STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-2066

)

HENRY STRIPLING and THOMAS ) OLHAUSEN, d/b/a TRACKSIDE LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on June 21, 1983, in Miami, Florida. Thereafter, proposed findings of fact and conclusions of law were submitted by the parties. These have been considered. Where not adopted, they were found to be irrelevant, immaterial, or not supported by the weight of the credible evidence, and have been rejected.

APPEARANCES

For Petitioner: William A. Hatch, Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent, Mark A. Jacobs, Esquire Henry Stripling: 18204 Biscayne Boulevard

North Miami Beach, Florida 33160

For Respondent, Richard F. Hayes, Esquire

Thomas Olhausen: 4601 Ponce de Leon Boulevard, Suite 20

Coral Gables, Florida 33146

By Notice to Show Cause issued by the Petitioner on June 13, 1983, the Respondents were charged in three counts wish violations of Section 893.13, Florida Statutes, prohibiting the sale, delivery or possession of a controlled substance, namely cocaine; with maintaining a store or place which is resorted to by persons using controlled substances or which is used for keeping or selling them, in violation of Chapter 893, Florida Statutes; and with maintaining a public nuisance on their premises which are visited by persons for the purpose of unlawfully using, selling or delivering controlled substances, in violation of Sections 823.10 and 823.01, Florida Statutes. The Petitioner seeks to suspend or revoke the alcoholic beverage license held by the Respondents, pursuant to Section 561.29(1)(a), Florida Statutes.

By stipulation at the hearing, the Respondents admitted the facts alleged in count one of the Notice to Show Cause, and the Petitioner dismissed counts two and three.

FINDINGS OF FACT

1. The Respondents, Thomas Olhausen and Henry Stripling, d/b/a Trackside Lounge, hold Beverage License No. 23-1647, Series No. 4-COP, which was issued for the current year.

   
   

2. On or about June 5, 1983, the Respondent Thomas Olhausen sold a controlled substance, namely cocaine, to Beverage Officer Terminello while he was on the licensed premises known as Trackside Lounge in Dade County, Florida.

   
   

3. On or about June 8, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Dodson while he was on the Trackside Lounge premises.

   
   

4. On or about June 12, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Terminello while he was on the premises of Trackside Lounge.

   
   

5. The Respondent Henry Stripling did not go onto the Trackside Lounge between the dates of March 10 and June 10, 1983, pursuant to a restraining order issued on March 10, 1983, by the Dade County Circuit Court.

   
   

6. This March 10, 1983, court order appointed two receivers to supervise the operation of the business known as Trackside Lounge. Pursuant to this authority the receivers employed Thomas Olhausen to operate and manage the business. Thus, Thomas Olhausen was not subject to the restraining order which barred Henry Stripling from entry onto the Trackside Lounge premises.

   
   

7. The Respondent Henry Stripling had no connection with the sale of cocaine by the Respondent Thomas Olhausen to the Beverage Officers on June 5, 8 and 12, 1983.

   
   

8. The court order of March 10, 1983, did not attempt to effect a judicial transfer of the beverage license held by the Respondents.

   
   

9. The court appointed receivers did not file an application for a beverage license pursuant to Section 561.17, Florida Statutes, and there is no evidence that the receivers attempted to transfer the beverage license held - by the Respondents pursuant to Section S61.32(1)(a) and (b), Florida Statutes, or Section 7A-2.06(6), Florida Adminstrative Code.

   
   

10. The court appointed receivers did not file a certified copy of the order appointing them as receivers with the Division of Alcoholic Beverages and Tobacco pursuant to Section 7A-2.06(6), Florida Administrative Code.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

12. Section 561.29(1)(a), Florida Statutes, authorizes the Division of Alcoholic Beverages and Tobacco to revoke or suspend an alcoholic beverage license when it is shown that the licensee, or his agent or employee, while on the licensed premises, violated any law of the State of Florida.

13. Section 893.13(1)(a), Florida Statutes, makes it unlawful for any person to sell a controlled substance. Cocaine is a controlled substance pursuant to Section 893.0 3 (2), Florida Statutes.

    
    

14. Based on the stipulation between the parties, it is concluded that Thomas Olhausen did sell a controlled substance, namely cocaine, on the dates in question as alleged in Count I of the Notice to Show Cause, in violation of the provisions of Chapter 893, Florida Statutes.

    
    

15. The licensees of record on the dates in question were Henry Stripling and Thomas Olhausen as reflected by the records of the Division of Alcoholic Beverages and Tobacco.

    
    

16. Section 561.17, Florida Statutes, requires that any person, before engaging in the alcoholic beverage business, file an application for a beverage license. Further, Section 7A-2.06(6), Florida Administrative Code, provides:

    
    

    (6) Appointee of Court: If, under judicial proceedings, an appointee of a court of competent jurisdiction is ordered to

    conduct the business on the licensed premises, the alcoholic beverage license involved shall be transferred to the name of such appointee, pending further order of the court, upon the filing with the Division of a certified copy of the

    order of appointment.

    
    

17. The co-receivers did not follow the provisions of section 561.17, Florida Statutes, or the provisions of Section 7A-2.06(6), Florida Administrative Code, and thus the receivers are not licensees of record in this proceeding.

    
    

18. The legal licensees of record, Henry Stripling and Thomas Olhausen, are responsible for illegal acts committed on the licensed premises, such as those alleged in Count I of the Notice to Show Cause.

    
    

19. On three occasions the Respondent, Thomas Olhausen a licensee, sold the controlled substance known as cocaine on the licensed premises in violation of Sections 561.29 and 893.13, Florida Statutes. This direct knowledge and participation by the licensee warrants revocation of the alcoholic beverage license held by both of the Respondents.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the alcoholic beverage license held by the Respondents,

Thomas Olhausen and Henry Stripling, being number 23-1647, Series No. 4-COP, be

revoked.

THIS RECOMMENDED ORDER entered this 26th day of July, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS, 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 26th day of July, 1983.

COPIES FURNISHED:

William A. Hatch, Esquire 725 South Bronough Street Tallahassee, Florida 32301

Mark A. Jacobs, Esquire 18204 Biscayne Boulevard

North Miami Beach, Florida 33160

Richard F. Hayes, Esquire Suite 20

4601 Ponce de Leon Boulevard Coral Gables, Florida 33146

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

Howard M. Rasmussen, Director

Division of Alcoholic Beverages & Tobacco 725 South Bronough Street

Tallahassee, Florida 32301

Docket for Case No: 83-002066

Orders for Case No: 83-002066