STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2728

) ALBERT P. SINGLETARY, t/a PETE'S ) PLACE, )

)

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:

For Petitioner: James N. Watson, Esquire

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

For Respondent: Carlton P. Maddox, Esquire

125 North Market Place Jacksonville, Florida 32202

This matter arose on Petitioner's Notice to Show Cause/Administrative Complaint charging Respondent with keeping a place where cannabis is sold in violation of Sections 823.10 and 561.29, Florida Statutes. Petitioner voluntarily dismissed Counts 1, 2, 6, 11 and 12 of the 12 count complaint.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent held alcoholic beverage license No. 26-1715. The licensed premises is located at 621 Davis Street, Jacksonville, Florida.

   
   

2. Petitioner's undercover investigator and confidential informant (CI) entered the licensed premises on March 9, 1982. Thereafter, the CI purchased cannabis from a patron of the licensed facility (Count 3)

   
   

3. Petitioner's investigator returned to the licensed premises with the CI on March 10, 1982, on which date both the CI and the investigator purchased cannabis from a patron. On this occasion the patron was identified as a seller by the bartender when she was asked who would sell cannabis. These transactions were carried out openly (Count 4)

4. Petitioner's investigator was again in the licensed premises on March 11, 1982, and observed the open sale and use of cannabis. He identified the substance sold and smoked by its appearance and smell (Count 5) . In those instances where Petitioner's investigator and CI made purchases, the substances were tested by the Florida Department of Law Enforcement Crime Lab, and confirmed to be cannabis. See Petitioner's Exhibit One.

   
   

5. On March 24, 1982, Petitioner's investigator visited the licensed premises where he again observed the open sale and use of cannabis by patrons as well as by an employee (barmaid) of Respondent. The investigator also purchased cannabis from patron during this visit (Count 8).

   
   

6. On March 25, 1982, Petitioner's investigator was on the licensed premises and observed the open sale and use of cannabis. He made purchases of this substance from a patron around 2:00 pm. and again about 11:30 p.m. (Count 9).

   
   

7. Petitioner's investigator was in the licensed premises on March 26, 1982. He again purchased cannabis from a patron (Count 10).

   
   

8. Respondent was not observed on the premises during any of the above periods. It was not, therefore, demonstrated that he had actual knowledge of the illegal activity.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 561.29, F.S., provides in part:

   
   

   1. The division 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:

      1. 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 of the United States, or violation of any municipal or country regulation in regard to the hours of sale,

         service, or consumption of alcoholic beverages, 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 or of the United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by chapter 92 or the

         rules of evidence.

         b) Violation by the licensee or, if a corporation, by any officers thereof, of any laws of this state or any state or territory of the United States.

         (c) Maintaining a nuisance on the licensed premises.

         
         

10. The above provisions empower Petitioner to revoke or suspend a beverage license for violation by the licensee or his employees of a federal or state law or applicable ordinance. Violation of the beverage statute or rules by the licensee may also result in fines of up to $1,000 per transaction.

    
    

11. These provisions have been construed to permit license suspension or revocation only where the license holder has knowledge of the illegal activity or has been negligent in supervising the licensed premises. 1/ Although a single, isolated incident outside the licensee's knowledge does not warrant a finding of negligence, violations of a persistent and recurring nature render the licensee culpably responsible. 2/

    
    

12. Cannabis is a controlled substance under Chapter 893, F.S., which makes possession or use of this substance illegal except in circumstances not applicable here. Section 823.10, F.S., declares as a public nuisance any place which is visited by persons for the purpose of unlawfully using such substance. The frequency and openness of cannabis use and sales on the licensed premises constitutes a public nuisance within the meaning of these provisions. The frequency of such misconduct also constitutes negligence on the part of the licensee in the supervision of his business. Respondent is therefore guilty as charged in Counts 3, 4, 5, 8, 9 and 10 of the Notice to Show Cause/Administrative Complaint.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order suspending Respondent's alcoholic beverage license for a period of 45 days.

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.

ENDNOTES

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). 2/ Id.

COPIES FURNISHED:

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

Carlton P. Maddox, Esquire

125 North Market Place Jacksonville, Florida 32202

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

Docket for Case No: 82-002728

Orders for Case No: 82-002728