Judges: MARVIN E. CHAVIS
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 21, 1983
Summary: This case concerns the issue of whether the Respondents beverage license should be suspended, revoked or otherwise disciplined for permitting their employees to sell controlled substances on the licensed premises. At the formal hearing the Petitioner called as witnesses Ervin A. Beeper, Michael Ray, Geffry Dean Mathai, Mark Olive, Tony Roper, George W. Miller, Anthony Ziberna, and Richard Horvath. The Respondents called as witnesses Robert Theodore Nelson, Paul Roberts, Charles Hayman, Judy Elli
Summary: This case concerns the issue of whether the Respondents beverage license should be suspended, revoked or otherwise disciplined for permitting their employees to sell controlled substances on the licensed premises. At the formal hearing the Petitioner called as witnesses Ervin A. Beeper, Michael Ray, Geffry Dean Mathai, Mark Olive, Tony Roper, George W. Miller, Anthony Ziberna, and Richard Horvath. The Respondents called as witnesses Robert Theodore Nelson, Paul Roberts, Charles Hayman, Judy Elligretti, and Respondent Conrad F. and Shirley Bouchard. Petitioner offered and had admitted 9 exhibits and the Respondents offered and had admitted into evidence 3 exhibits. Respondent's Exhibit 4 for identification was a written report of a polygraph examination which was offered into evidence and not admitted by the Hearing Officer. Counsel for the Petitioner filed proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions contained in this order, they were considered by the Hearing Officer and rejected as not being supported by the evidence or as unnecessary to the resolution of this cause.Respondent was culpably negligent and allowed illegal drug sales on premises with no manager on duty. Recommend civil fine and suspension of license.
More
STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )
vs. ) CASE NO. 83-3695
) CONRAD F. AND SHIRLEY BOUCHARD, ) d/b/a BRANDON BEVERAGE CENTER, )
Respondent. )
A formal hearing was held in this matter before A Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on December 12, 1983, in Tampa, Florida.
For Petitioner: Harry F.X. Purnell, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
This case concerns the issue of whether the Respondents beverage license should be suspended, revoked or otherwise disciplined for permitting their employees to sell controlled substances on the licensed premises. At the formal hearing the Petitioner called as witnesses Ervin A. Beeper, Michael Ray, Geffry Dean Mathai, Mark Olive, Tony Roper, George W. Miller, Anthony Ziberna, and Richard Horvath. The Respondents called as witnesses Robert Theodore Nelson, Paul Roberts, Charles Hayman, Judy Elligretti, and Respondent Conrad F. and Shirley Bouchard. Petitioner offered and had admitted 9 exhibits and the Respondents offered and had admitted into evidence 3 exhibits. Respondent's Exhibit 4 for identification was a written report of a polygraph examination which was offered into evidence and not admitted by the Hearing Officer.
Counsel for the Petitioner filed proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions contained in this order, they were considered by the
Hearing Officer and rejected as not being supported by the evidence or as unnecessary to the resolution of this cause.
The Respondents, Conrad F. and Shirley Bouchard, are holders of beverage license number 39-790, series number 2APS. This license is issued to the licensed premises, Brandon Beverage Center, located at 118 Margaret Street, Brandon, Florida. The license was obtained by the Respondents by transfer on August 21, 1981.
The licensed premises is a drive-through store which sells beer and wine, milk, bread, and other grocery items.
Conrad F. Bouchard, Sr., is one of the owners and licensees and is also the manager of the store. His regular working hours are from 8:30 or 9:00 A.M. to 4:30 or 5:00 P.M. He occasionally is required to work evenings and weekends. Conrad F. Bouchard, Jr., also known as Butch, is the son of the Respondents and worked nights at the licensed premises.
On April 1, 1982, the Respondent was given a written warning from Beverage Officer George Miller that there had been complaints about sales of alcoholic beverages to minors at the licensed premises.
On October 27, 1982, an employee of Respondent, named Scott Steinberg, was arrested for selling alcoholic beverages to minors. As a result of this, the Division of Alcoholic Beverages by Notice to Show Cause brought formal administrative charges against the Respondents. The charges against the Respondents resulted in a stipulation and settlement with the Respondents agreeing to pay a $300 fine.
