STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-3353

) BERNARD JOHNSON d/b/a LITTLE ) PARADISE, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard in Tampa, Florida, on October 11, 1984, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on the Administrative Complaint filed by the Department of Business Regulation alleging that an employee of the Respondent had sold a controlled substance on premises licensed by the Petitioner, contrary to Chapters 893 and 561, Florida Statutes. The Administrative Complaint further alleges that the Respondent knew or should have known of the activities of his employee and that the Respondent was in violation of Section 561.29, Florida Statutes. The Respondent filed a timely request for an administrative hearing. The parties were represented by the following counsel:

For Petitioner: Louisa E. Hargrett, Esquire

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

For Respondent: Charles R. Wilson, Esquire

300 North Franklin Street Tampa, Florida 33602

ISSUES

The issues are whether the Respondent possessed, sold, or aided and abetted in the sale of controlled substances by his employee Pamela Martin on the licensed premises and whether the licensed premises were a public nuisance contrary to Section 561.29(1), Florida Statutes.

FINDINGS OF FACT

1. At all times relevant to the charges in this case Bernard Jordan, the Respondent, was holder of an alcoholic beverage license number 39-597, Series 2- COP, issued to the premises known as Little Paradise, located at 3602-29th Street, Tampa, Hillsborough County, Florida.

2. The licensed premises are located on the corner of 29th Street and 29th Avenue in Tampa, Florida. On the other corners of the intersection are located a dentist's office, a physician's office, a building containing a real estate office and the office of three attorneys. Further down the street is located a laundromat and various other businesses. A persistent drug problem existed in this vicinity on 29th Street.

   
   

3. Alphaeus Johnson is a confidential informant who works with the City of Tampa Police Department and for George Miller, an investigator with the Division of Alcoholic Beverages and Tobacco. Mr. Johnson had worked for Miller for over five years.

   
   

4. As an undercover informant, A1phaeus Johnson entered the licensed premises. Johnson was searched by Investigator Miller and/or Detective Ron Harrison thoroughly prior to each occasion upon which he entered the licensed premises. These searches revealed that Johnson had no money or narcotics on his person at the time he was searched. After search, on each occasion, Johnson was given funds by the officers with which to purchase controlled substances. The officers kept Johnson in view from the time he left him until the time he entered the establishment and from the time he left the establishment until the time he returned to their location. The informant was paid a flat rate per day for assisting in the investigations and his compensation was not dependent upon whether he made any narcotic purchases.

   
   

5. On February 15, 21, 22, and March 3, 22, 23, 1983, Johnson purchased quantities of cocaine from Pamela Martin inside the licensed premises. On February 15 and 21, 1983, Johnson purchased a quantity of marijuana from a male customer inside the licensed premises upon the referral of Pamela Martin.

   
   

6. David Hauser, a detective with the University of South Florida, entered the licensed premises during the month of March, 1983, as part of an undercover investigation. Hauser asked Jordan if Jordan would sell him cocaine or whether he would have to purchase it from Pam. Jordan told Hauser he would have to get the cocaine from Pam. When Hauser approached Pam, she responded that she did not sell drugs. No sale ever occurred between Hauser and Pam.

   
   

7. Pamela Martin had worked for the Respondent Bernard Jordan since 1975. Jordan had hired Martin after checking her references to include that of Martin's mother, with whom he was personally acquainted. At the time Martin was hired she had not ever been charged with a crime. At that time she did not use drugs. Martin had worked for Jordan off and on at various of Jordan's licensed premises since 1975. Jordan stressed with Martin and reemphasized to her at various times during her employment that any drug involvement by her on the licensed premises would result in her immediate discharge.

   
   

8. Jordan also stressed with Martin and his other employees that any use of controlled substances by customers on the licensed premises was prohibited and that anyone using controlled substances be required to leave.

   
   

9. At the time in question, the licensed premises were divided roughly in two by an iron grill. Neither Martin or any other employee had access to the locked area behind the iron grill which had been used as a disco. Use of the licensed premises was restricted to the front part of the premises which contained a bar, pool table, tables for customers and rest rooms. The disco had not been used for several months before the time in question.

10. April 6, 1983, law enforcement officers executed a search warrant on the licensed premises. At the time the warrant was served, Martin was on the premises but did not possess a key or have access to the area behind the iron grill. The investigators found a blue plastic bowl in the mens room containing residue, a marijuana cigarette in Pamela Martin's purse, a partially smoked cigarette on the floor behind the bar, and a black zipper bag containing marijuana residue in an unlocked cabinet behind the locked gate. The black zipper bag was found after the Respondent Bernard Jordan was called to the licensed premises and unlocked the area.

