STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2238

)

MICHAEL E. WEISS, t/a )

MIKE WEISS SANDWICH SHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on December 21, 1982, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: John A. Boggs, Esquire

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

For Respondent: Paul L. Martz, Esquire

Post Office Box 3928

St. Augustine, Florida 32085-3928 ISSUE

Whether respondent's alcoholic beverage license should be disciplined on charges that he violated provisions of the Beverage Law, Chapter 561, Florida Statutes.

BACKGROUND

By an eight-count notice to show cause, the Division of Alcoholic Beverages and Tobacco ("DABT") charged respondent Michael E. Weiss, d/b/a Mike Weiss Sandwich Shop, with violating provisions of the Beverage Law, Chapter 561, Florida Statutes (1981). As penalty, DABT seeks to suspend or revoke his alcoholic beverage license. Respondent disputed the charges and requested a Section 120.57(1) proceeding.

On August 13, 1982, DABT forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was initially held on September 21, 1982. Subsequently, respondent's motion for rehearing was granted, and hearing was reset for December 21, 1982.

The main issue in this case is whether respondent was negligent in supervising the licensed premises, known as the Mike Weiss Sandwich Shop; whether he failed to exercise reasonable care and diligence to ensure that Dorothy Wiseman, his sole employee, did not violate the law while working on the premises. 1/ DABT contends that respondent was negligent, he denies it.

By their post-hearing submittals, the parties agree that Ms. Wiseman, respondent's employee, engaged in the unlawful sale and delivery of marijuana (Cannabis) and possessed assorted drug paraphernalia on the dates charged.

At hearing, DABT called Louan Roe, Deborah A. Steger, A. G. Gibbs, Rufus Blanton, and C. E. Loyld as its witnesses; Petitioner's Exhibit Nos. 1-5 were received into evidence. Exhibit Nos. 6-9, on which ruling was reserved, are now received into evidence.

Respondent testified in his own behalf and called Joan Watson, Carmine Aquino, Betty Milley, John D. Rayborn, and N. J. Reid as witnesses; Respondent's Exhibit Nos. 1-9 were received into evidence. Respondent also submitted three late-filed exhibits which, in the absence of opposition by DABT, are received into evidence as Respondent's Exhibit No. 10 (composite).

The parties filed proposed findings of fact and conclusions of law by February 2, 1983. No transcript of hearing has been filed.

Based on the evidence presented the following facts are determined: FINDINGS OF FACT

I.

1. Respondent holds alcoholic beverage license number 28-21, Series 2-COP, authorizing him to sell beer and wine for consumption on the premises of a small sandwich shop which he owns and operates, known as the Mike Weiss Sandwich shop ("the sandwich shop"). The licensed premises (for purposes of the Beverage Law) is one room on the first floor of a two-story building located in a rural area adjacent to Highway A-1-A, four miles north of Flagler Beach, Florida. The second floor, which is not part of the licensed premises, was occupied as living quarters by Dorothy Wiseman, manager of the sandwich shop. The building is surrounded by a trailer park which extends to both sides of the highway: the eastern part accommodates a small number of transient camper-trailers, the western part, a large number of permanent mobile homes.

   
   

2. At all times material to the charges, respondent employed Dorothy Mae Wiseman to manage his sandwich shop. She was his only employee. A 53-year-old woman, with short gray hair, he first met her in July, 1981, when she lived in the trailer park (which he also owned) adjacent to the sandwich shop. At that time, he was operating the sandwich shop. She offered to manage and operate it for him. After personally checking with her two previous employers, and assuring himself that she would be a reliable employee, he hired her. At her suggestion, he then obtained an alcoholic beverage license (beer and wine) in August, 1981. By hiring her to operate the sandwich shop, respondent--who lived in St. Augustine--was able to devote more time to other business interests. He no longer needed to open the sandwich shop in the morning, remain there throughout the day, and finally close at 6:00 P.M.

3. Nevertheless, respondent frequently visited the sandwich shop and trailer park to check on their operations. He was, however, seldom there after 3:00 P.M. since he had to drive 30 miles to reach his home in St. Augustine.

