DEPARTMENT OF BUSINESS REGULATION ) DIVISION OF ALCOHOLIC BEVERAGES ) ANT TOBACCO, )
vs. ) CASE NO. 82-3190
) JOHNNIE L. and ROBERT J. MIMS, ) d/b/a LIBRA LOUNGE, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on February 15, 1983, in Pensacola, Florida. Counsel for the Petitioner requested time to submit proposed findings of fact and conclusions of law, and
10 days was allowed. The submission by counsel for the Petitioner was timely filed, and has been adopted. Nothing has been received from the Respondent.
For Respondent: Johnnie L. Mims, in pro per
This case was set for final hearing on December 15, 1982, but it was continued when the Respondent, Johnnie L. Mims, requested time to employ counsel. By amended notice issued on January 20, 1983, this matter was again set for final hearing as indicated above. At the reappointed time and place scheduled for final hearing, the Respondent asserted that he was unable to employ counsel, and the hearing commenced and proceeded to a conclusion.
Johnnie L. and Robert J. Mims are licensees of record holding license no. 27-78, Series 2-COP. They operate the premises known as the Libra Lounge located at 2409 North Palafox Street, Pensacola, Escambia County, Florida. The licensees had been disciplined in 1980 by the Division by the imposition of a civil penalty for a drug related offense at the licensed premises.
The Division was requested by local law enforcement officials to assist in the investigation of the licensed premises because of suspected drug trafficking activities. The Division thereupon commenced an undercover
investigation of the licensed premises, principally assigning Beverage Officer Paul Blackmon to conduct the investigation.
On July 9, 1982, Officer Blackmon approached the Libra Lounge from the parking lot when, prior to reaching the door of the licensed premises, two black males, Donald Black and Leo Weatherspoon, approached and offered to sell him drugs. Officer Blackmon purchased a bag of suspected marijuana from each individual for $20 and $10 respectively. The suspected marijuana was properly bagged, sealed, and submitted to the Crime Laboratory for analysis. This analysis indicated the presence of cannabis in the material purchased. Johnnie Mims testified that he was aware that Donald Black was a drug dealer.
On July 16, 1982, Officer Blackmon entered the Libra Lounge and took a seat at the bar. He observed Donald Black also at the bar. Officer Blackmon conversed with Black about the availability of drugs, and Black took several clear baggies of marijuana from his pocket in a manner easily observable by other patrons and the bartender. Officer Blackmon purchased a baggie for $10 which, after being properly bagged, sealed, and submitted to the Crime Laboratory, was determined to contain cannabis.
On July 23, 1982, Officer Blackmon entered the Libra Lounge and immediately observed Donald Black and an unknown black female smoking marijuana inside the licensed premises. Officer Blackmon and Black engaged in discussions which culminated in Black offering to sell and, in fact, selling in plain view of anybody within the bar, a clear plastic baggie of marijuana. The substance purchased tested positive for the presence of cannabis. While Officer Blackmon was on the licensed premises at this time, he also observed another patron known as Duckworth openly smoke a marijuana cigarette inside the licensed premises which was passed around to several patrons. Duckworth also offered to sell Officer Blackmon marijuana.
On August 20, 1982, Officer Blackmon was again inside the Libra Lounge. The on-duty bartender, Johnnie Rome Mims, advised Officer Blackmon that he could obtain narcotics from an individual known as "Tennessee", later identified as Anthony Johnson. Johnnie L. Mims also identified Anthony Johnson as a person he knew to be dealing in drugs. Officer Blackmon conversed with Tennessee, and was successful in purchasing, on the licensed premises a clear plastic baggie of marijuana in an open transaction. The substance purchased tested positive for the presence of cannabis.
On September 16, 1982, Officer Blackmon again entered the Libra Lounge. while inside the licensed premises, he was approached by Donald Black who inquired whether Officer Blackmon was interested in purchasing any drugs. After receiving an affirmative response, Black shortly produced a clear plastic baggie of marijuana which he sold to Officer Blackmon in an open transaction witnessed by other patrons and the bartender, Johnnie R. Mims. The substance purchased tested positive for the presence of cannabis.
On October 8, 1982, Officer Blackmon again entered the Libra Lounge. He inquired of the on-duty bartender, Johnnie R. Mims, whether Anthony Johnson was around. Johnnie R. Mims responded in the negative, but stated that if Blackmon was looking for some drugs that "Bull", the street name for Johnnie L. Nims had some. Johnnie R. Mims called Johnnie L. Mims over to the bar where they discussed with Officer Blackmon the purchase of "speed", the street term for amphetamines, at $1 per hit. Officer Blackmon purchased five directly from the licensee, Johnnie L. Mims, in a transaction across the bar. The substance
was represented to Officer Blackmon to be speed or amphetamines. The laboratory
report, however, indicated caffeine and not the presence of any illegal narcotic in the substance purchased.
