STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 83-3023
) WILLIE LEE and J. L. SIMMONS, ) d/b/a PALATKA BLUE DIAMOND, )
)
Respondents. )
)
RECOMMENDED ORDER
Consistent with the order of the undersigned dated February 21, 1984, setting the time and place of hearing, a hearing was held in this case before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, in Palatka, Florida, on May 7 and 8, 1984. The issue for consideration was whether the Respondents' alcoholic beverage license should be disciplined because of the alleged misconduct outlined in the Notice to Show Cause filed herein.
APPEARANCES
For Petitioner: Louisa E. Hargrett, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondents: Angus W. Harriett, Esquire
314 St. Johns Avenue Palatka, Florida 32077
BACKGROUND INFORMATION
Petitioner filed a Notice to Show Cause against Respondents on February 15, 1983, a copy of which was served on Queen Esther Simmons, Respondents' manager, on February 22, 1983, alleging numerous violations of the Florida Beverage Laws at Respondents' licensed premises, the Palatka Blue Diamond, between May and October 1982. Respondents took exception to the allegations contained in the Notice to Show Cause and demanded a hearing.
At the hearing, Petitioner presented the testimony of Alphonso S. Junious, a beverage agent with Petitioner agency; Thomas Zimmer, a crime lab analyst with the Florida Department of Law Enforcement laboratory in Jacksonville; Oda Somera, also a crime lab analyst with the FDLE Jacksonville laboratory; Sherma
Moore, a crime lab analyst in Jacksonville; and Tommy Lee Ewing, a lieutenant with Petitioner, Division of Alcoholic Beverages and Tobacco; and introduced
Petitioner's Exhibits 1 through 4. Petitioner's Exhibit 5 was offered, but withdrawn before admission.
Respondents presented the testimony of Homers Scroggin, a supervisor with Petitioner's Gainesville office; Willie Lee Simmons, Sr., one of the Respondents and co-owner of the Palatka Blue Diamond; Johnny Lee Simmons, also a Respondent and co-owner; John James Melton, a deputy sheriff with Putnam County; Abraham B. Smith, a frequent patron of the Respondent establishment; Rudulph Swindler, Jr., also a patron; Earl Lightfoot, a salesman for Eli Witt Tobacco Company who sells to Respondent establishment; James Williams, Jr., a frequent patron of the establishment; Leroy Lane, an employee of the Palatka Blue Diamond; and Queen Esther Simmons, Johnny Simmons' wife and a bartender at the Respondent establishment.
FINDINGS OF FACT
At all times material to the allegations contained herein, Respondents held alcoholic beverage license No. 64-00029 for the Palatka Blue Diamond, located at 424 North 11th Street, Palatka, Florida.
Alphonso S. Junious is a beverage investigator with the Fort Lauderdale office of the Division of Alcoholic Beverages and Tobacco and has been so since August 1971. [During that period of time, he has investigated seven cases for Petitioner which involved marijuana.] He has had considerable specialized training in drug identification, having been a drug and alcohol specialist while in the military, and since his discharge has taken several courses in drug identification and detection, including 80 hours training with the U.S. Drug Enforcement Agency. He is able to identify marijuana by sight and smell based not only on his formalized training and experience as an adult, but also from the fact that he used it when he was younger.
On May 12, 1982, pursuant to instructions given him as a part of an investigation into Respondents' premises, he entered the Palatka Blue Diamond, went to the bar and ordered a beer. Leroy Lane and Queen Ester Simmons, whom he subsequently identified by name, were working behind the bar, selling drinks. While there, he noticed the smell of marijuana smoke and also saw people in the bar area making what appeared to him to be marijuana cigarettes. He identified them from the way they were rolled; a method consistent with what he recognized as hand-rolled marijuana cigarettes. The cigarettes were small and had crimped ends. The smokers utilizing these cigarettes were at the bar at the time in plain view of the bartenders, neither one of whom made any effort to stop this course of conduct.