   
   

4. To help him supervise the trailer park and sandwich shop, respondent hired N. J. Reid, a retired U.S. Army sergeant-major, who had lived in the trailer park for four years. Mr. Reid lived 800-feet from the sandwich shop, would watch people come and go, and would visit the shop at least twice a day. He neither suspected, nor had any reason to suspect, that any illicit drug transactions were occurring in the sandwich shop or that Ms. Wiseman was involved in illicit drug activities. He was, admittedly, unfamiliar with the appearance or odor of marijuana and its various street "names." Most of the sandwich shop customers were retirees, elderly people who lived in the trailer park or were visiting the campgrounds. (Respondent had removed game machines which had previously been in the sandwich shop and made no effort to attract younger customers.) Typically, elder customers would gather at the sandwich shop each day, and engage in social conversation. Their favorite topics were fear of war, social security cuts, and the infirmities of old age.

   
   

   II.

   
   

5. At 4:15 P.M. on September 4, 1981, Beverage Officer Louan Roe entered respondent's sandwich shop in an undercover capacity. She saw a woman, later identified as Dorothy Wiseman, and engaged her in conversation. No one else was present. During the conversation, Ms. Wiseman said she had managed the sandwich shop since July, 1981.

   
   

6. At 5:00 P.M. on September 11, 1981, Officer Roe returned to the sandwich shop. On this occasion, Ms. Wiseman and one other person, a male customer identified as "Jay," were present. Officer Roe heard them discussing how senseless the marijuana laws were and heard Ms. Wiseman say that she would like to see marijuana legalized, that if it was, she would be the first to open a store selling it.

   
   

7. After Jay left the premises, Officer Roe asked Ms. Wiseman if she (Wiseman) knew where she (Officer Roe) could get some marijuana. Ms. Wiseman replied that she had some "home-grown" marijuana. Officer Roe then agreed to purchase a bag of marijuana from Ms. Wiseman for $25. Ms. Wiseman left the shop, returned a short time later, and--after going behind the counter, out of Officer Roe's view--returned with a brown paper bag. She handed the bag to Officer Roe who, in turn, paid her $25, and left the premises. Later chemical analysis revealed the bag contained 21.1 grams of marijuana.

   
   

8. At 4:40 P.M. on September 18, 1981, Officer Roe again entered the sandwich shop. Approximately 30 minutes later, she asked Ms. Wiseman if she (Wiseman) had anything to spare, meaning marijuana. (No one else was privy to this conversation; "Jay," the only patron in the shop, was in the men's bathroom) . Ms. Wiseman replied that she had some to spare and then left the sandwich shop. A short time later, she returned and went behind the sandwich shop counter where the paper bags were kept. After she was heard rustling some paper behind the counter, she returned to Officer Rae and handed her a paper bag. After Officer Roe paid her $30, Ms. Wiseman rang $.90 on the cash register, placed some money in her (Wiseman's) pocket, and handed Officer Roe

   $4.10 in change. Officer Roe then left the premises. Later chemical analysis of the contents of the bag indicated 24.9 grams of marijuana.

9. At 5:00 P.M. on September 23, 1981, Officer Roe returned to the sandwich shop, accompanied this time by Officer Robertson of the Titusville Police Department, also working in an undercover capacity. After waiting until 5:50 P.M., when all other customers (except for "Jay") had left the shop, Officer Roe asked Ms. Wiseman if she (Wiseman) had anything, meaning marijuana. Ms. Wiseman responded affirmatively. (Although "Jay" was present, this conversation did not take place in front of him.) Officer Roe then followed Ms. Wiseman out of the shop and upstairs to her second-floor apartment. While there, Ms. Wiseman filled two small plastic bags with a green, leafy substance taken from a large grocery bag. Small amounts of the substance were also strewn over the kitchen table. She handed the two plastic bags to Officer Roe who, upon returning to the shop, gave her $60. Ms. Wiseman handed her $10 in change from a money pouch containing cash register receipts. Later chemical analysis of the contents of the two plastic bags indicated 42 grams of marijuana.

   
   

10. At 4:00 P.M. on September 30, 1981, Officer Roe returned, again, to the sandwich shop. She remained in the shop until the 6:00 P.M. closing, then told Ms. Wiseman that she had $25 "to get rid of." Ms. Wiseman replied "I know what you want." They then went upstairs to Ms. Wiseman's apartment, where Ms. Wiseman handed Officer Roe a bag containing green, leafy material and stems.

    She (Wiseman) asked Office Roe to "check out" the substance, explaining that it was a sample which had been given to her to try and sell. She also told Officer Roe that she (Wiseman) was growing the green, leafy substance. Officer Roe paid her $25 and left the premises. Later chemical analysis of the contents of the bag indicated less than 20 grams of marijuana.

