STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 81-1816
) LARRY E. BUNTON AND RONALD L. ) JENNINGS T/A LUCKY'S RACK )
AND SNACK, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on July 24, 1981, in Panama City, Florida.
APPEARANCES
For Petitioner: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondents: Larry E. Bunton and
Ronald L. Jennings, pro se 8503-A Thomas Drive and 7502 Thomas Drive
Panama City, Florida
Pursuant to a notice to show cause filed and served July 22, 1981, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner), has charged the Respondents Larry E. Bunton and Ronald L. Jennings t/a Lucky's Rack and Snack with three counts of violations of various portions of Chapters 893, 823 and 561, Florida Statutes. The Department seeks to revoke, suspend or otherwise discipline the subject beverage licensees, charging in the notice to show cause that the Respondents or their agents, servants, or employees unlawfully sold or delivered a controlled substance named or described in Section 893.03(2)(c), Florida Statutes, also in violation of Section 893.13(1)(a), Florida Statutes, and Section 361.29(1)(a), Florida Statutes. The Respondents are charged with maintaining the licensed premises as a place resorted to by persons using controlled substances or maintaining a place used for keeping or selling such substances in violation of Section 893.12(2)(a)(5) and therefore, also in violation of Section 563.29(1)(c), Florida Statutes.
Finally, the Respondents are charged with keeping or maintaining a public nuisance on the licensed premises by maintaining; the premises as a place visited by persons for the purpose of unlawfully using the substances referred to in the above authority or which is used for the illegal keeping, selling or
delivering of such substances contrary to the above authority, as well as Section 823.10, Florida Statutes.
The emergency suspension order related to the alleged transactions was dated July 17, 3981, and filed July 22, 1981, and served upon that date. The cause came on for hearing on July 24, 1981. During the course of the hearing the parties stipulated to the admission of the reports of the laboratory analysis is conducted by the laboratory of the Florida Department of Law Enforcement regarding the substances allegedly purchased on the premises of the Respondents. (Exhibit 2). Additionally, the Petitioner introduced Exhibit 1 consisting of the Respondents' license, Number 13-490, Series 2-COP. The Petitioner presented two Witnesses and the Respondents presented one witness.
FINDINGS OF FACT
The Petitioner is an agency of the State of Florida which has as its responsibility licensure and regulation of beverage license holders in the State. The Respondents hold Division of Alcoholic Beverages and Tobacco License Number 13-490, Series 2-COP.
At all times pertinent here to Larry E. Bunton and Ronald L. Jennings were the sole owners and operators of the license and licensed premises, which is located at 8503-A Thomas Drive, Panama City, Florida. Between the dates of June 4, 1981, and July 17, 1981, a joint investigation of the subject Respondents was conducted by the Division of Alcoholic Beverages and Tobacco and the Bay County Sheriff's Office. On the evening of June 24, 1981, Investigator Mike Broadway and Agent Al Whitfield of the Bay County Sheriff's Department and the Division of Alcoholic Beverages and Tobacco, respectively, entered the licensed premises for the purpose of ascertaining whether controlled substances or drugs were either used, dispensed or sold on the premises. On that occasion they made the acquaintance of one Wendall Earl Holt ("Windowpane") and after talking with him inside the licensed premises and negotiating the purchase of drugs, the three went out into the parking lot by the front door of the licensed premises at which location Officers Broadway and Whitfield purchased three methaqualone tablets from "Windowpane" for ten dollars. Methaqualone or "quaalude" is a controlled substance within the purview of Chapter 893 Florida Statutes.
The next evening on June 25, 1981, Officers Broadway and Whitfield entered the licensed premises once again, ordered a beer and engaged the bartender, Dan Barbeau, in conversation. During the course of that conversation they inquired of him of the possibility of purchasing drugs and Barbeau indicated that he was the "distributor" for "Windowpane" or Wendall Earl Holt. Shortly thereafter, in the course of the conversation, the two officers and the bartender agreed upon the sale and purchase of three round white tablets, which later proved to be methaqualone, from Dan, the bartender. This transaction occurred in plain view, over the top of the bar, during the course of which he handed to them the three tablets in return for a ten dollar-bill.
