DEPARTMENT OF BUSINESS REGULATION ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
vs. ) CASE NO. 83-1152
) FRIENDLY TAVERN, INC. d/b/a ) FRIENDLY TAVERN, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Arnold H. Pollock, held a formal hearing in this case on April 22, 1983, in Sarasota, Florida.
For Petitioner: Harold F. X. Purnell, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: S. Thomas Padgett, Esquire
Whether Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined on the grounds stated in Petitioner's Notice to Show Cause dated April 13, 1983.
On April 13, 1983, the Division of Alcoholic Beverages and Tobacco (Division) issued a Notice to Show Cause why the Respondent's license should not be disciplined because of alleged sales of marijuana on the premises by an employee of Respondent, and the maintaining of a public nuisance, in violation of Sections 561.29(1)(a) and 823.01 and 823.10, Florida Statutes (1981).
At the hearing, Petitioner presented the testimony of Mark Willingham, Jim Fulton, John P. Viana, Barbara H. Vohlken, and Keith Hamilton, and Petitioner's Exhibits 1 through 6. Respondent presented the testimony of Ann M. Anderson Wetherington, President and sole stockholder of Respondent corporation.
At all times pertinent to this hearing, Respondent possessed alcoholic beverage license number 28-319, Series 2-COP, located at 1963 27th Street, Sarasota, Florida, where it operated the Friendly Tavern.
Respondent's place of business is well known to the intelligence unit of the Sarasota Police Department (SPD) , as a place where sales of narcotics are conducted both inside the premises and on the grounds. This information comes from confidential informants and intelligence reports submitted by officers working in the field.
Sergeant John P. Viana, SPD, works primarily in this area of town and is personally aware of two recent drug arrests at Respondent's tavern. One took place about 3 to 4 weeks prior to April 13, 1983, and the other, about 3 to 4 weeks prior to that. In the first arrest mentioned, three officers were injured and several arrests were made. In the second, the offender actually ran into Respondent's tavern to escape arrest.
Beverage Officer Keith Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's tavern during late March and early April, 1983. He is a qualified narcotics investigator and is familiar with the appearance and me11 of marijuana.
At approximately 11:30 A.M. on March 24, 1983, Hamilton entered the Friendly Tavern, went to the bar and ordered a beer. While drinking, he asked the barmaid, Clarice, if she knew where he could get marijuana. When she indicated she did, he then gave her $10.00. She went down to the other end of the bar, talked with an unidentified black male, and returned to him with a bag of vegetable substance and $4.00 change. She gave him this bag after taking out enough of its contents for two cigarettes, one of which she smoked. After receiving the bag, Hamilton gave Clarice $1.00 with which to purchase rolling papers for him, which she did. The substance in the bag referenced above was subsequently tested at the laboratory of the Florida Department of Law Enforcement, and identified as marijuana. All tests referred to herein were conducted at that same laboratory.
Later that same day, at approximately 3:00 P.M., Hamilton went back into the Friendly Tavern where, after playing pool with a patron, he again went to the bar, had a beer, and asked Clarice if he could purchase more marijuana. This time he gave her $12.00 which she took to the end of the bar, called over a black male, and gave him the money. This individual left the area and when he came back shortly thereafter, he gave what he had with him to Clarice who brought it to Hamilton. This substance, in two separate bags, was subsequently tested and identified as marijuana.
The next day, March 25, at approximately 1:00 A.M., Hamilton went back to the Friendly Tavern. This time, Clarice was not there and Hamilton talked with a female patron who, in his opinion, was using marijuana. He asked her where he could get some and she told him she would send someone to him, whereupon she left the bar. Shortly thereafter, a man, subsequently identified as "Pop," came in and approached him. After a short discussion, Hamilton paid Pop $10.00,getting in return a bag of a vegetable substance subsequently tested and identified as marijuana. All during this transaction, Hamilton and Pop were in clear view of the barmaid.
About 10:00 P.M. the same day, Hamilton went back to the Friendly Tavern and talked with Clarice who was playing pool at the time. Hamilton gave her $10.00 to buy some marijuana for him and left. When he came back about an hour later, she gave him the substance which was later tested and determined to be marijuana.
Hamilton did not return to the Friendly Tavern until April 9, 1983. On this day, when he entered, he talked with Clarice who was upset with him because he had not been back as he had promised. When he asked her about marijuana, she left the bar returning shortly thereafter with a black male with whom she talked at the other end of the bar. Soon, she called Hamilton over and told him that this person had only $10.00 bags for sale, as opposed to the $6.00 bags she had purchased previously. Hamilton indicated he did not want to buy any at that price but Clarice encouraged him to do so saying it was good quality. He did buy some, whereupon Clarice took it behind the bar and rolled two cigarettes with it. While she was doing this, she asked Hamilton to stand over by the pool tables and keep watch. When she had rolled the first two cigarettes, Clarice asked Hamilton if he wanted her to roll some for him, to which he replied "yes." When she had done so, he went to the bar and got them and the remaining substance which was later tested and identified as marijuana.
On the several occasions Hamilton visited Respondent's tavern he did not see Mrs. Wetherington there. In fact, the only employees he saw on the premises were Clarice and the other unidentified barmaid. He smelled marijuana smoke in the bar only once when he was in there other than when smoked by Clarice, and on only one occasion did he see other patrons smoking what he believed to be, from his training, marijuana.