On July 22, 1983, Scott Steinberg was arrested for selling alcoholic beverages to minors and formal administrative charges were brought against the Respondents as a result of the alleged sales to minors. These charges are still pending.
On the evening of October 11, 1983, at approximately 9:00 P.M., Detectives Michael Ray and Mark Olive of the Hillsborough County Sheriff's Office, went to the licensed premises to investigate complaints relating to the sale of drugs on the licensed premises. They were accompanied by a confidential informant. Upon arriving at the licensed premises, Butch Bouchard approached the vehicle and the confidential informant asked if he had any marijuana they could purchase. Butch Bouchard responded that he did. Scott Steinberg, another employee working at the licensed premises, approached the vehicle and took $26 from Detective Ray as payment for the marijuana. Butch Bouchard then returned to the vehicle holding a cigarette carton with the top torn off. He handed the carton to the confidential informant who in turn handed it to Detective Ray.
The carton contained a baggie containing approximately five grams of marijuana (cannabis), a controlled substance under Florida Statute 893.13 (1981).
On October 13, 1983, at approximately 9:10 P.M., Detectives Ray and Olive returned to the licensed premises. As they stopped their vehicle inside the drive-through store, Butch Bouchard approached Detective Ray. Ray asked Butch Bouchard if they could purchase some marijuana. Bouchard looked in the backseat of the vehicle and saw the confidential informant and then walked over to the office area. Bouchard then returned with a paper bag which he handed to Detective Ray. Detective Ray handed $25, the agreed price of the marijuana, to
Bouchard. The paper bag contained a clear plastic baggie filled with marijuana. On this particular evening, Butch Bouchard was the only employee on the licensed premises.
In the early evening of October 17, 1983, Detective Ray, accompanied by Detective Tony Roper, drove into the licensed premises. Butch Bouchard approached the vehicle and Detective Ray asked if he could purchase some marijuana. Butch Bouchard then asked Detective Ray to get out of his vehicle and select which bag he wanted. Butch Bouchard had several bags in his hand and asked Detective Ray to look at them. Detective Ray selected one bag and purchased it from Butch Bouchard. The bag contained marijuana.
On October 20, 1983, at approximately 9:00 P.M. Detectives Ray and Roper returned to the licensed premises. Officer Ray purchased a plastic baggie of marijuana from Butch Bouchard for $25.
On November 10, 1983, Detective Roper and Detective Mathai, Hillsborough County Sheriff's Office, went to the licensed premises and asked to buy a bag of marijuana from Butch Bouchard. Butch said he did not have any and asked them to come back later. When the detectives returned the Beverage Center was closed and Butch Bouchard was in the parking lot. Butch came over to the Detectives' car and sold them a plastic baggie of marijuana.
On November 17, 1983, Detectives Geoffry Dean Mathai and John Zdanwic of the Hillsborough County Sheriff's Office, went to the licensed premises. On a prior occasion, Detective Mathai had gone with Detective Tony Roper to the licensed premises and had talked with Butch Bouchard about marijuana. On this evening, Detective Mathai asked Butch Bouchard if he remembered Tony and after a short conversation Mathai asked Butch if he could buy some marijuana. Butch said yes and asked how many bags. Detective Mathai told him they wanted two bags. Butch left the car, went into the office and returned a couple of minutes later with a Benson & Hedges cigarette carton. He handed the carton to Detective Mathai and Detective Mathai and Detective Zdanwic each handed him cash. The two detectives also had ordered a beer each and received the beer and change from Butch Bouchard. The cigarette carton contained two plastic baggies of marijuana.
Detectives Mark Olive and Swann also made a purchase of marijuana at the licensed premises on the evening of November 17, 1983. The two detectives drove into the licensed premises and asked Butch Bouchard if they could purchase a $25 bag of marijuana and asked if he had that much. Butch responded yes and walked to the office area and then came back with a cigarette carton which he handed to Detective Olive. The carton contained a plastic baggie of marijuana. Butch Bouchard was paid $25 for the bag of marijuana. The only employees observed on the licensed premises this night were Butch Bouchard and Scott Steinberg.
