STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-564

)

LARRY LYLES, et al., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings on June 23, 1983, in Jacksonville, Florida.

APPEARANCES

For Petitioner: James N. Watson, Jr., Esquire

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

For Respondent: No Appearance

INTRODUCTION AND BACKGROUND

The Notice to Show Cause, upon which this action is based, was served upon the Respondent, Larry Lyles, by certified mail return receipt requested on November 26, 1982. That Notice to Show Cause charges the Respondent with multiple violations of Chapter 893 and Section 561.29 of the Florida Statutes. Pursuant to a request for formal hearing, this matter was noticed for hearing for April 28, 1983, in Jacksonville, Florida. The matter was continued at that time due to the inability to serve a copy of the Notice of Hearing on the Respondent by mail. The matter was subsequently noticed for hearing on June 23, 1983, for Room 415 in the Richard P. Daniel Building at 111 East Coastline Drive, Jacksonville, Florida. The testimony of Wendall Morgan Reeves, a beverage officer with the Division of Alcoholic Beverages and Tobacco given under oath at the formal hearing on June 23, 1983, established that a copy of the Amended Notice of Hearing was served upon a Mr. Cornelius Harmon at the licensed premises located at 306 West Eighth Street, Jacksonville, Florida. Mr. Reeves also attempted to serve a copy of the notice at the Respondent's residence at 239 West Twelfth Street, Jacksonville, Florida. The neighbors indicated that the Respondent had not been present there for some four to six months. He also attempted to serve the Respondent at his place of employment, at 1375 West Church Street, Jacksonville, Florida, and his employer stated that he had been laid off and he was not aware of his whereabouts. In addition, the Division of Alcoholic Beverages and Tobacco placed a public notice in the

Florida Times Union on Wednesday, June 1, 1983, informing Mr. Larry Lyles of the June 23 hearing. A copy of that notice is in evidence as Petitioner's Exhibit

1. A copy of the Amended Notice of Hearing, which was served on Mr. Cornelius Harmon at the licensed premises, is in evidence as Petitioner's Exhibit 2.

   
   

   Petitioner called as witnesses in the formal hearing Beverage Officer Keith Bernard Hamilton and Beverage Officer Wendall Morgan Reeves. Petitioner offered and had admitted five exhibits and filed a late-filed exhibit, Petitioner's Exhibit 6. Respondent did not appear, and therefore, presented no evidence.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material hereto, the Respondent, Larry Lyles, was the holder of Florida Beverage License No. 26-2105, license series 2ABS. The licensed premises to which this license was issued is Larry and Gail's Pool Hall, 306 West Eighth Street, Jacksonville, Florida.

      
      

   2. On August 11, 1982, Mr. Keith Bernard Hamilton, a beverage officer for the Division of Alcoholic Beverages and Tobacco, went to the licensed premises pursuant to an assigned drug investigation. Officer Hamilton, after entering the licensed premises, purchased a beer from Gail Thomas a/k/a Patricia Ann Thomas. Gail Thomas was tending bar. After purchasing the beer, Officer Hamilton sat in a chair approximately 20 feet from the bar, and a few minutes later, approached a young man named Larry and asked about buying some smokes". "Smokes" is a term commonly used to refer to marijuana. Larry asked him how much he wanted and whether he had the money with him. Officer Hamilton stated he wanted two (2) bags and that he did have the money. Officer Hamilton then gave Larry $10 and Larry walked over to a young man named Hamp. Larry handed Hamp the $10 in currency and Hamp handed Larry two small manila envelopes. This exchange took place approximately five feet from the bar in the presence of Gail Thomas. Gail Thomas was one of the owners of the bar. The conversation between Officer Hamilton and Larry was in a normal tone of voice and could have been easily overheard by Gail Thomas and others in the bar.

      
      

   3. After receiving the two () manila envelopes from Hamp, Larry handed them to Officer Hamilton. Later, lab analysis revealed that these two envelopes contained cannabis, a controlled substance under Chapter 893, Florida Statutes.

      
      

   4. On August 20, 1982, Officer Hamilton returned to the licensed premises. After entering, he purchased a beer from Gail Thomas and began playing pool. When Gail Thomas began cleaning a table near the pool table, he asked her if anyone had "smokes". She said no but that someone next door might. She then indicated she was going next door to get change. She left, and upon returning, she informed Officer Hamilton that a man next door had some "smokes". She then asked if he wanted her to get some for him. He said yes and gave her $20 in currency. She left and came back with two manila envelopes and two $5.00 bills as change. Later, lab analysis revealed that the two manila envelopes contained cannabis, a controlled substance under Chapter 893, Florida Statutes.

