STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES, )
)
Petitioner, )
)
vs. ) CASE NO. 84-0172
) DILLMAN, F.C., B.J., AND F.C. II, ) d/b/a FRED'S LIQUORS NUMBER 1, )
)
Respondent. )
)
RECOMMENDED ORDER
A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, in Tallahassee, Florida, on January 13, 1984.
APPEARANCES
For Petitioner: James N. Watson, Jr.
Staff Attorney
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: James P. Judkins
Davis, Judkins and Simpson Post Office Box 10368 Tallahassee, Florida 32302
Marion D. Lamb, Jr., Esquire Post Office Box 1778 Tallahassee, Florida 32302
ISSUES AND BACKGROUND
This case involves the issue of whether the Respondent's beverage license should be suspended, revoked or otherwise disciplined for multiple sales of controlled substances by employees and patrons on the licensed premises. At the formal hearing, the Division of Alcoholic Beverages and Tobacco called as witnesses, Rodney A. Russ, William J. Spears, and James B. McPherson. The Respondents called as witnesses, Deborah Craven, Tina Meredith, Roxanne Hayes, Walter Humphries, Chris Poulos, Mark Willingham, Leonard Coffee, and Respondent, Fred C. Dillman, II. Petitioner offered no exhibits and Respondent offered and had admitted one exhibit. Counsel for the Petitioner and counsel for the Respondent submitted memoranda of law. Neither party submitted proposed findings of fact and conclusions of law.
FINDINGS OF FACT
At all times material to the allegations and charges in this proceeding, the Respondents F. C. Dillman, B. J. Dillman, and F. C. Dillman, Jr., were the holders of a valid beverage license number 47-196, Series 4-COP. This license is held by Respondents as a partnership and is issued to the licensed premises known as Fred's Back Door Lounge, located at 2009 West Tennessee Street, Tallahassee, Florida.
On Saturday, November 12, 1983, Beverage Officer Rodney A. Russ entered the licensed premises, Fred's Back Door Lounge, in an undercover capacity. Officer Russ had been requested by his superiors to conduct an investigation of possible drug activity at the lounge. The lounge is divided into a front area and back area by partial walls and there are bars serving drinks located in both areas. The lounge has a front entrance and a back entrance. The back entrance opens out onto a deck or porch area.
Upon entering the licensed premises, Officer Russ, and a friend who accompanied him, ordered drinks from a bartender named Brenda. Officer Russ and his friend conversed with Brenda and during the course of the conversation, Officer Russ asked her if she knew someone she trusted that he could get two joints from. Joint is a slang or street term for a marijuana cigarette.
Brenda responded that she didn't trust anyone. She then left the area where Officer Russ was seated. Officer Russ observed Brenda approach another bartender named Kathy. Kathy handed a rolled up napkin to Brenda and Brenda then walked back over to Officer Russ and handed the napkin to him. The napkin contained 0.975 grams of marijuana, a controlled substance under Chapter 893, Florida Statutes.
On this particular evening, the lounge was approximately 3/4 full and had about 75 patrons. The employees on duty included three bartenders, two doormen, and a gentleman in the package store. The conversation with Brenda about drugs occurred in a low town of voice and could not be overheard by other patrons. Brenda attempted to conceal the transfer of the marijuana and there was no effort on Officer Russ's part to make the transfer obvious to anyone else. Brenda was not paid any money for the marijuana.
On November 16, 1983, Officer Russ again went to the licensed premises and on this occasion, he was accompanied by Beverage Officer, Gloria Smith. They entered the lounge at approximately 9:30 p.m. and sat at the bar when Brenda was working mixing drinks. They talked with Brenda, and Officer Russ asked her if she could get a couple of joints for him and Smith. Brenda said she would see what she could do. During this conversation, there were patrons standing 2 or 3 feet behind Officers Russ and Smith. There were no seats on either side of them at the bar.
Later that evening, Brenda delivered two joints of marijuana to Officer Russ. The joints were again rolled up in a napkin which Officer Russ did not open. Officer Ruff offered to pay Brenda for the marijuana and she refused to accept payment.
This evening, the lounge was almost full and had approximately 100 patrons. There were three bartenders and two doormen on duty in the lounge. The napkins received from Brenda contained two rolled marijuana cigarettes containing 1.5 grams of Marijuana. No other employee participated in the drug transfer and the conversation about drugs was in a soft, low tone of voice.