On May 14, 1982, he again went to the Palatka Blue Diamond and stood at the bar. The same two bartenders were there. He saw an unidentified black female sitting at the bar roll what appeared to him to be a marijuana cigarette. The paraphernalia with which she was making the cigarette was sitting out on top of the bar, and the bartenders were standing approximately 6 to 8 feet away. During the entire time he was there, he did not hear either bartender attempt to stop the young lady from making the cigarette. By the same token, he did not see her smoke it, either. He did, however, observe others smoking what appeared to be, and smelled to him like, marijuana while walking about the barroom and in the disco room. Some of these individuals could have been in view of the bartender, but the witness does not know if they were or if the bartenders in fact saw anything improper.
Mr. Junious again was at the bar on May 16, 1982. At that time he observed a black male, subsequently identified to him as Luke Simmons, tending bar. Luke Simmons is Willie Lee Simmons, Jr., son of the licensee and Respondent Willie Lee Simmons. On this occasion, Officer Junious did not observe any marijuana being smoked, but he did observe Luke Simmons make sales of small manila envelopes to patrons at the bar. Junious could not hear the conversations regarding the sales and does not know what was in the envelopes sold to other people. However, somewhat later that day, he went over to Luke and asked Luke for a "nickel bag." In return, he was given a small manila envelope, folded and sealed at both ends, for which he paid $5. This bag closely resembled the bags he saw Luke Simmons sell to others. Junious did not look into the bag while on the premises, but it was subsequently turned over to the evidence custodian of the agency and thereafter properly identified as marijuana.
Junious went back to the Palatka Blue Diamond on May 18, 1982, and again Luke Simmons was tending bar. Junious approached him and engaged him in general conversation. Again this evening, he saw several persons smoking what appeared to be hand-rolled marijuana cigarettes, and the smell of marijuana was prevalent both in the bar and in the disco room. Again, as in previous occasions, the individuals smoking these hand-rolled cigarettes were in plain view of the bartender had he looked, but Junious did not see or hear Luke Simmons attempt to stop any of this conduct. At approximately 9:30 that evening, Junious again approached Luke Simmons and asked for a "nickel bag" for which he paid Luke the sum of $5. In return, he got a similar manila envelope as on the previous occasion which was subsequently determined by the Florida Department of Law Enforcement crime lab in Jacksonville to contain marijuana.
It was not until August 13, 1982, that Officer Junious went back to the Palatka Blue Diamond. When he entered on this occasion, he sat at the bar and ordered a beer. The bartender this time was a black female subsequently identified as Linda Simmons, who is not related to either Respondent. On this occasion, Linda Simmons was playing a card game which the witness called "Black Jack" with a black male at the bar. They appeared to be betting $1 per hand. Junious asked Linda if he could join the game and himself played two hands during which he bet on each hand and lost both times for a total of $2. Later that evening, he saw another black male subsequently identified as Rudy Swindler selling small manila envelopes similar to those he had purchased earlier in the year. He observed Linda in a conversation with Rudy and heard her try to convince him to give her three marijuana cigarettes. Rudy refused to do so, but offered to sell her a nickel bag. She did not offer to buy. Throughout this entire transaction between Swindler and Linda Simmons, at no time did Linda Simmons, acting in the capacity of an employee of the Respondent, make any effort to prevent Swindler from selling what both recognized as marijuana.
Junious went back to the bar on August 26, 1982. When he entered this time, he immediately saw a black female identified as Marian MacRae and otherwise known as "Mulu," selling the similar type of manila envelope. Junious personally observed Mulu sell at least three while in the disco, but because of that location it is possible that the bartender, Linda Simmons, might not have seen her engaged in this type of conduct. This evening, Junious smelled what to him was marijuana pervading the establishment, but he cannot conclude that he actually saw anyone else smoking, selling, or in any way using that substance.
