STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

t/a PIRATE JIM'S RESTAURANT & )

LOUNGE, and t/a ISLAND HOUSE ) CASE NO. 82-1420 GAMES PEOPLE PLAY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on November 2, 1982, in Jacksonville, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

The Petitioner: James N. Watson, Esquire

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

The Respondent: Willard Parsons, Esquire

2304 University Boulevard

Jacksonville, Florida 32217

This matter arose on Petitioner's Notices to Show Cause/Administrative Complaints which allege that Thomas J Dorsey, officer of the Respondent corporation unlawfully sold and delivered marijuana. Petitioner submitted proposed findings of fact which are incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. Respondent held valid alcoholic beverage licenses for Pirate Jim's Restaurant and Lounge and Island House Games People Play at all times relevant to these proceedings. Thomas Joseph Dorsey was a principal corporate officer during such relevant period.

   
   

2. Dorsey was arrested in the Miami area for trafficking in cannabis on or about September 2, 1981. The testimony of a Florida Department of Law Enforcement special agent established that he attempted to arrange the purchase of a large quantity of marijuana from Dorsey pursuant to their agreement.

   
   

3. The evidence did not establish that the substance viewed by the special agent was, in fact, marijuana. Further, there was no evidence that any sale or

   delivery took place or that any controlled substances were seized as a result of the proposed transaction.

   
   

   CONCLUSIONS OF LAW

   
   

4. Respondent is charged with violating Sections 893.13 (2)(a) 1 and 561.29(1)(h), Florida Statutes (F.S.). The former provision makes it unlawful to distribute or dispense a controlled substance. 1/ The latter provision makes violation of state law a basis for disciplinary action against a beverage license.

   
   

5. Here, there was not substantial competent evidence to establish that Respondent violated any law. Therefore, there is no proper basis for disciplinary action under Section 561.29, F.S.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order dismissing the charges against Respondent.

DONE and ENTERED this 7th day of December, 1982, in Tallahassee, 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 7th day of December, 1982.

ENDNOTE

1/ G&B of Jacksonville, Inc. v. State, 371 So.2d 138; 371 So.2d 139; 381 So.2d

1074 (Fla. 1st DCA 1979); Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962).

COPIES FURNISHED:

James N. Watson, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Willard Parsons, Esquire 2304 University Boulevard

Jacksonville, Florida 32217

Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ALCOHOLIC BEVERAGES AND TOBACCO

DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,

Petitioner,

vs.

PIRATE JIM'S BAR AND GRILL, INC., CASE NO. 82-1419 t/a PIRATE JIM'S RESTAURANT AND

LOUNGE, and t/a ISLAND HOUSE GAMES CASE NO. 82-1420 PEOPLE PLAY

Respondent.

/

FINAL ORDER

This matter came on for hearing on November 2, 1982, in Jacksonville, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: James N. Watson, Esquire

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

For Respondent: Willard Parsons, Esquire

2304 University Boulevard

Jacksonville, Florida 32217

This matter arose on Petitioner's Notices to Show Cause/Administrative Complaints which allege that Thomas J. Dorsey, officer of the Respondent corporation unlawfully sold and delivered marijuana. Petitioner submitted

proposed findings of fact which are incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. Based upon a review of the complete record in the instant matter it is determined that those Findings of Fact contained in the Recommended Order wherein the Hearing Officer found that the evidence did not establish that the substance viewed by the special agent was, in fact, marijuana and that there was no evidence that any sale or delivery took place or that any controlled substances were seized as the result of the proposed transaction are hereby rejected. This rejection is based upon a reading of the transcript of the testimony given at the formal hearing which establishes that the Findings of Fact in the Recommended Order were not based upon competent substantial evidence. The rejection of these Findings of Fact is done pursuant to Section 120.57(9) , Florida Statutes, and the substituted Findings of Fact will be referenced as to the page number where they are found in the transcript.

   
   

2. Respondent held valid alcoholic beverage licenses for Pirate Jim's Restaurant & Lounge and Island House Games People Play at all times relevant to these proceedings. Thomas Joseph Dorsey was a principle corporate officer during such relevant periods.

   
   

3. On or about September 2, 1981, Thomas J. Dorsey was arrested by Special Agent Stephen T. Alford, Florida Department of Law Enforcement, on a charge of trafficking in cannabis. Mr. Dorsey was involved with the trafficking of approximately 188 pounds of marijuana which was delivered to Special Agent Alford by Thomas J. Dorsey (T-12, 13).

   
   

4. The above transaction was the result of discussions held in Coral Gables, Florida, at the Holiday Inn Motel between Mr. Dorsey and agents of the Department of Florida Law Enforcement. While at the Holiday Inn in Coral Gables, Agent Alford showed Mr. Dorsey approximately $40,000 in cash which was to serve as payment for the delivery of Mr. Dorsey of the above referenced marijuana. Pursuant to the arrangements Mr. Dorsey took Agent Alford's rented automobile while leaving Agent Alford at a Holiday Inn in Homestead, Florida, and later returned with the marijuana loaded in the trunk of Agent Alford's automobile (T-14, 15).

   
   

5. Upon Mr. Dorsey's return of the automobile to Agent Alford inspection was made of the trunk. At this time Agent Alford discovered 5 bales of marijuana covered with visqueen plastic in the trunk of his automobile. At this time Mr. Dorsey explained to Agent Alford that he had had to repackage the bales because they would not fit into the trunk and that he had used a deodorizer so that the odor would be kept down on the agent's return trip (T-15).

   
   

6. Agent Alford testified that he had been involved in the investigation of narcotic activities on and off for seven years. During this time he had received special training through the Florida Department of Law Enforcement, the Department of Justice and drug enforcement administration through Alcohol, Tobacco and Firearms, Federal Government, and with the Dade County Public Safety Department (T-11). Part of his narcotics training specifically dealt with the identification of marijuana. Agent Alford testified that upon delivery of the marijuana by Mr. Dorsey he had an opportunity to open one of the bales contained in the trunk of his car and inspect the contents. Based upon his previous experience and training it was his opinion that the substances contained in the

   bales was, in fact, marijuana. Agent Alford based his opinion upon the appearance of the substance, its texture, and its odor (T-16).

   
   

   CONCLUSIONS OF LAW

   
   

7. Respondent is charged with violating Sections 893.13 (2)(a)(1) and 561.29(1)(b), Florida Statutes. The former provision makes it unlawful to distribute or dispense a controlled substance and pursuant to Section 893.03(1)(c)3, Florida Statutes, cannabis (marijuana) is a controlled substance. Section 561.29 (1)(b) makes is a revocable offense where a licensee violates any law of the United States or the State of Florida.

   
   

8. Based upon the testimony of Special Agent Alford there is substantial confident evidence to establish that Respondent violated provisions of Section 893.13(2)(a)1, Florida Statutes, and thereby is subject to the disciplinary action provided for within Section 561.29, Florida Statutes.

ORDER

From the Foregoing, it is ORDERED:

That Respondent's alcoholic beverage licenses number 65-61, 7-COP and 65- 38, 7-COP are hereby REVOKED.

DONE AND ORDERED this 25th day of January, 1983, in Tallahassee, Florida.

GARY R. RUTLEDGE, SECRETARY

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

COPIES FURNISHED:

R. T. Carpenter, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Willard Parsons, Esquire 2304 University Boulevard

Jacksonville, Florida 32217

Captain R. R. Caplano Post Office Box 5787

Jacksonville, Florida 32207

Docket for Case No: 82-001419

Orders for Case No: 82-001419