vs. ) CASE NO. 82-2239
) MARY L. ALEXANDER t/a WHISPER'S ) CAFE, )
Respondent. )
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 September 21, 1982, in Holly Bill, Florida.
For Petitioner: John A. Boggs, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Joseph D. Krol, Esquire
Whether respondent's alcoholic beverage license should be disciplined on charges that, on four occasions, she or her employees procured the sale or delivery of cannabis on the licensed premises, and that, as a result, she maintained a place which was resorted to by persons possessing or selling controlled substances.
By notice to show cause served on July 8, 1982, petitioner ("DABT") sought to discipline respondent Mary L. Alexander's alcoholic beverage license or impose a civil penalty for alleged violations of the Beverage Law, Ch. 561, Florida Statutes (1981). Specifically, DABT alleged that on April 30, 1982 and May 7, 1982, her employee, Ronney Locke--while on the licensed premises--sold, delivered, or procured the sale and delivery of cannabis to Beverage Officer Maria Scruggs; that on May 12, 1982, another employee, Fred Austin--while on the licensed premises--sold, delivered, or procured the sale and delivery of cannabis to Beverage Officer Alphonso Junious; that on May 14, 1982, respondent, herself--while on the premises--unlawfully sold, delivered, or procured the sale and delivery of cannabis to Officer Junious; and that, between April 30, 1982 and continuing through May 14, 1982, respondent unlawfully kept and maintained
the licensed premises as a place which was resorted to by persons keeping or selling controlled substances.
Respondent disputed these charges and requested a formal hearing. DABT referred this case to the Division of Administrative Hearings for assignment of a hearing officer on August 13, 1982.
At hearing, DABT called Maria Scruggs, Alphonso Junious, Fred Dunbar, Daniel J. Radcliffe, and Guy E. Chase as its witnesses, and offered Petitioner's Exhibits No. 1-3 1/ into evidence. Respondent Mary L. Alexander testified on her own behalf and called Mildred Neely and Gloria Butler as witnesses.
The parties filed proposed findings of fact, and conclusions of law by October 7, 1982. No transcript of the hearing has been filed.
Respondent Mary L. Alexander holds beverage license No. 28-0041, Series 2-COP. Under this license she sells beer and wine at Whisper's Cafe, a business which she has owned and operated for approximately two years in Bunnell, Florida. (Testimony of respondent)
Respondent employs a cook and a part-time bartender, who also serves as a disc jockey. The cook works primarily in the kitchen. At around 8:30 P.M., the bartender begins operating the juke box and remains in the dance area of the licensed premises, an area separated by a wall from the rest of the premises. Respondent (or a substitute bartender), works primarily in the bar and pool table area, which is located between the dining and dance areas of the premises. (Testimony of respondent)
The evidence establishes, without contradiction, that two of respondent's bartenders committed three separate drug violations on the premises during April and May, 1982. Two violations involved bartender Ronney Locke, one involved bartender Fred Austin.
I.
Two Drug Violations by Bartender Locke
On April 30, 1982, Maria Scruggs, a DABT Beverage Officer, entered Whisper's Cafe in an undercover capacity. Approximately twenty customers were on the premises--four or five were standing at the bar. Officer Scruggs ordered a drink at the bar. Several minutes later, Thomas Alexander, respondent's son, approached her and a conversation ensued. She asked him if he had any marijuana she could buy. He replied that he did not, and then referred the question to bartender Ronney Locke. Mr. Locke, offering to check around the bar, approached Clarence Lorick, a customer, who then delivered a small quantity of marijuana to Mr. Alexander for $5.00. Mr. Alexander, seated at the bar, rolled a marijuana (cannabis) cigarette in his lap and gave it to Officer Scruggs, who then left the premises. The cigarette was rolled in an open manner and in plain view of others on the premises. Respondent was not on the premises during this transaction and was unaware of its occurrence. (Testimony of Scruggs, respondent, P-1)
On May 7, 1982, Officer Scruggs reentered the licensed premises in an undercover capacity. She began to talk, separately, with respondent and bartender Locke. She asked Mr. Locke if any cocaine or marijuana was available. He replied that he would check with the other customers for a $5.00 bag of marijuana. He approached Ginnie Lee Caskins a customer, Who then approached Officer Scruggs and handed her a manilla envelope containing marijuana (cannabis). Officer Scruggs said nothing and handed her $5.00. This exchange of money and marijuana took place under the bar and out of view of the other customers on the premises. Although respondent was on the premises, she was not close by and did not see the exchange or overhear the conversation. (Testimony of respondent, Scruggs, P-2)
II.