When Officer Junious went into the bar again on September 3, 1982, he observed that the odor of marijuana was very heavy. Linda was the bartender along with Leroy Lane, and Junious saw people sitting at the bar smoking, as
well as in other areas of the premises. The bartenders were between 4 and 6 feet away from people who were smoking. These cigarettes, smoked by these people sitting at the bar, were small, apparently hand-rolled, and twisted at the end; and Junious's training leads him to conclude that these cigarettes are usually marijuana. Another black female whose name is unknown came in and started tending bar. After this individual became the bartender, Officer Junious noticed an unidentified black male standing at the bar, selling the manila envelopes. This individual was close enough to Junious (directly opposite him) so that Junious could see what was going on. On this evening, he saw this individual make at least three sales of manila envelopes which he took from a cloth bag with a drawstrng. On this same date, there were at least five people selling these manila envelopes, including Marian MacRae, in the bar.
Junious came back to the Palatka Blue Diamond on September 23, 1982. On this occasion, he did not observe anyone selling the manila envelopes, but he did see people sitting in the bar smoking what appeared to be, and smelled like marijuana. Linda Simmons and Leroy Lane were the bartenders that night, but it is quite possible that because of the fact that the smokers were in the disco, which was not readily observable from the bar, both Lane and Simmons might not have seen the smoking. However, in Junious's opinion, the smell of marijuana was so prevalent that it would have been difficult for them not to notice it.
Junious again returned to the bar on September 24, 1982. As he walked up to the bar door from the outside, he saw a barbecue grill and a black male identified as "Short Man" tending the barbecue. Junious saw Short Man, otherwise identified as "Dunnell," selling the manila envelopes openly while working at the barbecue and while Junious was standing there talking to him. In fact, Junious himself bought a "nickel bag" from Dunnell, paying the $5. This bag was subsequently identified as containing marijuana. The barbecue was approximately 15 feet from the front door at the time that the sale was made.
After leaving Dunnell, Junious went to his car and placed the manila envelope he had just bought inside. Then he went back to the Palatka Blue Diamond and, when he entered, he saw Marian MacRae again selling the manila envelopes both inside and outside the bar. While inside, she spent the majority of the time in the disco; and Junious later saw her seated with some other individuals smoking what appeared to be, and smelled like, marijuana. Junious noticed this when he passed her and went to sit at the next table to her, asking to buy from her a nickel bag. When he did this, she opened a black purse from which she took a small manila envelope, and he paid her the sum of $5. This envelope was subsequently identified as containing marijuana.
When he came back into the bar after having put that manila envelope in the trunk of his car, he stood at the west end of the bar, from which he could see what was going on in the disco. He saw a black male, subsequently identified as "Quiller Elkins," shooting pool. This individual had a blue cloth bag with a drawstring in his pants pocket. When individuals would come up to him, he would take out the bag and make sales of small manila envelopes from it. Junious personally observed three of these sales being made before he went up to Elkins and commented on his pool skills. He also asked Elkins for a nickel bag, which he subsequently bought from Elkins for $5. This entire transaction was openly conducted, and Linda and Leroy were tending bar at the time. Because of the location of the pool table, he cannot be sure that this sale was observed.
On October 15, 1982, Officer Junious went back to the Palatka Blue Diamond and found Linda Simmons and Leroy Lane again bartending. On this occasion, he observed the smoking by various people of what appeared to be, and
smelled to be, marijuana, but saw no sales. The smokers were walking around inside and outside the bar, and others were inside the disco area. On no occasion did he see or hear the bartenders make any attempt to stop the patrons from smoking these cigarettes.
When Junious went back to the Palatka Blue Diamond on October 22, 1982, Linda Simmons and Leroy Lane were again tending bar. On this occasion, Juniors did not see any sales of manila envelopes, but he saw people smoking what appeared to be, and smelled to be, marijuana; and again, as on previous occasions, in his opinion, the bartenders could see them smoking, but made no effort to stop them.
His last visit to the Palatka Blue Diamond was on October 30, 1982, when again Linda Simmons and Leroy Lane were tending bar. On this occasion, he saw patrons smoking, but saw no sales. Again, as on previous occasions, he recognized the smell of the burning substance and the appearance of the cigarettes being smoked was that of the hand-rolled marijuana cigarette. On this occasion, while the bartenders could have seen what was going on, he does not know if, in fact, they did. In any case, no one in authority at the bar said anything about the smoking to any of the patrons.