On July 6, 1981, Officers Whitfield and Broadway again entered the bar and engaged in conversation with Dan Barbeau. They inquired of him about the possibility of purchasing a thousand to five thousand methqualone tablets. Barbeau agreed to make arrangements for the purchase of that quantity of methaqualone and also indicated that he could obtain a supply of marijuana. Barbeau then introduced the officers to an individual known as "Stargazer" and the Officers gave Dan, the bartender, thirty-five dollars to purchase a bag of
marijuana from "Stargazer." They observed Barbeau keep out five dollars of that purchase for himself.
The Officers visited the bar again on July 9, 1981, and bought a forty- dollar bag of marijuana from "Stargazer" at the bar, giving him the money at the bar, whereupon he went outside to obtain the goods. He returned to the bar and delivered the marijuana to them inside the licensed premises.
On July 15, 1981, the Officers returned to the bar and were inside drinking beer and shooting pool when "Windowpane" Holt arrived and offered to sell them more methaqualone or quaalude tablets. This negotiation occurred inside the premises and the three then went outside to the parking lot where the Officers bought one tablet from Bolt.
Thus, during six or seven visits to the licensed premises, the Officers made five separate drug purchases of illegal controlled drugs. These transactions occurred on June 24 and 25, July 6, July 9, and July 15, 1981. Two of the five purchases were made directly from the licensees' bartender, Dan Barbeau. The other purchases were made from the two patrons named above. On one occasion the acting manager was made aware of controlled substances on the premises because one of the Officers showed him a methaqualone tablet he had just purchased. During the course of the investigation and at no time during any of the transactions referred to above was either of the licensee-owners observed on the premises, nor were they observed dealing in drugs. They were not shown to be involved in any of the subject purchases of drugs. There was no showing that the licensees had any direct knowledge that drug transactions were occurring on the premises. The Respondents have been licensed for only a few months and have never been charged with a violation of the beverage or drug laws previously.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding, Section 120.57(1), Florida Statutes.
Pursuant to the Notice to Show Cause the licensees have been charged with violating Sections 893.03(3)(c), 893.13(2)(a)(5), and 823.10, Florida Statutes, contrary to Section 561.29(1)(c), Florida Statutes.
Section 883.03(2)(c) concerns the prohibition of the sale or delivery of controlled substances as defined in Section 893.03.
Section 861.29(1), Florida Statutes, provides in pertinent part as follows:
The division [of Alcoholic Beverages and Tobacco] 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:
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 . . . or engaging in or
permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state. . . .
* * *
(c) Maintaining a nuisance on the licensed premises.
Section 893.13(2)(51(5), Florida Statutes, makes it unlawful for any person:
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 using these substances, or which is used for keeping or selling them in violation of this chapter.
Section 823.10, Florida Statutes, provides in pertinent part as follows:
Any store, shop . . . building . . . or any place whatever, which is visited by persons for the purpose of unlawfully using
any substance controlled under chapter 893 or any drugs as described in chapter 500, or which is used for the illegal keeping, selling, or delivering of the same, shall be deemed a public nuisance. No person shall keep or maintain such public nuisance or aid and abet another in keeping or maintaining such public nuisance.
The record in this cause, inasmuch as it reveals that five illegal drug purchases were made on the subject premises in less than a month's time, clearly demonstrates that the Respondents' licensed premises were regularly resorted to by individuals dealing in controlled substances as defined in the above authority, to wit, methaqualone and cannabis saliva. Inasmuch as five drug transactions were shown to have occurred in less than a month's time, the record clearly establishes that drug transactions were occurring on the licensed premises on a regular, repetitive basis. The record reflects that on three of these occasions patrons of the licensed premises were engaged in drug transactions, but on two occasions an employee, the, bartender, engaged directly in the sale of illegal controlled substances. The record does not reflect, however, that the Respondents intended that the premises be operated for the purpose of effectuating drug transactions or drug usage thereon. The record also reflects that the Respondents themselves were not on the premises at the time of any of the subject drug transactions.
