STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2474

) 82-3438

HENRY HARVEY, d/b/a HI )

NEIGHBORS STORE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in these consolidated cases on March 10, 1983, in Ocala, Florida.

APPEARANCES

For Petitioner: William A. Hatch, Esquire

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

For Respondent: Aaron A. Green, Esquire

410 S.E. 4th Avenue Gainesville, Florida 32602

ISSUE

Whether respondent's alcoholic beverage license should be disciplined for alleged multiple violations of the Beverage Law.

BACKGROUND

By separate notices to show cause, the Division of Alcoholic Beverages and Tobacco ("DABT") charged respondent Henry Harvey, d/b/a Hi Neighbor Store ("respondent') with multiple violations of the Beverage Law.

On September 3, 1982, and December 22, 1982, DABT forwarded these cases to the Division of Administrative Hearings for assignment of a hearing officer.

The charges were consolidated and hearing was set for November 5, 1982; then on DABT's motion, continued and reset for January 13, 1983; then on respondent's motion, continued and reset for March 10, 1983.

At hearing, DABT presented the testimony of Alphonso Junious, Thomas Deen, Margaret Tabor, Debra Steiger, Michael Imperial, Wayne Yonachick, and Robert Wilson. DABT Exhibit Nos. 1-11 were received into evidence. The respondent presented no testimony or exhibits.

The parties requested and were allowed 30 days to submit posthearing proposed findings of fact. Subsequently, DABT filed no proposed findings and the respondent did not file his proposed findings until May 16, 1983. DABT moved to strike the respondent's untimely proposed findings, which motion was denied, with leave granted DABT to file a responsive memorandum by Nay 29, 1983. No responsive memorandum was filed. Neither has a transcript of the hearing been filed.

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

1. At all times material to the charges, respondent held an alcoholic beverage license authorizing him to sell alcoholic beverages on his business premises known as the Hi Neighbor Store, located at 1951 West Broadway, Ocala, Florida ("the licensed premises").

   
   

2. On June 22, 1981, Beverage Officer Michael Imperial dispatched a confidential informant into the licensed premises to make a controlled purchase of narcotics. The informant entered the premises and purchased five Talwin pain tablets, a controlled substance, from Wayne McIntyre, the manager.

   
   

3. On July 10, 1981, Officer Imperial, assisted by other law enforcement officers, executed a search warrant on the licensed premises. Several coin envelopes containing marijuana were found in an unclaimed brown purse and marijuana was also found on three patrons. Respondent Harvey was not on the premises at the time.

   
   

4. At 5:00 P.M. on April 13, 1982, Beverage Officer Alphonso Junious entered the licensed premises in an undercover capacity to investigate suspected drug violations. He sat at the bar and ordered a beer. A black female, later identified as "Lorraine," was tending bar; a black male, later identified as Terry Simms, was racking pool balls. Mr. Simms was wearing an apron and collecting money from patrons who were playing cards on the premises. Officer Junious observed persons around the bar smoking marijuana. Respondent Harvey was not present. The conduct of Lorraine and Mr. Simms supports a conclusion that they were acting as employees, agents, or servants of respondent Harvey.

   
   

5. On April 21, 1982, Officer Junious reentered the premises, sat at the bar, and ordered a beer from Mr. Simms, who was tending bar. Officer Junious observed persons playing cards at nearby booths and exchanging money. Later he asked Mr. Simms if he had any "smoke," meaning marijuana. Mr. Simms replied that he had some "dime" bags, meaning bags which sold for $10.00. Officer, Junious, after explaining that he wanted only a "nickel" bag, purchased a $5.00 bag of marijuana from Mr. Simms. Both men then stepped outside the door where the exchange then took place. Some patrons were playing cards for money near the east wall of the premises. Other patrons were observed smoking marijuana in open view and making no apparent attempt to conceal their activities.

   Respondent Harvey was not on the premises at the time.

   
   

6. On April 25, 1982, Officer Junious reentered the premises. Mr. Simms was tending bar; respondent Harvey was near the pool tables. Officer Junious then approached Mr. Simms and purchased a $5.00 bag of marijuana while on the premises.

7. On May 2, 1982, Officer Junious reentered the premises at 5:30 P.M. He detected the odor of marijuana smoke in the room. At approximately 7:00 P.M., Mr. Simms and respondent Harvey entered the bar. Mr. Simms was smoking what appeared to be a marijuana cigarette; he raised it to the nose of respondent Harvey, who showed no reaction. The two men then walked away. At approximately 7:30 P.M. , Officer Junious asked Mr. Simms, who was then behind the bar but not tending it, to sell him a $5.00 bag of marijuana. Mr. Simms agreed and the exchange then took place on the premises. Respondent Harvey was not present at the time.

   
   

8. At 8:00 P.M. on May 15, 1982, Officer Junious reentered the premises and ordered a beer. Mr. Simms was tending bar; respondent Harvey was absent. Patrons were playing cards and pool for money. At 10:30 P.M. Officer Junious asked Mr. Simms if he could buy a $5.00 bag of marijuana. Mr. Simms agreed, took a bag of marijuana from his pocket and gave it to Officer Junious for

   $5.00.