None of the cigarettes observed being smoked by Officer Junious nor the smoke, which he identified as marijuana smoke, was analyzed. However, the degree of expertise evidenced by Officer Junious, based on his experience and training, is sufficient to tip the evidentiary scale toward a finding that those hand-rolled cigarettes, which to him appeared to be marijuana cigarettes and to him smelled like marijuana cigarettes, were in fact marijuana cigarettes; and this finding is hereby made.
With regard to the purchase from Quiller Elkins on September 24, 1982, Officer Junious does not know if anyone working for the Simmonses at that time saw him make that purchase or, even if they had seen the purchase made, that they would know what the purchase was. There is no evidence to establish that, in any case, Quiller Elkins was an employee of the Respondents.
With regard to the purchase outside the establishment from the barbecue cook, Short Man, again Junious does not know if anyone in authority from inside the bar saw the sale being made or for that matter, if they had seen it, would know what was in the envelope.
There is no evidence that Marian MacRae (Mulu) was an employee, and Officer Junious himself does not know whether she was or not. However, on the several occasions he was there, he never saw her tending bar or doing any other work there. He also cannot say that any employee of the establishment saw him make the buy from Mulu on August 26, at least. He also cannot state with any degree of certainty whether any of the employees saw him make the purchase from Rudy with regard to that purchase. This individual does not deny using marijuana with Officer Junious. While he does not recall the exact date, he states that Junious asked him if he, Rudy, knew where he could get any marijuana and he, Rudy, got it for him. They smoked it together on two separate occasions in Rudy's car. While Swindler's recitation that he smoked with Junious is somewhat suspect because of several inconsistencies, there is little doubt that he sold either directly or as an intermediary. In fact, Junious indicates Rudy was a connection with whom he, Junious, palled around while in Palatka on the investigation. He used Rudy to introduce him around in the neighborhood.
Willie Lee Simmons, Sr., one of the Respondents and a longtime resident of Palatka, Florida, has been a co-owner of the Palatka Blue Diamond since 1970 or 1971, and he has had a state beverage license since that time. Though he is one of the owners of the establishment, he works there only on Sunday afternoons to tend bar, working from 5:30 in the evening until midnight for the last 7 or 8 years. During all this time, no one has ever approached him to buy marijuana; he does not smoke it himself; nor does he have any familiarity with it. He has seen people smoking there, but was under the impression that what was being smoked were cigarettes. He is in the migrant labor business, as well as a part-owner of the bar, and he recognizes many of his bar patrons as his employees in the field. These migrant workers, he says, often smoke a type of tobacco called "Bugle" tobacco, which they hand-roll into cigarettes. He feels these hand-rolled tobacco cigarettes could well be confused with marijuana cigarettes.
Mr. Simmons contends he has a completely clean record in Putnam County and with the Division of Alcoholic Beverages and Tobacco. If he had had any knowledge that marijuana cigarettes were being smoked in his bar, he would have stopped it immediately, but he has never been given any indication that marijuana was a problem in his establishment. The police, who have been in his bar on many occasions, have never mentioned to him the smell of marijuana, nor have there ever been, to his knowledge, any marijuana arrests or searches conducted in his establishment prior to those set out in the Notice to Show Cause.
Johnny Lee Simmons, the son of Willie Lee Simmons, is also a part- owner of the Palatka Blue Diamond. He works on Sundays during the day before his father comes on duty at night. He knows what marijuana is and has seen other people smoke it. He believes he could identify the smell of marijuana smoke. He admits that his patrons smoke in the bar. In fact, the bar sells cigarettes and cigars, as well as "Bugle" tobacco, a cheap, low-grade loose tobacco referred to by the other Mr. Simmons. On several occasions, he has stopped the smoking of what he thought was marijuana in the bar and found out that it was Bugle tobacco. When he does catch someone smoking marijuana, he immediately puts them out of the bar and, in fact, Mulu has been put out several times for trying to sell marijuana in the premises. To counter the threat of marijuana transfer, Leroy Lane was hired to keep out minors and drugs, and in this witness's opinion, has done a pretty good job of it. Mr. Simmons feels he has done a good job in exercising control over the place to keep narcotics out, but he admits that neither he nor anyone else is perfect. Sometimes he does not get it all. He contends he has contacted the police on several occasions to get help with drug traffic and gambling.