Officer Russ next returned to the licensed premises on November 18, 1983. He went to the lounge along an arrived at approximately 6:40 p.m. There were about 50 patrons in the lounge and Officer Russ took a seat at the back bar where Brenda was working. Of the approximately 50 patrons in the lounge about half of the patrons were in the back area. While seated at the bar, Officer Russ met Larry Mallon. During the conversation, Officer Russ told Mallon that he was looking for some marijuana. Mallon told him he had some and took a clear plastic baggie out of his right coat pocket and handed it to Russ. The marijuana was handed to Officer Russ just below the padded area of the bar. The transfer could have been seen by other persons in the lounge but was not visible to someone behind the bar. The plastic baggie contained 1.1 grams of marijuana. Russ did not pay Mallon for the marijuana.
While seated at the bar, Russ also purchased 1 gram of cocaine from Mellon for $75. Mellon took the packet of cocaine from his right coat pocket and handed it to Russ. Russ then placed $80 on the bar and Mallon picked it up and handed him $5 in change. The cocaine transaction took place just as Officer Russ was about to leave the licensed premises. There was an employee present behind the bar approximately three (3) feet from Russ and Mallon when the drugs were transferred but Russ could not say whether the employee was looking at them or not.
On this particular evening, Russ had no discussions about drugs with employees of the licensed premises. He left the licensed premises at approximately 9:00 p.m. Officer Russ had never met Larry Mallon.
Officer Russ, along with Officer Smith, was next in the licensed premises on November 30, 1983. They entered the lounge at approximately 8:40
p.m. and took the same two seats at the same area of the bar where they had sat on the previous visit. Brenda was working behind the bar and Russ asked her if she had any amphetamines or uppers. She said she believed she-did have some and would look and see. Later, Brenda gave Officer Russ 2 tablets which she said were speed, but testing revealed they were not a controlled substance. He also asked Brenda if she could get some marijuana for Officer Smith. Brenda told Officer Russ that someone in the bar was selling marijuana for $100 an ounce and would break it down to quarter ounce for $30. Kathy, another bartender was present during the conversation about drugs and Brenda informed her that Officer Russ and Officer Smith were looking for some pot (marijuana)
Later that evening, Officer Smith met a patron named Butch. Butch joined Officers Russ and Smith at the bar after Smith asked him across the bar about possibly obtaining marijuana. Butch told them he could get them a quarter ounce of marijuana for $30. Be said he would have to leave for about ten minutes but would return. He left and returned a short time later and stated to Officer Russ that he had the marijuana but wanted to make the transfer outside the car. Butch, Officer Russ and Officer Smith went out to the parking lot where Butch sold them 2 grams of marijuana for $30.
Officers Smith and Russ returned to the lounge Russ asked Brenda if Butch could be trusted and if his marijuana was any good. She said Butch was
o.k. During this conversation, a patron named Jim Bob was present.
This particular evening, the lounge was crowded and loud music was playing. There were seven employees on duty in the lounge that night. While in the lounge, Officer Russ observed Brenda with a handful of red tablets and also observed a motorcycle gang type individual smoking what smelled like marijuana on the deck outside the back entrance of the lounge.
Officer Russ next visited the licensed premises on December 3, 1983. Russ went to the lounge alone and sat at the bar where Brenda and Kathy were working. He began conversing with Brenda and Kathy and asked Kathy if she knew anyone he could get a quarter of an ounce of marijuana from. Kathy said she would look around and twice during the evening came back to Officer Russ and told him she was still looking. During the evening, Officer Russ also spoke to Butch and asked him if he was holding any drugs. Butch said he was not but that he should check the back porch, that there was someone usually smoking marijuana back there. Officer Russ did not obtain any drugs in the licensed premises this particular evening.
Accompanied by Officer Smith, Officer Russ again returned to the licensed premises on December 7, 1983. They arrived at approximately 7:30 p.m. When they arrived, Fred Dillman, Jr., was seated at the front bar talking to Brenda. Officer Russ walked up to the bar and spoke to Brenda, who in turn introduced him to Fred Dillman. Later, after Russ went to the back bar, Brenda came back to the bar and began working behind the bar. Brenda told Russ she wanted to talk to him about her cousins in Bristol. She said her cousins had some good reefer (marijuana) and that she was going over to Bristol for the weekend. She asked if Russ wanted some of the reefer. Brenda initiated this conversation about drugs.
While Russ was talking with Brenda, Larry Mellon was standing nearby. After Russ talked with Brenda, Larry Mellon began talking with him about the coke he had given him. Russ told Mellon he wanted to buy some reefer and Smith kept saying she wanted to buy coke. Russ told Mellon he wanted to buy $60 worth of reefer. Mellon then left the lounge with another man and moments later Mellon returned and handed a bag of marijuana to Russ. Russ had given the $60 to Mellon at the bar. The transfer of the money was very open and at the time the transfer took place, Brenda was behind the bar nearby.
The baggie which Russ received from Mellon contained 9.9 grams of marijuana. Russ did not talk with any employee other than Brenda about drugs on this particular evening. At no time during the evening did Russ observe Dillman come into the back area of the lounge where Brenda was working.