   
   

9. At 10:00 P.M. on June 8, 1982, Officer Junious reentered the premises. Respondent Harvey was tending bar; Mr. Simms was near the pool tables. At 11:45 P.M., Officer Junious asked Mr. Simms if he could buy a $5.00 bag of marijuana. Mr. Simms then walked to the north end of the bar and offered, instead, to sell him a $10.00 bag. Officer Junious replied that he wished to buy only a $5.00 bag, after which Mr. Simms sold him a $5.00 bag by dividing a $10.00 bag at the bar. This transaction took place in open and plain view while respondent Harvey was tending bar.

   
   

10. At 8:00 P.M. on June 19, 1982, Officer Junious reentered the premises. He observed various patrons smoking marijuana. Respondent Harvey was not present.

    
    

11. At 9:00 P.M. on June 20, 1982, Officer Junious reentered the premises. Several patrons were smoking marijuana in plain view. Respondent Harvey was tending bar.

    
    

12. At 2:30 P.M. on June 22, 1982, Officer Junious reentered the premises. Dale Morris, a black male, was tending bar and playing cards (blackjack) for money with a patron. Later, respondent Harvey entered the premises and joined the $1.00 per hand card game.

    
    

13. At 3:00 P.M. on June 28, 1982, Officer Junious reentered the premises and observed pale Morris and respondent Harvey playing cards (blackjack) for

    $1.00 a hand. Officer Junious then joined them.

    
    

14. At 9:30 P.M. on July 6, 1982, Officer Junious reentered the premises. He saw Dale Morris, who was tending bar, lighting patrons' marijuana cigarettes. Several patrons were openly rolling and smoking marijuana cigarettes. (Rolling papers were kept behind the bar.) Later that evening, Mr. Morris sold Officer Junious a $5.00 bag of marijuana.

    
    

15. At 5:45 P.M. on July 9, 1982, Officer Junious, assisted by other law enforcement officers, executed a search warrant on the premises. Illicit drugs found during this search included five bags of marijuana (one was under the bar) and numerous "roaches" (remains) of marijuana cigarettes.

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Section 561.29(1)(a), Florida Statutes (1981) authorizes DABT to revoke or suspend an alcoholic beverage license when it is shown that the licensee, or his agent or employee, while on the licensed premises, violated any law of the state. Maintaining a nuisance on the licensed premises is also cause for discipline. Section 561.29(1)(c), Fla.Stat. (1981).

    
    

18. Section 893.13(2)(a)(5) makes it unlawful for any person to keep or maintain a place resorted to by persons using controlled substances or which is used for keeping or selling controlled substances in violation of Chapter 893. Both Talwin and marijuana are controlled substances within the meaning of Chapter 893.

    
    

19. Section 849.08 makes it unlawful to engage in any game at cards, or other game of chance, for money or other thing of value.

    
    

20. Section 823.10 declares that places where controlled substances are illegally kept, sold, or used, are deemed public nuisances.

    
    

21. DABT need not prove intentional misconduct by a licensee. Where unlawful acts are committed by a licensee's employees, the licensee may be disciplined if he was negligent or lacked due diligence in supervising the licensed premises. This standard is one of simple negligence. See, Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962); Lash, Inc. v. State Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982); G & B of Jacksonville, Inc. v. State Department of Business Regulation, 371 So.2d 139 (Fla. 1st DCA 1979).

    
    

22. 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. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966); Walker v. State,322 So.2d 612 (Fla. 2nd DCA 1975); Bowling v. Department of Insurance,394 So.2d 165, 172 (Fla. 1st DCA 1981)

    
    

23. Measured by these standards, it is concluded that the evidence convincingly establishes that respondent violated the Beverage Law as alleged in Counts (1) [as amended] and (2) as specified in the initial notice to show cause issued in Case No. 82-2474. With equal force, the evidence establishes that the respondent violated the Beverage Law as alleged in Counts (1), (2) , and (4)-

    (17) , as specified in the subsequent notice to show cause issued in Case No. 82-3438. Count (3) was not proven and must be dismissed. Count (18) was withdrawn at hearing. Respondent Harvey either knew, or--with the exercise of

    due diligence--should have known that controlled substances were being illegally kept, sold, or used on his premises, that his employees and patrons were repeatedly and persistently engaged in such unlawful activities.

    
    

24. Penalty. The evidence demonstrates that repeated and persistent drug violations occurred on respondent Harvey's premises, sometimes even in his presence. No extenuating or mitigating evidence has been presented. Revocation of his alcoholic beverage license is warranted.

25. The respondent submitted proposed findings of fact and conclusions of law. To the extent his proposed findings are incorporated in this order, they are adopted; otherwise they are rejected as unsupported by the evidence, or unnecessary to resolving the issues presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the respondent's alcoholic beverage license be revoked for multiple violations of the Beverage Law.

DONE and ENTERED this 22nd day of June, 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 22nd day of June, 1983.

COPIES FURNISHED:

William A. Hatch, Esquire Howard M. Rasmussen, Department of Business Regulation Director

725 South Bronough Street Division of Alcoholic Tallahassee, Florida 32301 Beverages and Tobacco

725 South Bronough Street

Aaron A. Green, Esquire Tallahassee, Florida 32301

410 S.E. 4th Avenue Gainesville, Florida 32602

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

Docket for Case No: 82-002474

Orders for Case No: 82-002474