He used to sell cards in the bar and has seen card games conducted there. However, when he reread the manual furnished by the Petitioner, which indicated that gambling is not appropriate or permitted, he immediately got rid of the cards; no longer sells them; and no longer permits card playing in the premises. His sister, the lady allegedly involved in the gambling transaction, is not a gambler. In his opinion, the card games she was in were probably friendly games engaged in to pass the time during the slack periods. To his recollection, the only gambling ever conducted in the Palatka Blue Diamond was carried on by old retired men who spent a lot of time there and who passed the time playing cards. These individuals got angry with him, he contends, when he stopped it
The denial of the Simmonses that marijuana is frequently utilized in the Palatka Blue Diamond was supported by the testimony of John J. Melton, a
Deputy sheriff with the Putnam County Sheriff's Office, who, himself, is familiar with both the appearance and the smell of marijuana and has made arrests for the possession of marijuana in the past. Officer Melton goes into the Palatka Blue Diamond frequently--three to four times a week--and has done so both on and off duty for the past three years. If he goes in while on duty, he is there for between 15 and 20 minutes; if off duty, for between three and four hours. In any case, he has never seen anyone selling the small manila envelopes when he was in there, nor has he ever seen any card playing or gambling going on. If he were to see anyone involved in any unlawful activity, he would arrest them if in uniform and on duty. If not, he would notify the manager. He does not believe that anyone would smoke in front of anyone who they knew to be a police officer. Palatka is a small town and, by his own admission, he and other police officers are well known to the general public both when in and out of uniform. Consequently, his testimony establishes only that no illegal activity went on while he was in there.
These sentiments were echoed by Abraham Smith, a retired U.S. Customs agent who has a working familiarity with marijuana, its appearance, and its smell from his 32 years in Customs work. Since he moved to Palatka in May of 1982, he has been in the Palatka Blue Diamond three to four times a week for an hour or two at the time. He is familiar with the types of small manila envelopes used for the sale of small amounts of marijuana and has seen them many times, but never in the Palatka Blue Diamond. He has never smelled marijuana nor seen marijuana in that establishment.
Harold Lightfoot, the salesman for the Eli Witt Tobacco Company who has been selling to the Palatka Blue Diamond for 15 years, including to the prior ownership, comes in once a week in the early afternoon. He also knows what marijuana is and can recognize the appearance and smell, but has never smelled the odor in the Palatka Blue Diamond nor ever seen any sales of manila envelopes while there.
Another frequent patron is James Williams, Jr., a retired Army noncommissioned officer who has patronized the Palatka Blue Diamond daily since his retirement from the Army in June 1980. He usually goes in for several hours in midday and then for several hours in the evening. He is familiar with the appearance and smell of marijuana because of the training he received in the military and is also familiar with the small manila envelopes used in marijuana sales. To his knowledge, he has never smelled marijuana smoke in the Palatka Blue Diamond nor has he ever seen sales of small manila envelopes.
Leroy Lane, the lead bartender at the Palatka Blue Diamond for the past six to nine years, lives upstairs from the bar and tends bar from early evening to closing. He has seen several marijuana cigarettes outside the bar. He is familiar with its appearance and its smell, and he has seen people in the bar start to smoke marijuana. When he observes it, he puts them out and, if they refuse to leave, calls the police. For the past three to four years, there have been signs on the wall prohibiting the use or sale of marijuana on the premises, placed there at the direction of the owners and, also at their direction, he patrols the bathrooms.
Mr. Lane knows of Marian MacRae (Mulu) by reputation. At first he stated he would not know if he would recognize her if he saw her, but later indicated that she is outside the bar frequently. Because of her reputation, when she comes in the bar, he asks her to leave. He denies knowing Short Man and several other regular patrons by name because he does not ask customers
their names nor does he ask them the stories of their lives. His credibility is not significant.