    
    

11. On October 7, 1981, Officer Roe returned to the sandwich shop and told Ms. Wiseman that she wanted to purchase some marijuana, but had to leave soon. Ms. Wiseman then took her upstairs to her apartment. After removing a bag of green, leafy material from her refrigerator-freezer, she placed it in a bag and gave it to Officer Roe, who, in turn, paid her $25 and left the premises. Subsequent chemical analysis of the contents of the bag indicated less than 20 grams of marijuana.

    
    

12. On that same day, October 7, 1981, Beverage Officers, assisted by local law enforcement officers, executed a search warrant issued by Circuit Court Judge Hammond. 2/ Pursuant to the warrant, the sandwich shop and Ms. Wiseman's private apartment were searched. No controlled substances were found in the shop. But inside the refrigerator-freezer in Ms. Wiseman's apartment, officers found a plastic bag containing a green leafy material. Ms. Wiseman, who had led the officers to the freezer, admitted that she had been smoking marijuana for 30 years. On the dining room table was found more green, leafy material, a flour-sifter, a pair of scissors, seeds, and an alligator clip (commonly referred to as a "roach clip") containing a partially burned "cigarette" made of the same substance. Later chemical analysis of the leafy substance found in the freezer and on the table indicated 36.8 grams of marijuana.

    
    

    III.

    
    

13. Respondent has a reputation as an honest, reputable, and law-abiding member of the community. This was his first experience in owning and operating a sandwich shop. There had been no previous incidents involving illicit drugs or marijuana at the sandwich shop or adjacent trailer part. He was surprised, and disturbed, that Ms. Wiseman had engaged in trafficking of marijuana. As soon as he learned of it (upon her arrest), he promptly fired her. When he

    hired a replacement, he took elaborate steps to ensure that his new employee would be law-abiding and trustworthy.

    
    

    IV.

    
    

14. The evidence is patently inadequate to support a finding that respondent was negligent in supervising the licensed premises or that he failed to exercise reasonable care and diligence to ensure that Ms. Wiseman acted as a law-abiding employee. Ms. Wiseman did not keep her marijuana in the sandwich shop (the licensed premises). Rather, she kept it in her second-floor private apartment, which has not been shown to have been owned or controlled by respondent. The marijuana transactions in the sandwich shop between Ms. Wiseman and Officer Roe were neither open and flagrant. Indeed, in three of the transactions, the marijuana was packaged and handed to Officer Roe in Ms. Wiseman's private apartment; in the other two transactions, Ms. Wiseman went behind the sandwich counter and secretively placed the marijuana (which she had retrieved from outside the sandwich shop) into a bag. The two deliveries which occurred in the sandwich shop were isolated instances, occurring just prior too closing when there were few people present.

    
    

15. Neither has DABT shown that respondent was negligent in hiring Ms. Wiseman. He personally talked to her two prior employers and received nothing but positive references. She was a resident of his trailer park and appeared to be a reliable and stable 53-year-old woman.

    
    

16. Respondent had no reason to suspect that drug trafficking had occurred or might be occurring at his sandwich shop. His shop served as a gathering place for elderly residents of the adjacent trailer park, a most unlikely--and unexpected--place for drug trafficking to occur.

    
    

17. Respondent affirmatively supervised the operation of the sandwich shop and Ms. Wiseman's performance. He frequently inspected the premises, although he did not remain late in the afternoon because of the 30-mile return trip to St. Augustine. To supplement his own supervision, he hired a retired sergeant- major to keep a close eye on the sandwich shop and environs.

    
    

18. In short, respondent has not been shown to have been culpably responsible for Ms. Wiseman's marijuana transactions on the licensed premises. DABT has not demonstrated, by conventional proof, how respondent acted other than as a reasonable man. By posthearing argument, it argues that respondent lacked diligence in supervising Ms. Wiseman (1) by not personally supervising her between 3:00 P.M. and 6:00 P.M. each working day, and (2) by hiring a retired sergeant-major to supervise her when he had no familiarity with marijuana. But it is unreasonable to expect that respondent would personally supervise his employee each hour of each working day. Neither has it been shown that respondent was negligent in not requiring the sergeant-major, as a condition of employment, to be familiar with marijuana. This is an example of 20-20 hindsight by an agency. 3/ It is tantamount to requiring a licensee to be the insurer of his employee's actions, a burden not authorized or imposed by the Beverage Law. 4/

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1981).

20. DABT may suspend or revoke a beverage license when (1) the licensee's employee violates state law while on the licensed premises and (2) the licensee is culpably responsible for the violation. Section 561.29(1)(a), Florida Statutes (1981); Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962); Lash, Inc.

    v. State, 411 So.2d 276 (Fla. 3rd DCA 1982). If the licensee's negligence, lack of diligence, or intentional wrongdoing, resulted in the employee's unlawful conduct, the licensee is "culpably responsible." Id.

