STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-628

)

LINDA DIANNE KINSEY d/b/a )

FRED SAID'S, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause cause on for formal hearing before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on March 15, 1983, at Lakeland, Florida.

APPEARANCES

For Petitioner: Daniel J. Bosanko

Staff Attorney

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

For Respondent: Linda Diane Kinsey

3333 Baird Street

Lakeland, Florida 33805 ISSUES AND BACKGROUND

This case concerns the issue of whether Respondent's beverage license should be suspended, revoked, or otherwise disciplined for violations of Sections 893.13 and 561.2, Florida Statutes. The charges arise out of alleged drug sales and possession of drugs on the licensed premises of the Respondent.

At the formal hearing, the Petitioner called as its witnesses Beverage Officer Randall Robert West; Barbara Vohlken, Crime Lab Analyst; Lt. Robert D. Bishop, District Supervisor of the Division of Alcoholic Beverages and Tobacco; Nicholas II. Del Costello, Deputy from the Polk County Sheriff's Department Dennis B. Russo, Polk County Sheriff's Department; Deborah Ann Steiger, Crime Lab Analyst; and Gene Breirly, Evidence Custodian of the folk County Sheriff's Department. The Respondent, Linda Diane Kinsey, testified on her own behalf.

The Petitioner offered four exhibits, which were admitted into evidence without objection.

Counsel for the Petitioner submitted proposed findings of fact and conclusions of law to be considered by the undersigned Hearing Officer. To the

extent that such proposed findings of fact and conclusions of law are not adopted in this order, they were considered by the undersigned Hearing Officer and determined to be irrelevant to the issues in this cause or not supported by the evidence.

FINDINGS OF FACT

1. The Respondent, Linda Diane Kinsey, holds Beverage License No. 63-1339, Series 2-CO. Under this license, she operated a business establishment named Fred Said's located at 913 West Robinson Street, Lakeland, Florida.

   
   

2. On December 3, 1982, Beverage Officer Randall Robert West, accompanied by Dennis B. Russo of the Polk County Sheriff's Department, initiated an undercover investigation of Fred Said's. They arrived at the licensed premises approximately 2 00 p.m. Fred Tucker was behind the bar and served them two beers. The Respondent, Linda Diane Kinsey, was seated on a stool behind the bar. After a short time, Fred Tucker went out in the back of the bar to work on some construction. While he was out back, Deputy Russo approached Tucker about buying some marijuana. Tucker indicated he had some and they went back into the bar where Tucker retrieved a plastic bag of what he represented to be marijuana. The bag was taken from a drawer behind the bar and when Tucker opened the drawer, Officer West saw other bass of what appeared to be marijuana in the drawer. Tucker handed the bag to Deputy Russo who paid him 825. The bag was later verified by laboratory analysis to contain approximately 9 grams of cannabis, a controlled substance listed in Florida Statute 893.03. (See Petitioner's Exhibit 1).

   
   

3. When Fred Tucker took the bag of marijuana out of the drawer, the Respondent, Linda Diane Kinsey, was still seated behind the bar a few feet from the drawer and Fred Tucker. The drawer was in a clear line of sight from where she was seated.

   
   

4. On December 14, 1982, Officer West, along with Investigator Russo and Deputy Nicolas H. Del Costello, returned to Fred Said's. When they arrived, the Respondent, Linda Diane Kinsey, was seated behind the bar. Officer West asked Ms. Kinsey if Fred Tucker was around. He then asked "Does Tucker have a bag for sale?" "Bag" is a common term for marijuana. In response to the question about the "bag for sale", Linda Diane Kinsey nodded her head yes and then got up and went to the back of the bar and called Tucker. Tucker came in and walked over to the game area where officer West and his companions were. After asking what they wanted, Tucker took a bag of marijuana out of his docket and sold it to Officer West. The bag was later confirmed by laboratory analysis to contain approximately 12 grams of cannabis, a controlled substance listed in Chapter 893.03, Florida Statutes. (See Petitioner's Exhibit 2).

   
   

5. When the transfer of marijuana took place on December 14, 1982, on the licensed premises, the Respondent, Linda Diane Kinsey, was seated behind the bar approximately 30 feet away from where the transfer took place.