Queen Esther Simmons, the wife of Johnny Simmons for 16 years, is also a bartender in the Palatka Blue Diamond. She swaps shifts with Linda Simmons, the sister of Johnny and the daughter of Willie Simmons. Queen Esther contends she has never seen marijuana nor has she seen any transfers of the envelopes in the bar. She claims she does not know what a marijuana cigarette is nor has anyone ever told her what they look like so she could keep them out. It is Leroy Lane's job to do that. However, never having seen nor smelled marijuana, if she smells what she thinks is marijuana, she calls out, "If anyone here is smoking marijuana, leave or I'll call the police." Queen Esther Simmons' credibility is totally lacking, and her testimony has no probative value whatsoever.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
Section 561.29(1)(a), Florida Statutes, as allegedly violated in Allegations 3 through 14, 16 and 17 of the Notice to Show Cause, permits the revocation or suspension of a licensee's license under the Beverage Law when it is determined that there is violation by the licensee or his agents, servants, or employees on the licensed premises of any of the laws of the State of Florida or the United States.
The unimpeached testimony of Officer Junious clearly establishes that the Respondents, through Leroy Lane and Queen Esther Simmons, employees of the establishment, maintained the licensed premises as a place resorted to by persons using marijuana on May 12, 1982, as alleged in Allegation 3 of the Notice to Show Cause. Marijuana is a controlled substance under Florida law, and it is unlawful for any person to keep or maintain any place which is resorted to by persons using controlled substances [Section 893.13(2)(a)5, Florida Statutes].
The same rationale may be used to conclude that there was a violation of the same statute on May 16, 1982, where the evidence shows that Officer Junious purchased marijuana from Luke Simmons son of Willie Lee Simmons, Sr., and observed Luke making sales to others as outlined in allegation 5. This also happened on May 18, as alleged in Paragraph 6 of the Notice to Show Cause.
The evidence is also clear that the repeated sales of what Officer Junious recognized as marijuana and the use of marijuana on September 3 is sufficient to establish a violation, as alleged in Allegation 8 of the Notice to Show Cause. In addition, the sale of marijuana from Short Man (Dunnell Johnson) outside the bar, the sales by Mulu and Junious's purchase from Quiller Elkins, all of which took place in and around the bar on September 24, 1982, adequately establish the violation alleged in Allegation 10 of the Notice to Show Cause.
With regard to the allegations relating to May 14, August 26, September 23, October 15, October 22 and October 30, 1982, the Petitioner's primary witness, Officer Junious, while testifying that he observed what to him appeared to be marijuana cigarettes and smelled to him what appeared to be the odor of marijuana cigarettes, did not procure and have analyzed any of the butts. However, as was found, Junious's experience with marijuana is sufficient for him to recognize both the smell and appearance of marijuana and this is not
offset by the evidence by Respondent that the migrant laborers who live above and patronize the bar generally smoke a type of low-grade tobacco which is hand- rolled into cigarettes which are quite similar to marijuana cigarettes in appearance. More significant is Junious's testimony that he saw no sales on those dates and his admission that the bartenders might not have seen the smoking on those dates. In fact, both Lane and Queen Esther Simmons denied ever seeing or smelling marijuana smoke on the licensed premises. It is incumbent on Petitioner to establish all elements of the violations and based on this void, it must be concluded that there is insufficient evidence to establish the allegations as to Allegations 4, 7, 9, 11, 12 and 13 of the Notice to Show Cause.
Taken together, however, the evidence does establish that on diverse occasions between May 12, 1982, and October 30, 1982, Respondents did keep a public nuisance on the licensed premises by maintaining it as a place visited by persons for the unlawful use or sale of a controlled substance in violation of Section 823.10, Florida Statutes. Maintaining a nuisance on the licensed premises is also grounds for discipline of the license under Section 561.29(1)(c), Florida Statutes.
The evidence cited above in support of a conclusion that Section 561.29(1)(a), Florida Statutes, was violated by the maintaining of a place by Respondents resorted to by persons using controlled substances also supports, as to those dates specifically cited, a violation of Allegation 2, as well. It does not, however, support a violation of Allegation 2 in relationship to those dates where the conclusion was that the evidence was insufficient to support a finding of violation.
