STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-256

)

CHARLES D. ANDREWS, t/a )

ODOM'S BAR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on February 28, 1983, in Pensacola, Florida.

APPEARANCES

For Petitioner: William A. Hatch Esquire

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

For Respondent: Charles D. Andrews

Highway 29, Odom's Bar Century, Florida

ISSUES

This case arises out of a notice to show cause served upon the Respondent by the Division of Alcoholic Beverages and Tobacco alleging that Beverage License No. 27-92 should be suspended, revoked or otherwise disciplined for five separate counts involving drug sales on the licensed premises. As a basis for its proof, Petitioner relied upon a stipulation entered into with the Respondent and a Division of Alcoholic Beverages and Tobacco Case Report which was admitted without objection. Mr. Charles Andrews testified on behalf of himself as licensee. A copy of the notice to show cause was admitted as Joint Exhibit 1 and the Petitioner of foreign and had admitted without objection one exhibit, the case report of the Division of Alcoholic Beverages and Tobacco.

FINDINGS OF FACT

1. Charles D. Andrews, trading as Odom's Bar, is the licensee of Beverage License No. 27-92, License Series 4-COP. The licensed premises is located on Highway 29 in Century, Escambia County, Florida.

2. The Petitioner and Respondent, having stipulated to the truth and accuracy of those facts alleged in the notice to show cause, and based upon that stipulation, the undersigned Hearing Officer finds those facts set forth in A through F of this paragraph:

   
   

   1. On May 24, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate the laws of the State of Florida by delivering a controlled substance, to wit: cannabis to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews, contrary to Florida Statute 893.13 within Florida Statute 561.29.

      
      

   2. On June 14, 1982, Johnny Andrews, the employee of Charles D Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews.

      
      

   3. On June 17, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews.

      
      

   4. On July 11, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews.

      
      

   5. On August 6, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Actent P. A. Blackman while on the licensed premises of Charles D. Andrews.

      
      

3. A. The negotiations and discussions about the May 24, 1982, transaction occurred inside Odom's Bar and the delivery took place through the drive-in window located on the north side of the licensed premises.

   
   

   1. On June 14, 1982, Beverage Officer Blackman drove to the drive-in window and asked Johnny Andrews if he was holding any pot. Johnny Andrews stated he was holding a 35 cents bag. After a short discussion about possible purchase of a larger quantity, Officer Blackman purchased the bag of marijuana for $35.00. The plastic bag of marijuana was in a brown paper bag and was handed to Officer Blackman through the drive-in window.

      
      

   2. The delivery of the marijuana to Officer Blackman on June 17, 1982, also took place at the drive-in window. Johnny Andrews handed Blackman a brown paper bag containing a Miller and a plastic bag of marijuana.

      
      

   3. On July 11, 1982, Officer Blackman observed three patrons smoking a marijuana cigarette in Odom's Bar, and this activity was observed. by the barmaid on duty. No attempt was made to stop the activity. Officer Blackman was offered the marijuana cigarette and he pretended to smoke it. At this time, Johnny Andrews approached Officer Blackman and offered to 7 sell him some "acid" (LSD). Officer Blackman agreed and was instructed to drive around to the drive- in window. He did so and the delivery of the "acid" took place through the drive-in window.

      
      

   4. On August 5, 1982, Officer Blackman, after being in the licensed premises, drove up to the drive-in window where Johnny Andrews offered to sell

   him some "acid" (LSD) Officer Blackman agreed to purchase and agreed to return on August 6 to pick up the "acid". on august 6, 1982, Officer Blackman returned to the drive-in window where Andrews handed him a bag containing six hits of acid.

   
   

4. At the time of the conversations and purchases on June 14, August 5, and August 6, 1982, Johnny Andrews was on duty and working at Odom's Bar.

   
   

5. Mr. Charles Andrews has owned Odom's Bar for the past five years and worked for the two previous owners. He began working at Odom's Bar 20 years ago. The bar is managed by Respondent and his wife.

   
   

6. Johnny Andrews, referred to in the stipulation above, is the son of Mr. and Mrs. Charles D. Andrews, and during the time period of the incidents set forth in Paragraph 1, was working as an employee at the bar. This was the first summer he had worked at the bar. He was working while he was home from college, and has not been allowed to work at the bar since August, 1982, when he was arrested.

   
   

7. Generally, Johnny Andrews would relieve Mr. and Mrs. Andrews and they would leave the bar while he was working. The Respondent, Charles D. Andrews, had no knowledge of the drug transactions his son was involved in.