On the evening of November 22, 1983, Detective Ray and several other officers went to the licensed premises to serve a search warrant. When they arrived, Detective Ray spoke to Conrad Bouchard and asked if they could purchase some marijuana. Butch answered yes and went over to the area of the cash register and office area. Detective Ray then got out of his car and walked over to the office where he saw Butch Bouchard crouched down and looking at five bags of marijuana. Detective Ray identified himself as a police officer and Butch then grabbed the bags and ran into the bathroom and tried to flush the marijuana down the toilet. Detective Ray caught Butch before he could flush the toilet. After arresting Butch Bouchard, the officers searched Butch's car and found a
pipe and two more plastic baggies of marijuana. When Butch was crouched looking at the bags of marijuana, Scott Steinberg was present in the same area.
On each of the evenings that purchases of controlled substances were made at the licensed premises, no employees other than Butch Bouchard and Scott Steinberg were present at the licensed premises. Neither Butch Bouchard nor Scott Steinberg is a night manager. Both these individuals are merely sales clerks. The only manager for the licensed premises is Conrad F. Bouchard, Sr.
Although the normal working hours for Conrad F. Bouchard, Sr., is 8:30 to 4:30 or 5:00 P.M., he occasionally returns to the licensed premises in the evenings to check on things. Mrs. Bouchard also makes a point of stopping by the licensed premises in the evening. Occasionally, Mr. or Mrs. Bouchard would check on the licensed premises without the employees being aware they were observing.
Mr. and Mrs. Bouchard had no knowledge of the drug transactions which took place on the licensed premises. Shortly after acquiring the licensed premises, Mr. Bouchard fired several of the previous employees for selling alcoholic beverages to minors. Until the arrest of Butch Bouchard and Scott Steinberg for drug violations, there was no evidence that any disciplinary action was taken by the licensee against these two individuals for sales to minors on two occasions.
Mr. Bouchard had a clear policy against selling alcoholic beverages to minors. He constantly instructed employees to check identification. There was no evidence of instructions or warnings having been given relating to other types of illegal activity.
During July and August, 1983, Mr. and Mrs. Bouchard took separate vacations in order for one of them to be available to oversee the operation at the licensed premises.
The licensed premises enjoys a good reputation in the community as a clean, well-run establishment. The Respondents individually enjoy an excellent reputation in the community as honest, hardworking people.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding.
Section 562.29(1)(a), Florida Statutes (1981), empowers the Division of Alcoholic Beverages and Tobacco to revoke or suspend an alcoholic beverage license if it finds that the licensee or his agents, servants, or employees are permitting another on the licensed premises to violate any of the laws of this state or the United States. Section 561.01(11) defines the "licensed premises" to include the building area where alcoholic beverages are served and the area embraced within the sketch of the premises attached to the license application. Based upon the evidence, the licensed premises in the instant case is limited to the lounge itself.
A license may also be disciplined by the Division if the licensee is found guilty of "maintaining a nuisance on the licensed premises." Section 561.29(1)(c), Florida Statutes (1981). Section 823.10 of the Florida Statutes declares a place or building where controlled substances are illegally kept, sold, or used to be a nuisance.
Florida Statute 893.13(2)(a)(5) makes it unlawful for any person:
To keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or
which is used for keeping or selling them in violation of this chapter.
A violation of this section also constitutes a violation of the Beverage Law through Section 561.29(1)(c), Florida Statutes.
Cannabis is a controlled substance and it is a violation of state law to sell, use, deliver, or possess it. Section 893.13, Florida Statutes (1981).
Negotiating a sale of a controlled substance or acting as a go-between in arranging such a drug transaction is a violation of Florida law and will subject a person committing such acts to a conviction under the criminal laws of Florida. Nadawski v. State, 371 So.2d 554 (Fla. 2d DCA 1979), State v. Hubbard, 328 So.2d 465 (Fla. 2d DCA 1976), State v. Dent, 322 So.2d 543 (Fla. 1975). Florida Statute Section 776.011.
In order to discipline Respondents' license, the Division of Alcoholic Beverages and Tobacco must prove the Respondent was culpably responsible for the violations alleged; that he is guilty either of intentional wrongdoing, or of condoning wrongdoing or failing to exercise due diligence in supervising and maintaining surveillance over the licensed premises. See, e.g., Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980); Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962); Golden Dolphin II v. State of Florida, Division of Alcoholic Beverages and Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981); G. & B. of Jacksonville, Inc. v. State, 371 So.2d 137 (Fla. 1st DCA 1979).