Drug Violation by Bartender Austin
On May 12, 1982, Alphonso Junious, another DABT Beverage Officer, entered the licensed premises in an undercover capacity. He asked bartender Fred Austin, an employee of respondent, if he knew where he could buy some marijuana. Mr. Austin walked to the door and summoned Clarence Lorick, who then entered the premises. After a brief conversation, Mr. Lorick handed a small quantity of marijuana (cannabis) to Officer Junious, who, in turn, handed him
$5.00. This exchange took place in a secretive manner and occurred after respondent had left the premises. She was also unaware of this drug transaction. (Testimony of Junious, respondent, P-3)
III.
Drug Violation by Respondent
DABT also contends that on May 14, 1982, respondent unlawfully aided, counseled, or procured the sale or delivery of marijuana (cannabis) to Officer Junious. Respondent denies it. The evidence, although conflicting, substantiates DABT's contention.
On May 14, 1982, Officer Junious reentered the licensed premises in an undercover capacity. He purchased a beer from respondent, who was tending bar. While seated at the bar, he overheard respondent tell an unidentified female patron that she (respondent) had been to a musical concert and had to leave to get something to smoke. Officer Junious, construing this to mean marijuana, said to her, "I could use something to smoke too," or words to that effect. Respondent replied, "Boot got some." (Testimony of Junious)
Officer Junious knew who "Boot" (Henry Brown) was, having previously purchased marijuana from him in an undercover capacity. Officer Junious then left the premises, found "Boot" outside, and purchased a small quantity of marijuana (cannabis) from him for $5.00. (Testimony of Junious)
These findings are based on the testimony of Officer Junious. Respondent denies that she said "Boot got some" or that she had any conversation with Officer Junious on May 14, 1982. She also denies that she said she could use something to smoke, and states that she does not smoke either tobacco or marijuana. Taking into account her bias and interest in the outcome of this proceeding, the testimony of Officer Junious is more credible and is accepted as persuasive.
IV.
Respondent's Supervision of the Premises
Respondent, periodically, reminded her employees that no marijuana was allowed on the premises. She took no other action to ensure that drug violations would not occur on the premises. (Testimony of respondent
On May 27, 1982, arrest warrants were executed by DABT and the licensed premises was searched. No illicit drugs were found on the premises. (Testimony of Scruggs)
There is no evidence that marijuana has ever been smoked in the licensed premises. Neither does the evidence support a finding that respondent knew that marijuana had been, or was being, sold or delivered on the premises.
The four separate drug violations committed on the licensed premises, and the manner in which they were committed, however, support a conclusion that these violations of law were fostered, condoned, or negligently overlooked by respondent, and they occurred, at least in part, due to respondent's failure to diligently supervise her employees.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla. Stat. (1981).
DABT is authorized to revoke or suspend a beverage license when violations of state law are committed on the licensed premises by the licensee or its employees. 561.29(1)(a), Fla. Stat.(1981). Possession, sale, or delivery of marijuana is a crime, Sections 893.03(1)(c)and 893.13(1)(a), and it is unlawful to aid, abet, counsel, or otherwise procure the commission of a crime. 777.011 Fla. Stat. (1981). It is also unlawful to keep or maintain a place resorted to by persons for the purpose of keeping, selling, or delivering illicit drugs. 823.10, 893.13(2)(a) 5, Fla. Stat. (1981).
License revocation proceedings, such as this, are penal in nature.
The prosecuting agency must prove its charges by clear and convincing evidence-- by evidence as substantial as the consequences facing the licensee. See, Bowling v. Dept. of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Walker v.