    
    

21. Marijuana (cannabis) is a substance the possession of which is controlled, except under circumstances not present in this case. Section 893.03(1)(c)3, Fla. Stat. (1981). Possession of less than 20 grams is a misdemeanor, Section 893.13(1)(f); possession of more than 20 grams is a third degree felony, Section 893.13(1)(e). Sale or delivery, or possession with intent to sell or deliver, is a third degree felony, Section 893.13(1)(a)2.

    
    

22. License revocation proceedings, such as this, are penal in nature. The prosecuting agency is required to prove its charges by clear and convincing evidence--by evidence as substantial as the consequences facing the licensee. See, Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Walker v. State, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966).

    
    

23. The record convincingly establishes that on September 11, 18, and 23, 1981, Ms. Wiseman--while on the licensed premises-- possessed, sold, and delivered more than 20 grams of cannabis to Officer Roe in violations of Sections 893.13(1)(a)2, 893.13(1)(e) and 561.29(1)(a), Florida Statutes (1981), (Counts 1-3, notice to show cause). On October 7, 1981, Ms. Wiseman, while on the licensed premises, possessed, sold, and delivered less than 20 grams of cannabis to Officer Roe in violation of Sections 893.13(1)(a)2, 893.13(1)(f) and 561.29(1)(a), (Count 5).

    
    

24. But on September 30, 1981, when Ms. Wiseman possessed sold, and delivered less than 20 grams of cannabis to Officer Roe, (Count 4) the transaction occurred in Ms. Wiseman's private apartment, not on the licensed premises. This drug violation does not, therefore, fall within the purview of the Beverage Law. See, Section 561.29(1)(a), Florida Statutes (1981). Likewise, on October 7, 1981, Ms. Wiseman's unlawful possession of more than 20 grams of cannabis, scales, pipes, "roach-clips," and other drug paraphernalia, (Counts 6 and 7) occurred in Ms. Wiseman's private apartment, not the licensed premises. These violations, too, are not cognizable by Section 561.29(1)(a). It follows that counts 4, 6, and 7, must be dismissed.

    
    

25. Although Ms. Wiseman engaged in several unlawful drug transactions (in part or in whole) on the licensed premises, the evidence does not convincingly establish that these violations were the result of respondent's negligence or lack of diligence. (DABT concedes that he did not engage in intentional wrongdoing). Neither does the evidence show that he knowingly maintained a building which was used (by Ms. Wiseman) for the purpose of selling controlled substances. Thus, absent a showing that he was culpably responsible for her unlawful drug transactions on the premises, the remaining charges (Counts 1-3, 5 and 8) must also be dismissed.

    
    

26. Respondent challenges the validity of the search warrant because of the discrepancy in designation of the issuing judge. This contention is rejected because, absent evidence to the contrary, it cannot be assumed that the discrepancy is other than a simple clerical error. Search warrants are not scrutinized for technical niceties. Pezzella v. State, 390 So.2d 97 (Fla. 3rd

    DCA 1980). Moreover, the issue is moot since the contraband seized pursuant to the warrant was found in Ms. Wiseman's personal apartment, not the licensed premises.

    
    

27. To the extent the parties' proposed findings of fact are incorporated herein, they are adopted. Otherwise, they are rejected as unsupported by the evidence or unnecessary to resolution of the issues.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the notice to show cause, and all charges contained therein, be dismissed.

DONE and RECOMMENDED this 6th day of April, 1983, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 6th day of April, 1983.

ENDNOTES

1/ By their post-hearing proposed findings of fact, the parties agree that no evidence was presented that shows, or even suggests, that respondent knew of illicit drug transactions engaged in by Ms. Wiseman.

2/ Although the warrant was issued and signed by Judge Hammond, a Circuit Judge, the first page of the warrant indicated that the affiant (with affidavits) had appeared before the "undersigned Judge of the County Court in and for Flagler County, Florida." (Respondent's Exhibit 1)

3/ For instance, if Ms. Wiseman's marijuana transactions occurred at anytime during the day when respondent was absent from the premises, could not it similarly be argued that he failed to maintain sufficient business intelligence concerning his employee's actions." (See DABT Reply, p.2)

4/ See Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962).

COPIES FURNISHED:

John A. Boggs, Esquire Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Paul L. Martz, Esquire Post Office Box 3504

St. Augustine, Florida 32084

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

Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 82-002238

Orders for Case No: 82-002238