The case of Pauline vs. Lee, 147 So.2d 359 (Fla.2d DCA 1962), stands for the proposition that before a liquor license can be suspended or revoked for a violation of law on the licensee's premises, the licensee should be found to have been culpably responsible for the violation through or as a result of his intentional wrongdoing, negligence, or lack of diligence. The Court went on to hold that where violations occur in a persistent and practiced manner that they
may permit an inference that such activities were either fostered, condoned, or negligently overlooked by the licensee.
G & B of Jacksonville, Inc. vs. Department of Business Regulation, 371 So.2d 138, 139 (Fla. 1st DCA 1979), involved am action similar to the instant one arising from charges instituted pursuant to Section 561.29, Florida Statutes. The G & B case is similar to the case at bar in that it arose from illegal activity engaged in by the licensees agents or employees. The Court in that decision held that although the holder of a license to sell alcoholic beverages
[I]s 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 . . . We have here a record that presents several acts as charged on the part of three separate employee[s]
. . . . We are not hereby presented with a single isolated occurrence . . . If a licensee does not maintain sufficient intelligence with reference to 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 be held to have been lacking in reasonable diligence in the
proper management of its licensed premises. (Emphasis supplied.)
Thus, this case, as well as the Pauline decision, supra, stands for the proposition that a licensee must maintain sufficient contact and intelligence with regard to the activities actually occurring on his licensed premises so that he may prevent such conduct or its repetition. Such a licensee must exercise reasonable diligence and care in seeing that the operation at the licensed place of business is conducted in a lawful manner. The Court in the G & B case went on to hold that where the violations occurred on two different days in a "persistent, practiced manner" then the licensee could not "remove itself from the responsibility by not being present on the premises or by claiming ignorance of the repealed violations."
In connection with the theory and principle enunciated in these two decisions, it is noteworthy that in the instant case the violations described in the above findings of fact, to wit: the drug transactions observed by Officers Whitfield and Broadway occurred on a repetitive basis at the licensed premises (five times in less than a month) and at least two of those transactions involved the direct participation of an employee of the licensees, the bartender. The other transactions occurred with individuals to whom the Officers were introduced by the same bartender.
The record in this proceeding thus clearly establishes the violations alleged. It establishes without question that the sale, use, and delivery of controlled drugs occurred on the Respondents' licensed premises as described in the above findings of fact. The occurrence of the drug transactions on the licensed premises on a repetitive basis, the fact that at least two of the drug
sales occurred in open view on top of the bar of the licensed premises with the participation of the bartender/employee, coupled with the fact that the licensees themselves were never Oil the premises during the five occasions during which drugs were purchased by the Officers, establishes that this unlawful conduct was the direct result of the Respondents' failure to exercise duo and reasonable care and diligence to assure that unlawful activities did not occur on the licensed premises, an omission proscribed by the above authority.
It is true that the Respondents remonstrated that their policy was to prohibit the possession, use and transactions involving controlled drugs on the licensed premises and that they had firmly and unequivocally instructed all employees to bar the use or possession of drugs or those persons using and possessing drugs from the licensed premises. It is also true that the Respondents immediately discharged the offending bartender upon learning of his illegal activity. The record unfortunately establishes, however, that the Respondents' policy suffered for want of diligent execution. The Respondents were shown not to be on the licensed premises during any of the times when the Officers were making their investigation which culminated in a drug purchase, although licensee Jennings was observed on the licensed premises on one occasion not associated with the time of one of the subject drug purchases. The record also establishes that the manager of the bar, who established through his testimony that the policy was to exclude drugs, drug-users and drug transactions from the premises also was shown an Illegal methaqualone tablet by Officer Whitfield during his undercover investigation, such that he knew it to be an illegal drug and he made no effort to exclude Officer Whitfield or the illegal drug from the premises. He took no action to correct what was demonstrated to him to be illegal activity by either reporting to his employers or government authorities. Such a fact pattern clearly evidences lack of diligence and negligence on the part of the licensees, management and employees and constitutes a direct causative factor in the maintenance of the licensed premises as a place to which drug-users and dealers resort to transact business involving illegal drugs in violation of the above authority.