      
      

   5. On August 21, 1982, Officer Hamilton again visited the licensed premises, and upon entering, purchased a grape soda from Gail Thomas. He saw the young man named Hamp shooting pool and walked over to him and asked him about purchasing some smokes. Hamp said he had some real good stuff and that if he didn't like it, he would buy it back. Officer Hamilton then purchased one manila envelope from Hemp. The exchange took place in the presence of Gail Thomas, who was nearby cleaning tables. After the exchange, Hemp suggested to Officer Hamilton that he try some of the material in the envelope there in the

      bar. Officer Hamilton declined and Hamp told him "It's okay, Gail doesn't care". Later, lab analysis revealed that the envelope purchased from Hemp contained cannabis, a controlled substance under Chapter 893, Florida Statutes.

      
      

   6. At the time of each of the purchases on August 11, 20, and 21, 1982, Gail Thomas was the only bartender or person actually working in the licensed premises. Officer Hamilton never observed another employee or person supervising or maintaining in any way the licensed premises.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   8. The Division of Alcoholic Beverages and Tobacco is empowered by Florida Statute 561.29 to suspend or revoke a beverage license or to impose a civil penalty when the Division finds that a licensee has violated a specific section of 561.29.

      
      

   9. Section 561.29(1)(a) , Florida Statutes (1981) provides that a license may be disciplined if the Division finds a violation by the licensee, his agents, officers, servants, or employees, on the licensed premises of any of the laws of this state. Cannabis is a controlled substance under Florida Statute

      893.03 and it is a violation of Section 893.13, Florida Statutes (1981) to sell, use, deliver, or possess such a controlled substance.

      
      

   10. A license may also be disciplined by the Division if the licensee is found guilty of "maintaining a nuisance on the licensed premises." Section

       561.29 (1)(c) , Florida Statutes (1981). Section 823.10 of the Florida Statutes declares a place or building where controlled substances are illegally kept, sold, or used to be a nuisance.

   11. Florida Statutes 893.13(2)(a)(5) makes it unlawful for any person: To keep or maintain any store, shop,

       warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place which is resorted to by persons using controlled substances in viola- tion of this chapter for the purpose

       of using these substances, or which is used for keeping or selling them in violation of this chapter.

       
       

       A violation of this section also constitutes a violation of the Beverage Law through Section 561.29(1)(c), Florida Statutes.

       
       

   12. Negotiating a sale of a controlled substance or acting as a go-between in arranging such a drug transaction is a violation of Florida law and will subject a person committing such acts to a conviction under the criminal laws of Florida. Nadjawski v. State, 371 So.2d 544 ($1a. 2d DCA 1979), State v. Hubbard, 328 So.2d 465 (Fla. 2d DCA 1976), State v. Dent, 322 So.2d 543 (Fla. 1975). Florida Statute Section 776.011.

       
       

   13. In the instant case, the evidence establishes clear violations of Florida Statutes 561.29(1)(c) and 561.29(1)(a) as alleged in the Notice to Show Cause. On three different dates Beverage Officer Hamilton was able to purchase

       a controlled substance in open transactions. Drugs were discussed openly in the presence of Gail Thomas, the bartender and one of the owners of the licensed premises. The transactions, specifically, the physical exchange of the drugs for money, occurred in the presence of Gail Thomas. No objection to these transactions was ever expressed by Gail Thomas or any other person in the licensed premises. On August 20, 1983, Gail Thomas, while on duty at the licensed premises, personally obtained the controlled substances for Beverage Officer Hamilton. On each of the three dates when purchases of controlled substances occurred, Gail Thomas was the only employee working at the bar. She not only condoned, but actively participated in the drug transactions. Officer Hamilton observed no efforts on the part of Gail Thomas or anyone else to prevent or discourage the drug transactions.

       
       

   14. 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 1962). Here, the Respondent's employee and fellow owner was actively involved in drug transactions and was aware that other persons were selling controlled substances on the licensed premises. No steps were taken to prevent any of the drug transactions. This shows an intentional and deliberate disregard of the laws of Florida and the responsibilities of a licensee in properly supervising his employees and controlling the activities on the licensed premises. Accordingly, it is concluded that the revocation of Respondent's alcoholic beverage license is warranted and appropriate.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That Respondent's alcoholic beverage license be revoked.

DONE and ENTERED this 30th day of June, 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 30th day of June, 1983.

COPIES FURNISHED:

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

Mr. Larry Lyles

306 West Eighth Street Jacksonville, Florida

R. R. Caplano, Captain Division of Beverage Post Office Box 5787

Jacksonville, Florida 32202

Mr. Gary Rutledge Secretary

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

Mr. Howard M. Rasmussen Executive Director

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-000564

Orders for Case No: 83-000564