Although a single isolated incident may not serve as a basis for disciplining a beverage license where the evidence shows a persistent or recurring activity, the fact finder may infer the licensee had knowledge. Golden Dolphin II v. State, 371 So.2d 139 (Fla. 1st DCA 1979) appeal dismissed, 379 So.2d 205 (Fla. 1979), Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962). A licensee may not remove itself from responsibility by not being present on the premises or by claiming ignorance of the repeated violations. Pauline v. Lee, supra; G. & B. of Jacksonville, Inc. v. State, 371 So.2d 137 (Fla. 1st DCA 1979).
The evidence clearly establishes the sale of controlled substances by employees of the Respondents on six separate evenings in October and November, 1983. Each of the seven (7) separate sales was negotiated and discussed on the licensed premises while the seller, Butch Bouchard was on duty as a sales clerk. All but one of the deliveries of controlled substances occurred on the licensed premises. One delivery took place in the parking lot of the licensed premises after closing, but the sale was negotiated on the licensed premises during business hours. The sole issue left to be resolved is whether the Respondents are culpably responsible for the sales that occurred.
The evidence established that the Respondents had no knowledge of the drug transactions and in no way condoned the illegal activity. The evidence does, however, establish negligence on the part of the Respondents.
Each of the sales that took place occurred at night when the manager, Conrad Bouchard, Sr., and his wife were not present. The only employees present when the sales occurred were Butch Bouchard, the son of the Respondents and Scott Steinberg. Butch Bouchard is a full-time college student and Scott Steinberg is 17 years old. Neither of them was given responsibility as manager, but were both mere sales clerks. This means that from the time Mr. Bouchard left the licensed premises at 4:30 or 5:00 to closing time at 10:00 P.M. there was no person in charge or responsible for the supervision of the licensed premises. In April, 1982, October, 1982, and July, 1983, the Respondent encountered problems with employees selling alcoholic beverages to minors. The sales in October and July involved Scott Steinberg and there was no evidence any disciplinary action was taken by the employer. Not until the arrests for the drug sales which are the subject of this proceeding was Scott Steinberg terminated.
The prior problems should clearly have placed the Respondents on notice that there was inadequate supervision and control at the licensed premises when Mr. Bouchard was absent. The lack of adequate supervision and the failure to properly monitor the licensed premises at night created an atmosphere that led Butch Bouchard and Scott Steinberg to believe they could sell drugs at will to customers entering the licensed premises.
These facts show recurring and persistent activity. The failure of the Respondents to properly monitor and supervise their premises created a haven for persons to approach patrons and strike illegal drug deals on a frequent and regular basis. The offers to sell illegal drugs and the discussions leading to the ultimate transfers of illegal drugs are analogous to the solicitations and offers to engage in sexual intercourse in Pauline v. Lee, supra. There, the Court stated:
The persistence and practiced manner with which the solicitations described by the state's witnesses were made is sufficient to permit a factual
inference leading to the conclusion that such violations of law were either fostered, condoned or negligently overlooked by the licensee, notwithstanding his absence
from the premises on the dates in question.
Pauline v. Lee, supra at 364. Applying that same logic to the instant case, the Respondents should be found guilty of the violations alleged in Counts 1, 2, 3, 4, 5, 6, 7 and 9. These constitute a violation of Florida Statute 561.29(1)(a). The evidence failed to establish the licensed premises is a nuisance as alleged in Count 9 of the Notice to Show Cause.
Penalty: License revocation is an extreme and drastic penalty which should be applied only in the most flagrant cases. Taylor v. State Beverage Department, 194 So.2d 321 (Fla. 2d DCA 1967). Here Respondents are guilty of negligence, not intentional wrongdoing. The licensees were not aware of the illegal drug activity and were to a degree probably victims of misplaced trust in their own son. Under the circumstances an appropriate penalty is a 30-day suspension and a $1400 fine ($200 per transaction)
Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED:
That a final order be entered finding the Respondents guilty of the violations as set forth above and imposing a civil penalty of $1400 and a suspension of the beverage license for a period of 30 days.
DONE and ORDERED this 21st day of December, 1983, in Tallahassee, Florida.
MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1983.
Howard M. Rasmussen, Director Division of Alcoholic Beverages
Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