State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Fla. Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966)
The evidence establishes that on April 30, 1982, bartender Locke aided and counseled Clarence Lorick in the selling or delivering of cannabis to Officer Scruggs in violation of Sections 893.13(1)(a) and 777.011; that on May 7, 1982, bartender Locke aided and counseled Ginnie Gaskins in the selling or delivering of cannabis to Officer Scruggs in violation of Sections 893.13(1)() and 777.011; that on May 12, 1982, bartender Austin aided and counseled Clarence Lorick in the selling or delivering of cannabis to Officer Junious in violation of Sections 893.13(4)(a) and 777.011; and that on May 14, 1982, respondent aided and counseled Henry Brown in the selling or delivering of cannabis to Officer Junious in violation of Sections 893.13(1)(a) and 777.011. The evidence also establishes that between April 30, 1982 and May 14, 1982, respondent kept and maintained a place resorted to by persons for the purpose of keeping, selling, or delivering illicit drugs in violation of Sections 823.10, 893.13(2)(a) 5.
But, in order to discipline a licensee under Section 561.29(1), the licensee must be shown to be culpably responsible. A standard of simple negligence is applied. Lash v. Fla. Dept. of Business Regulation, 411 So.2d 276, 278 (Fla. 3d DCA 1982):
Where, however, the laws are repeatedly and flagrantly violated by the employees,
an inference arises leading to the conclusion that such violations are either
fostered, condoned or negligently overlooked by the licensee, notwithstanding
his absence from the premises when the violations occur. Pauline v. Lee, 147 So.2d 359, 364 (Fla. 2d DCA 1962), cert.
denied, 156 So.2d 389 (Fla. 1963). Consequently, if the evidence supports the conclusion that the licensee failed to exercise ordinary care in the maintenance of the licensed premises or the supervision
of his employees, he can be found negligent and his license revoked. See Bach v. Florida State Board of Dentistry, 378 So.2d 34, 36 (Fla. 1st DCA 1979).
Where the violations are, as here, committed in a persistent and recurring manner consisting of more than one isolated incident, the courts have not hesitated to find that such violations were either fostered, condoned, or negligently overlooked by the licensee, even though he may have been absent at the time of the commission of such. Golden Dolphin No. 2, Inc. v. State of Florida, Division of Alcoholic Beverages & Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981) (lewd and lascivious dancing by female employees on several occasions) ; G & B of Jacksonville v. State of Florida, Dept. of Business Regulation, 371 So.2d 139 (Fla.
1st DCA 1979)(employees engaged in open and lewd acts with several patrons on two different days); Pauline v. Lee, supra, (female employees of licensee offered to commit prostitution with agents at various times over a three day period). In the
present case, the recurring sales were made possible by appellant's failure to supervise the premises and his employees in a reasonably diligent manner, properly leading to the license revocation.
In this case, the frequency of the violations, the persistent and practiced manner in which they occurred, respondent's sporadic supervision of the premises and her employees, and her own willingness to assist a customer who was seeking to purchase marijuana, support a conclusion that she fostered, condoned, or negligently overlooked the violations on her premises, thereby violating Section 561.29(1), Florida Statutes (1981).
DABT has not presented evidence as to the appropriate penalty which should be imposed. In deciding whether to suspend or revoke, it should be kept in mind that revocation is an extreme and drastic penalty, one to be applied only in the most flagrant cases. Taylor v. State Beverage Dept., 194 So.2d 321,
329 (Fla. 2d DCA 1967). Under the facts of this case, a 90-day suspension would be appropriate.
The parties' proposed findings of fact are adopted to the extent they are incorporated in this recommended order. Otherwise, they are rejected as unsupported by the evidence or unnecessary to resolution of the issues presented.
DABT filed a motion to strike a document submitted by respondent subsequent to hearing. Respondent was not granted leave to file a posthearing exhibit. The motion is, therefore, granted.
90 days.
DONE and ORDERED this 10th day of December,1982, in Tallahassee, Florida.
R. L. CALEEN, JR. Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1982.
1/ Petitioner's exhibits will be referred to as "P-1," "P-2," and "P-3".
John A. Boggs, Esquire Department of Business
Joseph D. Krol, Esquire Post Office Drawer E
