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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF BEVERAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1534

) MILTON HAVERTY, t/a OASIS LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, hearing was held in Tampa, Florida on July 14, 1981, before the Division of Administrative Hearings and its duly appointed 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: Milton Haverty

Oasis Lounge

115 South Charleston

Ft. Meade, Florida 33841

This case was presented through an Amended Notice to Show Cause/Administrative Complaint seeking revocation or suspension of Respondent's alcoholic beverage license No. 63-775, or imposition of civil penalty, based on the following charges:

1. On or about June 6, 1980, you MILTON HAVERTY, licensed under the beverage laws, did have a person under the age of 18 years old, to wit: MARTHA ANN BERRY, performing the functions of an employee by selling alcoholic beverages, contrary to

   F.S. 562.13(1).

   
   

2. On or about June 27, 1980 you MILTON HAVERTY, licensed under the beverage laws and/or your agent, servant or employee, to wit: JOHN HAVERTY, did deliver 3 plastic baggies of marijuana on your license premises, for a boat motor which was represented as stolen property, contrary to

   F.S. 812.014, 893.13(1)(1A), authority 561.29.

3. On or about October 3, 1980, you MILTON HAVERTY, licensed under the beverage laws and/or your agent, servant, or employee to wit: JOHN HAVERTY, on your license premises did agree to purchase, for $75.00 in U.S. currency, a stereo receiver, an 8 track player and 2 RG .22 caliber pistols, which was represented as stolen property, contrary to F.S. 812.014(1)(b), authority 561.29.

FINDINGS OF FACT

1. Between June 6 and October 3, 1980, Petitioner's beverage officers and representatives of the Polk County Sheriff's Department conducted an undercover investigation of the Oasis Lounge in Ft. Meade. The business is operated by Milton Haverty who holds alcoholic beverage license No. 63-775. The manager- bartender during this period was John Haverty, the Respondent's son.

   
   

2. On June 12, 1980, Beverage Officer West and Sgt. Allen of the Polk County Sheriff's Department visited the licensed premises in an undercover capacity. On that date, Martha Ann Berry delivered a beer to Beverage Officer West and accepted his payment for it. Both Officer West and Sgt. Allen observed Berry serve beer to another patron. Berry had been reported to the Polk County Sheriff's Department as a runaway juvenile. However, there was no evidence presented in this proceeding to establish that she was under 18 years of age at the time she delivered the alcoholic beverages.

   
   

3. During the June 12, 1980, undercover visit to the licensed premises, the investigators openly discussed stolen property and were subsequently approached by John Haverty who asked that they obtain a T.V. set for him. Haverty and Sgt. Allen had further discussions about the T.V. set and a "stolen" outboard motor on June 20 and 24, 1980, again on the licensed premises.

   
   

4. On June 27, the motor which was represented as stolen property was delivered to Haverty. In exchange for the motor, Haverty gave Allen three bags of marijuana (less than 20 grams) The transaction took place on the licensed premises.

   
   

5. A subsequent sale of electronics equipment represented to be stolen goods was made by Allen to John Haverty on the licensed premises October 3, 1980. Haverty paid Allen $75.00 for these items.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 561.29, Florida Statutes (1979), 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 . . .

         * * *

         (3) The division may impose a civil penalty against a licensee for any violation mentioned in the Beverage Law, or any rule issued pursuant thereto, not to exceed

         $1,000 for violations arising out of a single transaction . . . .

         
         

7. The first charge pertains to the employment of minors, which is prohibited under Section 562.13, Florida Statutes (1979). Since there was no evidence to establish that the individual in question was a minor, this charge must be dismissed. It should be noted that this was the only charge which alleged a direct violation of the Beverage Law.

   
   

8. Subsection 893.13(1)(a), Florida Statutes (1979), prohibits the sale or delivery of marijuana or the possession with intent to sell or deliver. John Haverty's delivery of marijuana to Sgt. Allen as described herein constitutes a violation of this provision and, therefore, of Subsection 561.29(1)(a), Florida Statutes, (1979).

   
   

9. Subsection 812.014(1)(b) Florida Statutes (1979), prohibits dealing in stolen goods. The purchase of the outboard motor and electronic goods represented to Haverty as stolen and believed by him to be stolen were violations of this provision and therefore of Subsection 561.29(1)(a), Florida Statutes (1979).

   
   

10. Respondent's first defense to the stolen property and drug charges is that of entrapment. "[A]n essential element of the offense of entrapment is inducement by police leading to the commission of the crime by one who otherwise bad no intention of committing the crime. Inducement or instigation is to be distinguished from the mere affording of the opportunity to commit a crime . . .

    ." State v. Liptak, 277 So.2d 19, 22 (Fla. 1973)

    
    

11. There was no evidence to indicate that investigators did more than merely provide Respondent's employee with the opportunity to commit these offenses. Rather, Respondent's employee approached the undercover investigators with a request to obtain a T.V. set when he overheard their discussions of stolen property. Further, his possession of marijuana involved a violation of the controlled substance statute which preceded the transaction with investigators.

    
    

12. Respondent's second argument pertains to the not guilty judgment obtained by his employee in a Tenth Circuit Court trial relating to certain of these offenses. However, Subsection 561.29(1)(a), Florida Statutes (1979), provides that whether or not the licensee or his employee is convicted of the offenses in criminal court can not be considered in these administrative proceedings.

    
    

13. The evidence herein established that the alleged violations of Florida law set out in charges two and three were committed on the licensed premises by Respondent's employee. 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 employee is involved in the prohibited activity. Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969).

14. There was no evidence presented to establish that Respondent had personal knowledge of these violations or that he was negligent in supervising the licensed premises. Therefore, license revocation or suspension is not warranted.

    
    

15. Subsection 561.29(3), Florida Statutes (1979), previously cited, provides for fines up to $1,000 per transaction "for any violation mentioned in the Beverage Law, or any rule issued pursuant thereto The alleged sale of alcoholic beverages by a minor was the only charge herein which involved a violation mentioned in the Beverage Law. Since this charge must be dismissed for lack of evidence as indicated above, a fine is likewise not warranted.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner dismiss the Notice to Show Cause.

DONE AND ENTERED this 30th day of July, 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 30th day of July, 1981.

COPIES FURNISHED:

William A. Hatch, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Milton Haverty Oasis Lounge

115 South Charleston

Ft. Meade, Florida 33841

Docket for Case No: 81-001534

Orders for Case No: 81-001534