STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-1616

) ANNIE L. WRIGHT, d/b/a COFFEE'S ) DRAFT BEER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 22, 1983, in Jacksonville, Florida.

APPEARANCES

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

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Annie L. Wright, pro se

1703 North Liberty Street Jacksonville, Florida

BACKGROUND

By Notice to Show Cause issued on November 18, 1982, Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, has alleged that Respondent, Annie L. Wright, d/b/a Coffee's Draft Beer, was guilty of ten violations of Section 561.29, Florida Statutes, for which disciplinary action against her beverage license should be taken.

On January 24, 1983, Respondent requested a formal hearing to contest the allegations pursuant to Subsection 120.57(1) Florida Statutes. The matter was referred by Petitioner to the Division of Administrative Hearings on May 24, 1983, with a request that a hearing officer be assigned to conduct a formal hearing

By notice of hearing dated June 2, 1983, the matter was scheduled for a final hearing on June 22, 1983, in Jacksonville, Florida. At the final hearing Petitioner presented the testimony of Keith B. Hamilton, Alfonso Scott Junious, Tillman Hicks and Wendell M. Reeves, and offered Petitioner's Exhibits 1 and 2; both were received in evidence. Respondent testified on her own behalf.

ISSUE

The issue herein is whether Respondent is guilty of the allegations in the Notice to Show Cause.

FINDINGS OF FACT

Based upon all the evidence the following Findings of Fact are determined:

1. Respondent, Annie L. Wright d/b/a Coffee's Draft Beer, is the holder of license number 26-1716,License Series 2-COP, issued by Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division).

   The license authorizes Respondent to operate an establishment at 2601 Pearl Street, Jacksonville, Florida to sell beer and wine with consumption on premises.

   
   

2. On or about August 12, 1982, Division Beverage Officer Hamilton visited Respondent's licensed premises for the purpose of purchasing illegal drugs. The officer sat at the bar and ordered a beer. While seated at the bar, he observed a card game in progress on the premises in which U.S. currency was being transferred between the players. He also observed two individuals named Red and Wesley who were smoking two cigarettes that the officer believed to be marijuana. When the officer asked a patron where he could purchase marijuana, he was directed to Nell, a cardplayer, who sold him a manila envelope allegedly containing marijuana for $5.00. A drug analysis performed at a later date confirmed that the envelope did indeed contain 2.6 grams of cannabis. The purchase of the drug was made in plain view of the card players, bartender and other patrons seated at the bar. At no time did the bartender (Faye) attempt to stop the gambling, use of drugs or the sale of drugs or to ask the individuals to leave the premises.

   
   

3. On or about August 21, 1982, Officer Hamilton returned to Respondent's licensed premises around 11:15 a.m. Faye was on duty as bartender. While there the officer observed a female named Doris Jean Johnson take out a cigarette and smoke it in the presence of the bartender and another female patron. The cigarette was passed to the other female patron who also smoked it. Based upon the odor emanating from the cigarette, Officer Hamilton believed it was marijuana. While smoking the cigarette Faye cautioned Johnson to be careful since police officers occasionally visited the premises. The beverage officer also observed four unidentified males on the premises playing cards. United States currency was being bet on each game and transferred between the card players upon the completion of the games.

   
   

4. On or about August 28, 1982, Beverage Officer Junious visited Re5pondent'5 licensed premises around 6:30 p.m. He sat at the bar and ordered a beer from a bartender named Tommy. Officer Junious asked Tommy where he could purchase some "grass". He was told someone on the premises should have some for sale but he (Tommy) wasn't exactly sure whom. While seated at the bar Officer Junious saw six hand-rolled cigarettes being smoked by patrons in plain view of the bartender and other patrons. Based upon their odor and the manner in which they were smoked, the officer believed the cigarettes to be marijuana.

   
   

5. On or about September 4, 1982, Beverage Officer Hamilton visited the licensed premises around 4:10 p.m. and ordered a beer from an unidentified male bartender. He observed a card game in progress in which U.S. money was being bet and transferred between the players. The bartender also took a "cut" from the pot on several occasions. During the game Wesley, a card player, pulled a

   manila envelope from his pocket, had a female patron roll a cigarette from its contents, and then smoked it. Based upon its odor and the manner in which it was smoked, Officer Hamilton believed the cigarette to be marijuana.

   
   

6. On or about September 29, 1982 Beverage Officer Hicks executed a search warrant on the premises and arrested Doris Jean Johnson for possession of cannabis. A laboratory analysis later confirmed that Johnson was in possession

   8.6 grams of cannabis.

   
   

7. Respondent stated that when the above events occurred, she was working another full-time job. For that reason she hired Faye to manage the establishment. When Faye was hired she was instructed not to permit gambling or smoking on the premises. She also posted a sign on the front of the building which read "No drugs allowed on premises. Because of her full-time job, and the fact she had no transportation and did not live nearby, Respondent visited the premises only at night. When she learned that drugs and gambling had been discovered at her business, she fired all employees who were working during that period of time.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

9. In its notice to show cause, Petitioner has charged Respondent with engaging in illegal activities on five separate occasions. The illegal activities include (a) the sale of cannabis and the keeping of a place where cannabis was sold on August 12, 1982; (b) the keeping of a place where cannabis was used and maintaining a place for the purpose of gambling on August 21, 1982;

   (c) keeping a place where cannabis was used and maintaining a place for the purpose of gambling on August 28, 1982; (d) keeping a place where cannabis was used and maintaining a place for the purpose of gambling on September 4, 1982; and (e) possessing a controlled substance and keeping a place where cannabis was kept, sold or used on September 29, 1982. Each of these is alleged to be in violation of Subsection 561.29(1)(a) , Florida Statutes. That subsection permits the Division to revoke or suspend a beverage license where there is a:

   
   

   (1)(c) Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises. . or any of the

   laws of this state. . ,or permitting another on the licensed premises to violate any of

   the laws of this state. .

   
   

   The laws which have allegedly been violated are Sections 823.10, 849.01, and 893.13, Florida Statutes, which relate to keeping a place where cannabis is sold, used or kept, gambling, and selling a controlled substance , respectively.

   
   

10. For Respondent to be held accountable for the above violations by its agent or employee, there must be sufficient evidence to show that the licensee was culpably responsible for the alleged violations as a result of his own negligence, intentional wrongdoing or lack of diligence." G&B of Jacksonville, Inc. v. State of Florida, 366 So.2d 877,878 (Fla. 1st DCA 1979) The activity must be persistent or recurring, and involve more than one employee on a single occasion. Pauline v. Lee, 147 So.2d 359, 364 (Fla. 2nd DCA 1962).

11. Even though the owner-licensee was unaware of the illegal activity, she failed to exercise reasonable care and diligence to insure that the business was conducted in a lawful manner. The illicit conduct occurred on a number of occasions, and was done in an open and notorious manner. Therefore, it is concluded that Respondent is guilty of violating Section 561.29 as charged in the notice to show cause.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in the notice to

show cause, and that her beverage license number 26-1716 be suspended for a period of thirty days.

DONE and RECOMMENDED this 28th day of June, 1983, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 June, 1983.

COPIES FURNISHED:

James N. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301

Annie L. Wright

1703 North Liberty Street Jacksonville, Florida

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

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

Docket for Case No: 83-001616

Orders for Case No: 83-001616