It can thus only be concluded that the Respondents, although they did not intentionally allow or condone the presence, use or sales of illegal drugs on the licensed premises, were negligent in overlooking the drug violations when they should have been obvious had they spent sufficient time on their licensed premises "maintaining sufficient intelligence with reference to activities at .
. . [on the] licensed premises so as to know that . . . employees are engaged in such activity . . . ." There is no question that the facts of record clearly establish that the licensed premises were used for the delivery and sale of controlled substances in violations of Sections 823.10, 893.13(2)(a)(5), and 561.29(1)(a)(c), Florida Statutes.
The undersigned is, however, impressed with the fact that Respondents have only been in business for a short period of time and have never before been licensed or operated pursuant to the Beverage Laws. It was not shown that they had any actual knowledge of the illegal activity conducted on their licensed premises nor that they promoted or condoned it either directly or indirectly. The undersigned is also impressed with the fact that they have never been charged with any violations of the Beverage Laws prior to this instance. Accordingly, in view of the vicarious nature of the Respondents' responsibility for the violations proven, and especially with a view toward the principle in law that outright revocation of a beverage license is a most serious and drastic penalty, even in a flagrant case . . .," Taylor vs. State Beverage Department,
194 So.2d 321, 329 (Fla.2d DCA, 1967) it is, upon consideration of fact conclusions of law and evidence in the record;
RECOMMENDED that a final order be entered by the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, suspending the license of Larry E. Bunton and Ronald L. Jennings t/a Lucky's Rack and Snack, for a period of sixty days, which suspension shall commence with the date the emergency suspension order referred to hereinabove was initially served on the Respondents and with credit allowed the Respondents for the number of days the license has been suspended prior to entry of tile final order herein, beginning with the initial service of that suspension order.
RECOMMENDED this 14th day of August, 1981, in Tallahassee, Florida.
P. MICHAEL RUFF, 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 14th day of August, 1981
COPIES FURNISHED:
James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Larry E. Bunton and Charles A. Nuzum, Director
Ronald L. Jennings Division of Alcoholic 8503-A Thomas Drive and Beverages and Tobacco 7502 Thomas Drive 725 South Monroe Street
Panama City, Florida Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF BUSINESS REGULATION
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,
Petitioner,
vs. CASE NO. 81-1816
LICENSE NO. 13-490 2COP
LARRY E. BUNTON and RONALD
JENNINGS, t/a LUCKY'S RACK AND SNACK,
Respondents.
/
FINAL ORDER
Pursuant to notice this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on July 24, 1981, in Panama City, Florida.
APPEARANCES
For Petitioner: James N. Watson, Jr., Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Larry E. Bunton and
Ronald L. Jennings, pro se 8503-A Thomas Drive and 7502 Thomas Drive
Panama City, Florida
Pursuant to a Notice to Show Cause filed and served July 22, 1981, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner), has charged the Respondents Larry E. Bunton and Ronald L. Jennings t/a Lucky's Rack and Snack with three counts of violations of various portions of Chapter 893, 823 and 561, Florida Statutes. The Department seeks to revoke, suspend or otherwise discipline the subject beverage licensees, charging in the Notice to Show Cause that the Respondents or their agents, servants, or employees unlawfully sold or delivered a controlled substance named or described in Section 893.03(2)(c), Florida Statutes, also in violation of Section 893.13(1)(a), Florida Statutes, and Section 561.29(1)(a), Florida Statutes. The Respondents are charged with maintaining the licensed premises as a place resorted to by persons using controlled substances or maintaining a place used
for keeping or selling such substances in violation of Section 561.29(2)(c), Florida Statutes. Finally, the Respondents are charged with keeping or maintaining a public nuisance on the licensed premises by maintaining the premises as a place visited by persons for the purpose of unlawfully using the substances referred to in the above authority or which is used for the illegal keeping, selling or delivering of such substances contrary to the above authority, as well as Section 823.10, Florida Statutes.
