STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-0005

)

RICHARD F. NATTEAL, d/b/a )

EARTH SHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on April 3, 1984, at Ocala, Florida.

APPEARANCES

For Petitioner: Thomas L. Barnhart, Esquire

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

For Respondent: Richard L. Natteal, pro se

Route 3, Box 48

Crystal River, Florida 32629

By Notice to Show Cause forwarded to Respondent November 30, 1983, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend, or otherwise discipline the 2-COP license of Richard F. Natteal, Respondent. As grounds therefor, it is alleged that at various times between March 1, 1983, and May 27, 1983, on the licensed premises Respondent possessed and allowed others to possess unauthorized alcoholic beverages, that Respondent possessed a quantity of illicit moonshine whiskey, that he maintained a place resorted to by persons illegally using controlled substances, that he operated a public nuisance, and that he had in his possession a quantity of marijuana in excess of 20 grams.

At the hearing Petitioner called four witnesses, Respondent testified in his own behalf, and eight exhibits were admitted into evidence. Exhibits 1 through 5 were physical objects comprising pouches, whiskey bottles, canister, and drugs. A description of these objects was substituted for the objects.

Proposed findings submitted by Petitioner insofar as they are included herein are adopted; otherwise, they are rejected as not supported by the evidence or unnecessary to the results reached.

FINDINGS OF FACT

1. Richard F. Natteal, Respondent, d/b/a Earth Shop, holds alcoholic beverage license No. 19-00242, Series 2-COP, which authorizes Respondent to sell beer and wine.

   
   

2. Following a complaint from the Citrus County Sheriff's Department that illegal alcohol and drugs were used and sold on the premises, the Division of Alcoholic Beverages and Tobacco assigned an undercover agent, Alfonso S. Junious, to investigate the Earth Shop.

   
   

3. Junious first visited the Earth Shop the evening of March 1, 1983. Subsequent visits were made March 3, 4, and 5; April 8, 9, 10, 16, 18, and 22; May 1, 6, 13, 23, and 27, 1983. On the May 27 visit several police officers and other beverage agents accompanied Junious and a search of the premises was conducted as authorized by a search warrant.

   
   

4. During these visits to the Earth Shop, Junious frequently observed customers in the lounge drinking hard liquor they had brought on the premises with them; observed Respondent and others at the bar pouring themselves drinks from a bottle on the bar labeled "Seagrams Extra Dry Gin"; observed a black female called "Weazel" or "Vicki" mixing orange juice with liquid from a bottle labeled "Seagrams Extra Dry Gin"; observed Vicki tending bar and mixing herself drinks from the gin bottle and mixing herself drinks from a brandy bottle with Coca-Cola; observed Respondent cut aluminum foil, place a small quantity of white powder on the foil, and fold it up; observed Respondent pass these aluminum foil packages to others in exchange for money; saw Vicki, Respondent, and others on the premises open the aluminum foil packets and snort the powder therein through a plastic straw; observed a man deliver a bag to Respondent behind the bar, observed Respondent remove a 200 ml bottle from the bag and offer Junious a drink of moonshine which the latter accepted (it was poured from this bottle and tasted like moonshine); observed patrons smoking "joints" and there was a strong odor; of marijuana in their vicinity; and observed Respondent and patrons passing around a small cigarette that appeared to be marijuana.

   
   

5. During the search on May 27 several empty whiskey bottles were found in the trash container behind the bar; a purse was found in Respondent's sock which contained small packets of substance which, when subsequently analyzed, proved to be marijuana; and a cylindrical container behind the bar contained two small brown pieces of what, when subsequently analyzed, was proven to be hashish.

   
   

6. Respondent testified the empty Crown Royal bottles which were admitted as Exhibits 2 and 3 were being kept for decoration; that he thought he could have his own personal their own bottles of whiskey onto the premises; that he saw the purse (Exhibit 1) on the shelf behind the bar on May 27 and put it in his sock not knowing the contents of the purse; that the whiskey bottles in his trash were bottles he picked up outside his premises where they had been discarded by patrons of the Elks Club next door; that he was out back barbecuing during the times Junious testified he observed Respondent drink from a bottle on the bar, prepare the aluminum foil packets, pass them to patrons, and snort the powder from these packets; and that he did not know the cylindrical container (Exhibit 5) was behind the bar until the agents conducting the search lifted it off the floor.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Section 561.29, Florida Statutes, authorizes disciplinary action against a licensee including revocation, suspension, and the imposition of a civil penalty when it is determined there is a:

   
   

   (1)(a) Violation by the licensee or his or its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States or . . . permitting another on the licensed premises to violate any of the laws of this state or of the United States. . . .

   * * *

   (c) Maintaining a nuisance on the licensed premises.

   * * *

   (e) Violation by the licensee . . . of any rule or rules promulgated by the division in accordance with this chapter. . . .

   
   

9. Possession, sale, or delivery of marijuana, hashish, or cocaine are prohibited by Section 893.03(1)(c) and 893.13 (1)(a)2, Florida Statutes.

10. Section 823.10, Florida Statutes, defines a public nuisance as: Any store, shop . . . or any place whatever,

    which is visited by persons for the purpose of unlawfully using any substance controlled under Ch. 893. . . .

    
    

11. Section 562.451, Florida Statutes, makes it a misdemeanor for any person to have in his possession less than one gallon oft liquor which was not made in accordance with the laws in effect when made and that possessing what is commonly known as moon shine whiskey shall be prima facie evidence that the liquor was not made in accordance with those laws.

Despite Respondent's claim of innocence, the evidence is more credible that Respondent violated the beverage laws as alleged. In fact, it is concluded the evidence is clear and convincing that Respondent allowed the consumption of alcoholic beverages on the premises for which he was not licensed; that drugs were used on the premises; that Respondent, when searched, had in his possession approximately twenty grams of marijuana; that Respondent had moonshine on the premises; and that the Earth Shop is a public nuisance. It is therefore

RECOMMENDED that the license of Richard F. Natteal, d/b/a Earth Shop, be REVOKED.

ENTERED this 24th day of April, 1984, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings

this 24th day of April, 1984.

COPIES FURNISHED:

Thomas L. Barnhart, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Richard L. Natteal Route 3, Box 48

Crystal River, Florida 32629

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

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

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

Docket for Case No: 84-000005

Orders for Case No: 84-000005