On November 5, 1982, Officer Blackmon approached the Libra Lounge from the parking lot and met Bull or Johnnie L. Mims. Officer Blackmon inquired about purchasing more amphetamines, and the licensee responded that he had none but was shortly expecting a shipment from Miami, and would hold some for him. Thereafter, Officer Blackmon entered the lounge and inquired of the on-duty bartender, David Hudson, whether any drugs could be purchased. Hudson took him to a combination storage room, living quarters, and bar, an area which was the living quarters of the licensee, Johnnie L. Mims. There, sitting in plain view, was a substantial quantity of marijuana in various size bags. Hudson allowed Officer Blackmon to pick out a bag in return for $20. The substance purchased tested positive for the presence of cannabis.
On November 12, 1982, Officer Blackmon again entered the Libra Lounge and engaged in conversation with the on-duty bartender, David Hudson. Officer Blackmon again inquired as to the purchase of narcotics, and Hudson produced from a counter under the bar a brown cloth satchel containing a substantial quantity of marijuana in various size clear plastic baggies. Again, Hudson let Officer Blackmon pick out the particular bag which he wanted in a clearly open transaction which anyone in the bar could witness. The quantity purchased by Officer Blackmon on this date tested positive for the presence of cannabis.
On November 19, 1982, Officer Blackmon entered the Libra Lounge with two marked $10 bills and a marked $5 bill in his possession. Officer Blackmon again approached the on-duty bartender, David Hudson, and asked about the purchase of narcotics. Again, Hudson produced the brown cloth satchel from under the bar. He also asked Officer Blackmon if he was interested in purchasing a quarter pound of marijuana. Officer Blackmon declined, but instead picked out a "10-cent bag" for which he paid Hudson $10 utilizing a marked bill. Again, this transaction occurred in plain view of anyone at the bar, and the substance purchased tested positive for the presence of cannabis.
While on the licensed premises on November 19, 1982, Officer Blackmon observed two white females enter the bar and ask the bartender, Hudson, where Bull (Johnnie L. Mims) was. Officer Blackmon, who was in a position to overhear their conversation, heard Hudson state that he would have to take care of them. Thereupon, they commenced negotiations which resulted in the sale of a quarter pound bag of marijuana that Hudson had previously offered to Officer Blackmon.
Also, on November 19, 1982, a beer truck was making a delivery of a quantity of beer to the licensee, Johnnie L. Mims. Mims had counted out $204 which he had left sitting on the cooler behind the main bar of the licensed premises. At this time, local police officers and beverage officers entered the licensed premises to serve an Emergency Order of Suspension on Mims, and to execute a search warrant on the licensed premises. The $204 that Mims was about to pay the beer truck driver contained the marked $10 bill that Officer Blackmon had just utilized to purchase the marijuana.
In the search of the licensed premises, the officers found the brown cloth satchel containing numerous bags of marijuana, all of which tested positive for the presence of cannabis. The police also found marijuana on David Hudson and on Anthony Johnson, and a bottle of moonshine whiskey behind the bar.. They also found several items of stolen property, including a white tuxedo stolen from Mitchell Formal Wear and valued in excess of $100, a quantity of jeans reported stolen from the National Shirt Shop and valued at $147, a Bear
Cat scanner reported stolen from a residence and valued at $500, a Tappan Microwave Oven reported stolen from Corpus Christi, Texas, and valued in excess of $100, a Honeywell Ultrasonic Burglar Alarm reported stolen and valued in excess of $100, and a dishwasher still in its carton and valued in excess of
$100.
Johnnie L. Mims testified that he had a no-drug policy, as set forth in a number of signs posted throughout the licensed premises. However, Lt. Baxley, the head of the Pensacola Beverage Office, who has been on the licensed premises, never observed any signs concerning such a policy. Mims further testified that he knew both Donald Black and Anthony Johnson were dealing in drugs. Both Donald Black and Anthony Johnson were repeatedly on the licensed premises. Anthony Johnson was arrested on November 19, 1982, for possession of marijuana at a time when Johnnie L. Mims was on the licensed premises. The remaining testimony of Johnnie L. Mims was clearly self-serving. He asserted he was so involved with his community activities and taking care of his sick mother that he had no opportunity to supervise the licensed premises Such testimony ignores the fact that he sold to Officer Blackmon what was represented to be speed or amphetamines, and discussed a further shipment of drugs that he was to receive. This testimony was not denied or refused by Mims.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes.
Count 1 of the Notice to Show Cause, as amended, alleges that the licensees through their agent, servant, or employee, David Hudson, sold marijuana to undercover beverage officers in violation of Florida Statute 893.13(1)(a) and Florida Statute 561.29(1)(a) on both November 5 and November 12, 1982. The testimony discloses that Officer Blackmon purchased marijuana from the on-duty bartender, David Hudson, on both occasions. This marijuana tested positive for the presence of cannabis. Cannabis is a controlled substance under Florida Statute 893.03(1)(c) and is therefore a violation of Florida Statute 893.13(1)(a)2.