The Emergency Suspension Order related to the alleged transaction was dated July 17, 1981, and filed July 22, 1981, and served upon that date. The cause came on for hearing on July 24, 1981. During the course of the hearing the parties stipulated to the admission of the reports of the laboratory analysis conducted by the laboratory of the Florida Department of Law Enforcement regarding the substances allegedly purchased on the premises of the Respondents. (Exhibit 2). Additionally, the Petitioner introduced Exhibit 1 consisting of the Respondents' license, Number 13-490, Series 2-COP. The Petitioner presented two witnesses and the Respondents presented one witness.
FINDINGS OF FACT
The Petitioner is an agency of the State of Florida which has as its responsibility licensure and regulation of beverage license holders in the State. The Respondents hold Division of Alcoholic Beverages and Tobacco License Number 13-490, Series 2-COP.
At all times pertinent hereto Larry E. Bunton and Ronald L. Jennings were the sole owners and operators of the license and licensed premises, which is located at 8503-A Thomas Drive, Panama City, Florida. Between the dates of June 4, 1981, and July 17, 1981, a joint investigation of the subject Respondents was conducted by the Division of Alcoholic Beverages and Tobacco and the Bay County Sheriff's Office. On the evening of June 24, 1981, Investigator Mike Broadway and Agent Al Whitfield of the Bay County Sheriff's Department and the Division of Alcoholic Beverages and Tobacco, respectively, entered the licensed premises for the purpose of ascertaining whether controlled substances or drugs were either used, dispensed or sold on the premises. On that occasion they made the acquaintance of one Wendall Earl Holt ("Windowpane") and after talking with him inside the licensed premises at which location Officers Broadway and Whitfield purchased three methaqualone tablets from "Windowpane" for ten dollars. Methaqualone or "quaalude" is a controlled substance within the purview of Chapter 893, Florida Statutes.
The next evening on June 25, 1981, Officers Broadway and Whitfield entered the licensed premises once again, ordered a beer and engaged the bartender, Dan Barbour, in conversation. During the course of that conversation they inquired of him the possibility of purchasing drugs and Barbeau indicated that he was the "distributor" for "Windowpane" or Wendall Earl Holt. Shortly thereafter, in the course of the conversation, the two officers and the bartender agreed upon the sale and purchase of three round white tablets, which later proved to be methaqualone, from Dan, the bartender. This transaction occurred in plain view, over the top of the bar, during the course of which he handed to them the three tablets in return for a ten dollar bill.
On July 6, 1981, Officers Whitfield and Broadway again entered the bar and engaged in conversation with Dan Barbour. They inquired of him about the possibility of purchasing a thousand to five thousand methaqualone tablets. Barbour agreed to make arrangements for the purchase of that quantity of methaqualone and also indicated that he could obtain a supply of marijuana.
Barbour then introduced the officers to an individual known as "Star-gazer" and the Officers gave Dan, the bartender, thirty-five dollars to purchase a bag of marijuana from "Star-gazer." They observed Barbour keep out five dollars of that purchase for himself.
The Officers visited the bar again on July 9, 1981, and bought a forty- dollar bag of marijuana from "Star-gazer" at the bar, giving him the money at the bar, whereupon he went outside to obtain the goods. He returned to the bar and delivered the marijuana to them inside the licensed premises.
On July 15, 1981, the Officers returned to the bar and were inside drinking beer and shooting pool when "Windowpane" Holt arrived and offered to sell them more methaqualone or quaalude tablets. This negotiation occurred inside the premises and the three then went outside to the parking lot where the Officers bought one table from Holt.
Thus, during six or seven visits to the licensed premises, the Officers made five separate drug purchases of illegal controlled drugs. These transactions occurred on June 24 and June 25, 1981. Two of the five purchases were made directly from the licensees' bartender, Dan Barbour. The other purchases were made from the two patrons named above. On one occasion the acting manager was made aware of controlled substances on the premises because one of the Officers showed him a methaqualone tablet he had just purchased. During the course of the investigation and at no time during any of the transactions observed on the premises, nor were they observed dealing in drugs. They were not shown to be involved in any of the subject purchases of drugs. There was no showing that the licensees had any direct knowledge that drug transactions were occurring on the premises. The Respondents have been licensed for only a few months and have never been charged with a violation of the beverage or drug laws previously.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding, Section 120.57(1), Florida Statutes.