    
    

11. Marijuana and cocaine are controlled substances under the laws of the State of Florida.

    
    

12. Jordan terminated the employment of Pamela Martin on April 6, 1983. Subsequently Martin pleaded guilty to sale and delivery of cocaine and was placed on probation.

    
    

13. After being asked by Hauser whether Hauser could purchase cocaine from him or whether Hauser should wait for Pam, Jordan hired Alton Silas to remain at the licensed premises all of the day following Hauser's approach to Jordan. Silas was to watch Martin and report to Jordan any illegal activities which he observed. Silas saw no illegal acts while he was on the premises.

    
    

14. Jordan operates six additional licensed premises in the city of Tampa. Jordan has strict overall rules concerning the use of controlled substances on all of his licensed premises. Jordan is in each of his licensed premises daily, generally on more than one occasion. Most of Jordan's employees have worked for him for long periods and some are members of his family. Jordan's policy is to discharge any employee involved with drugs or who permits the use of drugs on the premises. Jordan has discharged three employees over the last three years for failure to follow his policies concerning drugs. The informant Johnson testified that Jordan was never in the bar during any of his visits to the licensed premises.

    
    

15. The licensed premises are the original licensed premises open by Jordan's family in the Tampa area. Many of the customers on the licensed premises are businessmen who work in the neighborhood. A dentist whose office is located near the licensed premises testified that he routinely visited the Little Paradise between 10:00 A.M. and 1:00 or 2:00 P.M. remaining on the premises for approximately twenty minutes. He never observed any drug use or drug sale on the premises.

    
    

16. Jordan has never had any disciplinary action taken against any of his licensed premises.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and this proceeding. This Recommended Order is entered pursuant to the provisions of Chapter 120, Florida Statutes.

    
    

18. The Respondent, Bernard Jordan, is alleged to have violated Section 561.29, Florida Statutes, which provides in pertinent part:

    
    

    1. The Division is given full power and authority to revoke or suspend the license of any person holding a license under the

       beverage law, when it is determined or found by the Division upon sufficient cause appearing of:

       1. Violation by the licensee or his or its agents, officers, servants, or employees,

          on the licensed premises, . . . of any of the laws of this State or of the United States. . . .

          (c) Maintaining a nuisance on the licensed premises.

          
          

19. The Administrative Complaint references ten allegations of alleged violation of Section 561.29(1)(a), Florida Statutes. The Administrative Complaint subsequently alleges that the acts occurring between February 18, 1983, through April 6, 1983, constitute maintaining a nuisance on the licensed premises through the sale and delivery of controlled substances contrary to Section 561.29, Section 823.01 and 823.10, Florida Statutes.

    
    

20. Martin plead guilty to the sales of the controlled substances. It is therefore concluded that the sales as testified to by Johnson did occur. However, Johnson's testimony is that the Respondent Jordan was never on the premises when any of the sales took place. This raises the issue of whether the Respondent exercised due diligence in managing the premises. The evidence was that the Respondent was on the premises almost daily at various times during the day and exercised close supervision over his employees. The Respondent presented competent and credible evidence that he maintains high standards for his employees, has a policy of absolutely no drug use on his premises, and a record of no disciplinary actions against his premises and of discharging employees who violate his policies.

    
    

21. Therefore, although Martin violated the law, there is no evidence that the Respondent was negligent in permitting the sales to occur on the premises by his employee contrary to Section 561.29 (1)(a), Florida Statutes and the case law interpreting this provision.

    
    

22. The evidence concerning the controlled substances found on the premises on April 6, indicates no significant quantity of controlled substances were maintained on the premises. According to Johnson and Hauser there were occasions when Martin did not have any cocaine to sell. Analysis of the cocaine purchased by Johnson revealed that it was cut with various substances to extend it. This is inconsistent with one regular source of supply for the drugs.

    
    

23. Therefore, although we have a factual situation in which there are several violations, they were not flagrant, they were committed by one employee in spite of regular inspections and supervision by the licensee, and they occurred over a relatively short time. When the licensee had reason to believe the employee was not adhering to his directions, he had her placed in surveillance which did not reveal a violation. The facts of this case are in the middle ground of the reported cases, and given the other circumstances of the Respondent's otherwise good record it is concluded that the conduct falls short of that required to declare the premises a public nuisance contrary to Section 561.29(1)(c) Florida Statutes.

    
    

24. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

RECOMMENDATION

It is recommended that the charges be dismissed and that no action be taken.

DONE and ORDERED this 29th day of January, 1985, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 29th day of January, 1985.

COPIES FURNISHED:

Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Charles R. Wilson, Esquire

300 North Franklin Street Tampa, Florida 33602

Gary Rutledge, Secretary Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-003353

Orders for Case No: 83-003353