   
   

8. Prior to the incidents in question, Odom's Bar was operated by Mr. and Mrs. Andrews with the help of four women whom they employed. Mr. Andrews had previously given instructions to his employees that they were not to allow drugs of any type to be used or sold on the premises.

   
   

9. On the date of Johnny Andrews' arrest, agents for the Division of Alcoholic Beverages and Tobacco thoroughly searched the licensed premises and found no drugs.

   
   

10. The clientele of Odom's Bar is primarily middle- aged persons.

    
    

11. Prior to the incidents described in Paragraph 1 above, the licensee, Charles Andrews, had had no other violations of the law or drug related problems at the licensed premises.

    
    

12. Once Mr. and Mrs. Andrews were notified of the charges and arrest warrant for their son, they cooperated with the police and also aided them in completing their arrest of Johnny Andrews.

    
    

13. Although the Respondent testified that he had cautioned his employees against drugs on the premises, there was no evidence that he took any steps to ensure that the premises were being properly supervised and legally operated in his absence. There was no arrangement or plan whereby the licensee monitored what was occurring at the licensed premises in his absence.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

    
    

15. Florida Statute 561.29 empowers the Division of Alcoholic Beverages and Tobacco to impose a civil penalty or suspend or revoke the license of the licensee found to he in violation of the various sections of 561.29.

16. Florida Statute 561.29(1)(a) provides that a beverage license may be revoked or suspended for a violation by the licensee 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.

    
    

17. Cannabis and Lysergic Acid Diethylamide (LSD), are controlled substances and it is a violation of state law to sell, use, deliver, or possess them. Florida Statute Section 893.13 (1981). The acts of Johnny Andrews described in Paragraphs 1 and 2 of the Findings of Fact, constitute violations of Florida Statute 893.13 (1981)

    
    

18. Licensees are not insurers against unlawful acts by their employees. Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). In order to discipline Respondent's license, Division of Alcoholic Beverages and Tobacco must prove that Respondent was culpably responsible for the violations alleged; that he is guilty either of intentional wrongdoing, or of condoning wrongdoing or failing to exercise due diligence in supervising and maintaining surveillance over the licensed premises. See, e.g., G. & B. of Jacksonville, Inc. v. State, 371 So.2d 137 (Fla. 1st DCA 1979), Golden Dolphin No. 2 v. State of Florida, Division of Alcoholic Beverages and Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981)

    
    

19. The evidence in this case establishes that the Respondent was negligent in that he did not ensure that the licensed premises were diligently supervised in his absence. Over a period of approximately two and a half months, an employee, Johnny Andrews, on five different occasions, discussed and sold controlled substances on the licensed premises. The delivery of these controlled substances took place through a drive-in window. On at least one occasion, drugs were used in the licensed premises in the presence of Johnny Andrews and another employee of the bar. The Respondent, Charles Andrews, took no steps to monitor the licensed premises during those hours that he and his wife were not working at the bar and offered no evidence of any steps taken to ensure that the bar was being diligently supervised in his absence. By failing to exercise reasonable care and diligence to see that his licensed premises was conducted in a lawful manner and that his employees did not violate the laws of the State of Florida, the Respondent has violated Florida Statutes 561.29(1)(a).

    
    

20. Penalty. License revocation is an extreme and drastic penalty which should be applied only in the most flagrant cases. Taylor v. State Beverage Department, 194 So.2d 321 (Fla. 2d DCA 1967). Here, the Respondent is guilty of simple negligence, not intentional wrongdoing. He did not know that illicit drugs were being sold on the licensed premises. His failure to diligently supervise operations was due in part to misplaced trust in his son, who was relieving Mr. Andrews and his wife at the bar. accordingly, it is concluded that a civil penalty of $1,000 and a 60-day suspension of Respondent's beverage license is warranted and appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED:

That a Final Order be entered finding the Respondent in violation of Florida statute 561.29, imposing a civil penalty of $1,000,and suspending Respondent's beverage license for a period of 60 days.

DONE and ENTERED this 26th day of April, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS, 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 28th day of April, 1983.

COPIES FURNISHED:

William A. Hatch, Esquire Mr. Howard N. Rasmussen Department of Business Director, Division of Alcoholic

Regulation Beverages and Tobacco

725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301

Mr. Charles D. Andrews Mr. Gary Rutledge

Highway 29, Odom's Bar Secretary, Department of Business Century, Florida Regulation

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-000256

Orders for Case No: 83-000256