Pursuant to the Notice to Show Cause the licensees have been charged with violating Section 893.02(2)(c), 893.13(2)(a)(5), and 823.10, Florida Statutes, contrary to Section 561.29(1)(c), Florida Statutes.
Section 893.03(2)(c) concerns the prohibition of the sale or delivery of controlled substances as defined in Section 893.03.
Section 561.29(1), Florida Statutes, provides in pertinent part as follows:
The division [of Alcoholic Beverages and Tobacco] 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:
Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employ-
ment . . . or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state.
. . .
* * *
(c) Maintaining a nuisance on the licensed premises.
Section 893.13(2)(a)(5), Florida Statutes, makes it unlawful for any person:
To keep or maintain at 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 using these substances, or which is used for keeping or selling them in violation of this chapter.
Section 823.10, Florida Statutes, provides in pertinent part as follows:
Any store, shop, building . . . or any place whatever, which is visited by persons for the purpose of unlawfully using any substance controlled under chapter 893 or any drugs as described in chapter 500, or which is used for the illegal keeping, selling, or deliv- ering of the same, shall be deemed a public nuisance. No person shall keep or maintain such public nuisance or aid
and abet another in keeping or maintaining such public nuisance.
The record in this cause, inasmuch as it reveals that five illegal drug purchases were made on the subject premises in less than a month's time, clearly demonstrates that the Respondent's licensed premises were regularly restored to by individuals dealing in controlled substances as defined in the above authority, to wit, methaqualone and cannibis sativa. Inasmuch as five drug transactions were shown to have occurred in less than a month's time, the record clearly establishes that drug transactions were occurring on the licensed premises on a regular, repetitive basis. The record reflects that on three of these occasions patrons of the licensed premises were engaged in drug transactions; but on two occasions an employee, the bartender, engaged directly in the sale of illegal controlled substances.
The case of Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962), stands for the proposition that before a liquor license can be suspended or revoked for a violation of law on the licensee's premises, the licensee should be found to have been culpably responsible for the violation through or as a result of his intentional wrongdoing, negligence, or lack of diligence. The Court went on to hold that where violations occur in a persistent and practiced manner that they
may permit an inference that such activities were either fostered, condoned, or negligently overlooked by the licensee.
G & B of Jacksonville, Inc. v. Department of Business Regulation, 371 So.2d 138, 139 (Fla. 1st DCA 1979), involved an action similar to the instant one arising from charges instituted pursuant to Section 561.29, Florida Statutes. The G & B case is similar to the case at bar in that it arose from illegal activity engaged in by the licensees' agents or employees. The Court in that decision held that although the holder of a license to sell alcoholic beverages
[I]s 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
. . . . We have here a record that presents several acts as charged on the part of three separate employee[s] . . . .
We are not hereby presented with a single isolated occurrence . . . . If a license does not maintain sufficient intelligence with reference to 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 be held to have been lacking in reasonable diligence in the proper management of its licensed premises. (Emphasis supplied.)
Thus, this case, as well as the Pauline decision, supra, stands for the proposition that a licensee must maintain sufficient contact and intelligence with regard to the activities actually occurring on his licensed premises so that he may prevent such conduct or its repetition. Such a licensee must exercise reasonable diligence and care in seeing that the operation at the licensed place of business is conducted in a lawful manner. The Court in the G & B case went on to hold that where the violations occurred on two different days in a "persistent practiced manner" then the licensee could not "remove itself from the responsibility by not being present on the premises by claiming ignorance of the repeated violations."
In connection with the theory and principle enunciated in these two decisions, it is noteworthy that in the instant case the violations described in the above findings of fact, to wit: the drug transactions observed by Officers Whitfield and Broadway occurred on a repetitive basis at the licensed premises (five times in less than a month) and at least two of those transactions involved the direct participation of an employee of the licensees, the bartender. The other transactions occurred with individuals to whom the Officers were introduced by the same bartender.