   
   

6. On December 16, 1982, Officer West, accompanied by Investigator Russo, returned to Fred Said's with a search warrant. In the course of the search of the licensed premises, two plastic bags containing seeds were found. These bags were in the drawer behind the bar from which Fred Tucker had taken the bag of marijuana on December 3, 1982. The bags of seeds were later verified by laboratory analysis to contain 25 grams and 4.6 grams of cannabis, a controlled substance listed in Florida Statute 893.03.

7. During December, 1982, Mr. Fred Tucker was employed as manager of Fred Said's. On December 3, 1982, he was tending bar and was observed signing an invoice for a beer delivery that occurred while Officer West and Investigator Russo were present.

   
   

8. The Respondent testified that she was not aware of Fred Tucker's drug activity. However, she and Mr. Tucker were living together prior to December 16, 1982, and they scent a lot of time together. She was also present in the bar at the time of the purchases on December 3 and December 14. She admitted on cross examination that she was not sure he was dealing but she never asked. She did not recall telling Officer West on December 14 that Fred Tucker had a bag for sale but did not specifically deny such a conversation. She also testified that even while sitting behind the bar, she was not aware of what was going on in the licensed premises. There was no evidence that she, as licensee, had taken any steps to ensure that the premises were properly supervised and not being used for illegal purposes.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. 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.

    
    

11. Section 561.29(1)(a), Florida Statutes (1981), provides that a license may be disciplined if the Division finds a violation by the licensee or 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 Section 893.03 and it is a violation of state law to sell, use, deliver, or possess it. Section 893.13, Florida Statutes (1901)

    
    

12. In order to discipline Respondent's license, the Division of Alcoholic Beverages and Tobacco must prove the Respondent was culpably responsible for the violations alleged; that she 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., Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980)(Golden Dolphin II v. State of Florida, Division of Alcoholic Beverages and Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981); G. & B. of Jacksonville, Inc. v. State, 371 So.2d 137 (Fla. 1st DCA 1979)

    
    

13. The evidence in this case does not establish that the Respondent herself actively participated in selling drugs. However, the evidence does show that on December 14, 1982, she aided Fred Tucker in the sale of marijuana by stating to Officer Test that Tucker had a bag of marijuana and then getting Tucker for Officer West. The purchases which took place on December 3 and December 14, were in the presence of the Respondent and the transfers of marijuana were in clear view from where she was sitting during each of the transfers. The marijuana was kept in a drawer behind the bar and in the search on December 16, 1982, two bags of seeds were found in the same drawer from which Mr. Tucker had retrieved drugs on December 3, 1982. The evidence clearly shows that the Respondent condoned the sale of drugs on her licensed premises. By her own testimony, she admitted that she was not sure that Fred Tucker was selling drugs but that she never asked. Fred Tucker, during the time period of December,

    1982, was manager of the licensed premises and also worked as a bartender. On December 3, 1982, when the drug purchase occurred, he was working behind the bar in the scope of his employment. The evidence also revealed that Fred Tucker and the Respondent lived together prior to December 16, 1982, and spent a great deal of time together. Based upon these facts, it is clear that the Respondent either knew or reasonably should have known that drum transactions were occurring on her licensed premises. Only by looking the other way could the Respondent have avoided this information. The licensee has an affirmative duty to properly supervise her licensed premises and to take reasonable steps to ensure that no illegal activity is occurring on the premises. At best, the Respondent has, by her own testimony in this case, shown that she avoided taking any steps to detect the illicit drug transactions. The Respondent has, therefore, violated Section 561.29 (1)(a) by permitting controlled substances to be sold an possessed on her premises by an employee of the licensed premises.

    
    

14. 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 more than simple negligence. She was aware that illicit drug violations were taking place on the licensed premises and took no steps to prevent these sales. Her failure to take proper steps to prevent such violations constitutes a condoning of the illegal activity and an intentional failure on her part as licensee to properly supervise the operation of her licensed premises. Accordingly, it is concluded that the revocation of Respondent's alcoholic beverage license is warranted and appropriate.

RECOMMENDATION

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

That Respondent's alcoholic beverage license he revoked.

DONE and ENTERED this 29th 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 29th day of April, 1983.

COPIES FURNISHED:

Daniel J. Bosanko, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Mr. Howard M. Rasmussen Director

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Mr. Gary Rutledge Secretary

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

Ms. Linda Diane Kinsey 3333 Baird Street

Lakeland, Florida 33805

Docket for Case No: 83-000628

Orders for Case No: 83-000628