for a period of thirty (30) days.

DONE AND ENTERED this 19th day of May, 1981 in Tallahassee, Leon County, Florida.

R. T. CARPENTER, 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 19th day of May, 1981.

ENDNOTE

1/ The parties stipulated to the laboratory analysis reports and chain of custody matters which establish that the substances described herein are controlled under Section 893.13, Florida Statutes (1979).

COPIES FURNISHED:

William A. Hatch, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Lane Abraham, Esquire By Chadroff, Esquire

200 Southeast First Street Miami, Florida 33131

Docket for Case No: 81-000524

Orders for Case No: 81-000524