The record in this proceeding thus clearly establishes the violations alleged. It establishes without question that the sale, use, and delivery of controlled drugs occurred on the Respondent's licensed premises as described in
the above findings of fact. The occurrence of the drug transactions on the licensed premises on a repetitive basis, the fact that at least two of the drug sales occurred in open view on top of the bar of the licensed premises with the participation of the bartender/employee, coupled with the fact that the licensees themselves were never on the premises during the five occasions during which drugs were purchased by the Officers, establishes that this unlawful conduct was the direct result of the Respondents' failure to exercise due and reasonable care and diligence to assure that unlawful activities did not occur on the licensed premises, an omission proscribed by the above authority.
It is true that the Respondents demonstrated that their policy was to prohibit the possession, use and transactions involving controlled drugs on the licensed premises and that they had firmly and unequivocally instructed all employees to bar the use or possession of drugs or those persons using and possessing drugs from the licensed premises. It is also true that the Respondents immediately discharged the offending bartender upon learning of his illegal activity. The record unfortunately establishes, however, that the Respondents' policy suffered for want of diligent execution. The Respondents' were shown not to be on the licensed premises during any of the times when the Officers were making their investigation which culminated in a drug purchase, although Licensee Jennings was observed on the licensed premises on one occasion not associated with the time of one of the subject drug purchases. The record also establishes that the manager of the bar, who established through his testimony that the policy was to exclude drugs, drug-users and drug transactions from the premises also was shown an illegal methaqualone tablet by Officer Whitfield during his undercover investigation, such that he knew it to be an illegal drug and he made no effort to exclude Officer Whitfield or the illegal drug from the premises. He took no action to correct what was demonstrated to him to be illegal activity by either reporting to his employers or governmental authorities. Such a pattern clearly evidences negligence and a lack of diligence on the part of the licensees, management and employees of the licensed premises resulting in the premises to become a place to which drug users and dealers resort for transacting business involving illegal drugs in violation of the above authority.
It can thus only be concluded that the Respondents, although they did not intentionally allow or condone the presence, use or sale of illegal drugs on the licensed premises, were negligent in overlooking the drug violations when they should have been obvious had they spent sufficient time on their licensed premises "maintaining sufficient intelligence with reference to activities at .
. . [on the] licensed premises so as to know that . . . employees are engaged in such activity . . . ." There is no question that the facts of record clearly establish that the licensed premises were used for the delivery and sale of controlled substances in violation of Section 823.10, 892.13(2)(a)(5), and 561.29(1)(a)(c), Florida Statutes.
A review of the record also reveals that the licensees obtained their beverage license on March 12, 1981. The joint investigation which established the administrative charges herein was conducted only slightly more than three months after Respondents were licensed. The brevity of time between the obtaining of their license and the instances of drug dealing uncovered by the investigation is also another indication of the lack of due diligence on the part of the licensees in the management of their licensed premises.
RECOMMENDED ORDER
Based upon a full consideration of the Findings of Fact, Conclusions of Law, the complete record including the transcript of the formal hearing and the exhibits introduced therein, it is hereby
ORDERED that Respondents' beverage license under 12-490, Series 2-COP, trading as Lucky's Rack and Snack is revoked.
DONE and ORDERED this 29th day of September, 1981, in Tallahassee, Florida.
CHARLES A. NUZUM, DIRECTOR
Division of Alcoholic Beverages and Tobacco
725 South Bronough Street Tallahassee, Florida 32301 904/488-7365
COPIES FURNISHED:
James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Larry E. Bunton 8502-A Thomas Drive
Panama City, Florida
Ronald L. Jennings 7502 Thomas Drive Panama City, Florida
P. Michael Ruff, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Aug. 14, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 14, 1981 | Recommended Order | Despite the fact Respondents not on premises when drug transactions took place, suspend license sixty days due to frequency of drug transactions at bar. |
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. LASH, INC., D/B/A PERRINE PUB, 81-001816 (1981)
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs MR. POP`S INC., T/A LYNDA`S LOUNGE, 81-001816 (1981)
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. REX LIQUOR STORES, INC., 81-001816 (1981)
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. JAVIS PUB, INC., 81-001816 (1981)