In Allegation 14, Respondents are alleged to have violated Section 849.01, Florida Statutes, through Linda Simmons' use of the premises for the purpose of gambling. Counsel made much of the fact that the card game which Junious originally called "Black Jack," when described as to how it was played, there is little resemblance to the classical game known as Black Jack. Junious, on cross-examination, said he was not sure of the name of the game, but he did describe how it was played, and he also described what he observed regarding the gambling going on. Whatever it is called, if the game looks like gambling; sounds like gambling; is played like gambling; and, as a result of the parties' wins or losses, results in a transfer of funds to the winner from the loser; then it is gambling, regardless of the name by which it is called. Therefore, the testimony of Officer Junious as to his observations of Ms. Simmons playing cards for money with other patrons and his own loss to her of $2 as a result of two hands which he himself played with her, constitutes a violation of the cited section, as well as a violation of Section 849.08, Florida Statutes. Both violations of Section 849.08 are encompassed within the language of Section 561.29, Florida Statutes, which permits discipline of a license for stated violations.
Once the misconduct has been established, in order to discipline Respondents' license, the Petitioner must establish that Respondents were responsible for the violations either because of intentional wrongdoing or knowing condonation of the misconduct. In the alternative, Petitioner must show that Respondents failed to exercise due diligence in supervising and maintaining surveillance over the licensed premises [Pauline v. Lee, 147 So.2d 359 (Fla. ]d DCA 1962); G & B of Jacksonville, Inc. v. State, 371 So.2d 137 (Fla. 1st DCA 1979)]. In that connection, a licensee may not remove itself from the responsibility of the actions of its agents or employees because of the absence from the premises for a failure to be advised of the activity on the premises.
Here, however, there is little doubt that Respondents knew, or should have known, that misconduct of the type alleged here was going on. While Willie Lee Simmons, Sr., and Johnny Simmons may not themselves have participated in, or been aware of, the sale or use of narcotics on the premises, Willie Lee Simmons, Jr., did know and did participate; and there is little doubt that Queen Esther Simmons and Linda Simmons, close relatives of the Respondent and active employees of the Respondents who spent considerable time in the area, did know.
It has been shown the allegations proven were committed by the licensees' employees; and in a case of this nature, simple negligence is sufficient for disciplinary action. It is not necessary that the owner have actual knowledge of the misconduct. If the misconduct is nonetheless made possible by the licensee's failure to supervise both the premises and his employees in a diligent manner, then the owner may be held responsible. In the instant case, the owners worked on the premises only on Sundays. It is inconceivable that at least one, Johnny Lee Simmons, was not aware of the activities in the premises through conversations with this wife, Queen Esther. Consequently, it can reasonably be concluded that the licensees were on notice of the potential for drug activity, and it is equally as clear that their feeble efforts to prevent it, if any, were totally insufficient.
A recent decision of the First District Court of Appeal has held that the licensee is not an absolute insurer against violations of the law on his premises even when committed by or through his employees and that an isolated violation is not a basis for finding the existence of a nuisance or a violation of the Beverage Law [Rex Allen Jones, t/a Happy Hour v. State of Florida, Division of Alcoholic Beverages and Tobacco, Case No. AU-132, Opinion filed March 30, 1984]. Here, the evidence, without question, establishes far more than an isolated violation, but instead an unchecked and unbridled series of violations against which Respondents took little, if any, action. In light of the circumstances, there can be little doubt that Respondents are culpable.
The Petitioner has submitted a Proposed Recommended Order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted 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.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED THAT:
Respondents' alcoholic beverage license No. 64-00029 be revoked. RECOMMENDED this 19th day of June 1984, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 19th day of June 1984.
COPIES FURNISHED:
Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Angus W. Harriett, Esquire
314 St. Johns Avenue Palatka, Florida 32077
Mr. Gary R. Rutledge Secretary
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Howard M. Rasmussen Director, Division of
Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jun. 19, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 19, 1984 | Recommended Order | Evidence that employees kept licensed premises as place where drugs were used and allowed unlawful gambling is enough to support revocation of license. |