Mrs. Ann M. Anderson-Wetherington, a public health nurse for the Sarasota County Health Department, is the sole stockholder in Friendly Tavern, Inc.. She is also the manager and does all the hiring and firing. She is on the premises almost every afternoon at shift change, approximately 6:30 P.M., to check the cash, etc. The Friendly Tavern is open from 10:30 A.M. to 2:30 A.M. on Monday through Saturday and from 12:30 P.M. to 2:30 A.M. on Sunday.
In March and April, 1983, the Friendly Tavern had three employees, Claritha Harris (Clarice) and Fanny Lou Williams, both barmaids, and Lawrence Major, a custodian.
Mrs. Wetherington claims to have a staff meeting each Sunday before opening during which she updates her employees on her policies. This lecture frequently includes specific prohibitions against the use, possession, or sale of drugs on the premises. She was out of town during the raid on April 13, 1983, and states she first learned of the sales of marijuana when she returned to town on April 17. When she learned of Clarice's sales, she immediately fired her and had she known earlier, she would have fired her earlier. Her other employees never told her about Clarice's activities nor did the Division ever contact her directly about drug activity in her establishment. In light of the two previous drug arrests at the Friendly Tavern, as testified to by Sergeant Viana, however, I find that she did know, or should have known, of the activities going on in there regarding drugs.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
The Division has the authority to revoke or suspend the license of any licensee when it finds that either the licensee or his agents have violated certain state laws on the licensed premises. Section 561.29(1)(a), Florida Statutes (1981).
A showing of but one isolated violation combined with a showing that the licensee otherwise took pains to obey the law would not normally support a revocation. However, if the evidence shows that the laws are repeatedly and flagrantly violated by the employees, there arises an inference that the violations were either fostered, condoned, or negligently overlooked by the licensee, notwithstanding her absence from the premises when the violations took place; Pauline v. Lee, 147 So.2d 359 (2nd DCA Fla. 1962); Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (3rd DCA Fla. 1982). As a result of the above cases and others similar, the standard of simple negligence may be applied to the revocation of a beverage license;. Bach v. Florida State Board of Dentistry, 378 So.2d 34 (1st DCA Fla. 1979). In that connection, a licensee has the obligation of maintaining sufficient intelligence with regard to his own establishment so as to know at least generally what his employees are doing and his failure to do so constitutes a lack of reasonable diligence and a failure of proper management; G&B of Jacksonville, Inc. v. State Department of Business Regulation, 371 So.2d 138 (1st DCA Fla. 1979).
In allegations 1 through 4, Respondent is alleged to have violated Section 561.29(1)(a), by allowing its employee, Clarice, to commit felony sales of marijuana twice on March 24, once on March 25, and once on April 19, 1983, in violation of Section 893.13, Florida Statutes (1981).
Section 893.13(1)(a)2, Florida Statutes 1981) states:
893.13 Prohibited acts; penalties.-- (1)(a).
2. A controlled substance named or described
in s. 893.03(1)(c), (2)(c), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Officer Hamilton's testimony, uncontested by the Respondent, clearly establishes that the sales took place as alleged as well as the fact that the place was resorted to by persons both using and selling controlled substances, here marijuana, as alleged in Allegation 5.
Finally, in Allegation 6, Respondent is alleged to have maintained a public nuisance on its premises by allowing people to use it as a place for using, keeping, selling, or delivering a controlled substance. Section 823.01(1) and Section 823.10, Florida Statutes (1981) , state:
823.01 Indictment for nuisance; removal by county court judge.- -
(1) All nuisances which tend to annoy the com- munity or injure the health of the citizens in general, or to corrupt the public morals, shall be misdemeanors of the second degree, punishable as provided in s. 775.083.
823.10 Places where controlled substances are illegally kept, sold, or used, declared
declared a public nuisance.--
Any store, shop, warehouse, dwelling house, building, vehicle, ship, boat, vessel, aircraft, 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. No person shall keep or maintain such pub- lic nuisance or aid and abet another in keeping or maintaining such public nuisance.
Without question, the marijuana used, sold, and delivered within the Friendly Tavern is a controlled substance covered by the statute. Consequently this conduct, adequately established by the evidence, constitutes a violation of Section 561.29(1)(a), as well.
However, while the conduct complained of may technically violate the terms of the statute, it is nonetheless necessary to establish that Respondent participated in, was aware of and condoned, or was negligently unaware of this misconduct before disciplinary action may be taken. Since I have already found that Respondent had only three employees and Mrs. Wetherington visited the premises on a daily basis, it is difficult to believe she did not know, or could not have easily have made herself aware of the employee's misconduct, especially in light of the two previous drug arrests made on the premises. Her failure to do so, therefore, constitutes negligence which subjects the Respondent to discipline for violations of the statutes in question.
The parties have submitted posthearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adapted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
That Respondent's alcoholic beverage license number 68-319, Series 2-COP, be suspended for a period of 90 days and that it pay a fine of $100.00 for each of six violations alleged.
RECOMMENDED this 24th day of May, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1983.
Harold F. X. Purnell, Esquire General Counsel
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
S. Thomas Padgett, Esquire 2168 Main Street
Mr. Howard M. Rasmussen Director, Division of Alcoholic
Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Gary R. Rutledge Secretary, Department of