Count 2 of the Notice to Show Cause charges that Johnnie L. Mims violated Florida Statute 817.563 and Florida Statute 561.29(1)(a) by offering to sell a controlled substance, and substituting another substance in lieu of such controlled substance. Florida Statutes 817.563 provides:
It is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s.893.03 and then sell to such person any other substance in lieu of such controlled substance. . . .
Amphetamines are a controlled substance pursuant to Florida Statute 893.03(2)(c). Thus, the offer made by Mims to sell speed or amphetamines to Officer Blackmon is a violation of this statute.
Count 3 of the Notice to Show Cause, as amended, charges that the licensees through their agent, Johnnie Rome Mims, conspired to sell controlled substances in violation of Chapter 893, Florida Statutes. One conspiracy
involved Johnnie Rome Mims on August 20, 1982, advising Officer Blackmon that "Tennessee" or Anthony Johnson was holding narcotics, and the same could be purchased from him. The other conspiracy involved the October 8, 1982, actions of Johnnie Rome Mims in seeking out Johnnie L. Mims as a person from whom narcotics could be purchased. Florida Statute 777.04(3) provides that it is unlawful for any person to agree, conspire, combine or confederate with another person to commit any offense. The facts disclose that Johnnie R. Mims knowingly assisted in effectuating a drug deal on August 20, 1982, which resulted in Officer Blackmon purchasing marijuana from Anthony Johnson, and in a similar deal on October 8, 1982, which resulted in Johnnie L. Mims selling a substance represented to be amphetamines in violation of Florida Statute 817.563.
Count 4 of the Notice to Show Cause alleges that the licensees maintained the Libra Lounge as a place resorted to by persons using controlled substances, and for the purpose of keeping or selling the same in violation of Chapter 893. The particular statute which the licensees are charged with violating is Florida Statute 893.13(2)(a)5., which provides that it is unlawful for any person:
To keep or maintain any store, shop, warehouse, dwelling, building. . .or other structure or place which is resorted to
by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.
The facts disclose that patrons were repeatedly utilizing marijuana inside the licensed premises, that repeated drug transactions took place inside the licensed premises, and that substantial quantities of drugs were kept on the licensed premises.
Count 5 of the Notice to Show Cause charges the licensees with maintaining a public nuisance at the licensed premises in violation of Florida Statutes 823.10. Such statute provides:
Any store, shop...or any place whatever, which is visited by persons for the purpose of unlawfully using any substance controlled under Chapter 893, or any drugs as described in Chapter 500, or which is used for the illegal keeping, selling, or delivering of the same, shall be deemed
a public nuisance. . . .
Public nuisances are made illegal pursuant to Florida Statutes 823.01. The evidence establishes that the licensed premises were utilized for keeping, selling, delivering and using controlled substances in violation of Chapter 893, Florida Statutes.
Count 7 of the Notice to Show Cause alleges that the licensee, Johnnie
L. Mims, trafficked or endeavored to traffic in property that he knew or should have known was stolen, in violation of Florida Statute 812.019. The testimony at the hearing disclosed that Mims was in possession of stolen property including the white tuxedo from Mitchell Formal Wear and the Bear Cat scanner.
Consequently, the facts establish that Mims possessed and trafficked in known stolen property.
Count 8 of the amended Notice to Show Cause charges that the licensee, Johnnie L. Mims, did obtain, use, or endeavor to obtain or use the property of another of a value greater than $100 in violation of Florida Statutes 812.014. It was established that Mims was in possession of a white tuxedo valued in excess of $100, jeans valued in excess of $147, a Bear Cat scanner valued at
$500 and a Tappan Microwave Oven, a dishwasher, and a Honeywell ultrasonic burglar alarm, all valued at $100 or more, and all of which items were stolen. Thus, Mims is in violation of Section 812.014, Florida Statutes.
No evidence was presented relative to Count 9 of the amended Notice to Show Cause.
Each of the violations of the above statutes constitute a violation of Florida Statutes 561.29(1)(a) which provides that an alcoholic beverage license may be revoked where the licensee or his agents, servants, or employees have violated any of the laws of this State. Also, the facts presented in the instant matter established that the licensee maintained a nuisance on the licensed premises. Florida Statutes 561.29(1)(c) provides that an alcoholic beverage license may be revoked where a nuisance is maintained on the licensed premises.
From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the license issued to Johnnie L. Mims and Robert J. Mims
d/b/a The Libra Lounge, be revoked.
THIS RECOMMENDED ORDER entered this 1st day of March, 1983.
WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1983.
Harold F.X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Johnnie L. Mims
Robert J. Mims
Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco
Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