On Friday, December 9, 1983 Officer Russ returned to the licensed premises. He arrived at approximately 8:00 p.m. and went to the back area of the bar where Brenda was working. Officer Russ talked with Brenda about the marijuana she was going to get in Bristol and eventually he asked her if she had any speed. Brenda then took two capsules out of her purse and handed them to Officer Russ. When she retrieved the two capsules from her purse, she placed her purse on the bar and took out medicine vials. She looked in the vials until she found what she was looking for. She handed the two capsules across the bar to Officer Russ. Officer Russ had already received his drink and when he gave her the money, the only thing he received across the bar were the two capsules. The two capsules were phentermine, a controlled substance under Chapter 893, Florida Statutes. Officer Russ gave Brenda $10 for the two capsules and she reluctantly accepted the money. When she took the money, Brenda said she would get the prescription refilled and share them with Officer Russ.
On this particular evening, there were approximately 35 to 40 patrons in the lounge and 4 or 5 employees on duty.
On December 14, 1983, Officers Russ and Smith went to the licensed premises. Brenda was working that evening and Officers Russ and Smith took seats at the bar where she was working. They talked with Brenda and Officer Russ asked her if she could get them something. Brenda then went over to a male patron seated at the bar across from Officers Russ and Smith and talked with him briefly. She reached into the man's right shirt pocket and took out a small amount of marijuana wrapped in a clear plastic material like Saran wrap. Brenda then walked over and handed the packet to Officer Russ. The packet contained .9 grams of marijuana.
That same evening, Officer Russ talked with one of the doormen named Hank (aka Hank the Tank) . The conversation took place at the back wall next to the juke box. Russ asked Hank if he knew where he could get some cocaine. Hank said he would check for him. Later that evening, Hank came back to Russ and said that everyone was out but that they would be getting some the next day.
There were approximately 75 patrons in the lounge this night and there were approximately 7 employees on duty.
On December 16, 1983, Officer Russ returned to the licensed premises. He was accompanied by Barbara Brown, a Callaway police officer. They entered the lounge at approximately 8:25 p.m. and took seats at the beck bar where Brenda was working. There were approximately 50 to 70 patrons in the lounge and
6 employees on duty. While seated at the bar, Officer Russ talked with Brenda, who at one point placed her purse on the bar and searched through several medicine vials just as she had done on a prior occasion. She then handed Officer Russ a yellow capsule similar $0 the ones he had received before. Russ did not pay Brenda any money for the capsule. The capsule was phentermine, a controlled substance under Chapter 893, Florida Statutes.
This evening, Officer Russ also spoke with a doorman or bouncer on duty named Kevin. He asked Kevin if he could get him some marijuana. Kevin said Tallahassee was dry and that he had not had a joint in 3 days. Kevin, at the time of the formal hearing, was no longer employed by the Respondent.
On his next visit to the licensed premises, Officer Russ was accompanied by Officer Smith. This visit occurred on December 21, 1983. There were between 50 and 75 patrons in the lounge and 5 employees on duty. Officer Russ spoke with one of the barmaids on duty about Kevin. Russ also asked her if she knew where he could get a joint. She said she did not, and suggested he talk to Cindy the bartender at the front bar. Brenda was not working this particular evening end Cindy was working at the front and back bar. Cindy was working at the back bar at that time and Russ spoke with her about the availability of drugs. Cindy told Officer Russ that she had a friend who would be returning with some Hawaiian marijuana. Larry Mellon overheard the conversation and told Cindy and Russ that the guy she was referring to wasn't coming back but was going to Chi-Chi's and then-home.
Russ then began talking with Larry Mellon and Jim Bob Kitchen joined them. During the conversation, Jim Bob handed a marijuana cigarette to Officer Smith who then handed it to Officer Russ. The exchange occurred at approximately 10:00 p.m. The marijuana cigarette looked like a rolled marijuana cigarette and contained .2 grams of marijuana.
This same evening, Officer Russ was introduced by Butch (whom he had met previously) to a woman named Melinda. Officer Smith had earlier been introduced to Melinda by Butch and was told that Melinda had some marijuana to sell. Officer Russ discussed buying some marijuana from Melinda, and Russ, Smith, and Melinda then went outside the lounge to the parking lot where Melinda sold 11 grams of marijuana to Officer Russ for $30. Officer Russ had never met Melinda before.
On Wednesday, December 28, 1983, Officer Russ returned to the licensed premises. Brenda was working at the back bar and Russ took a seat at that bar. Russ asked Brenda if she had gotten the marijuana in Bristol. She said she had not but that she had gotten some more pills from her doctor in Quincy. She said she had marijuana and pills in her car and that she had taken some really good cocaine earlier in the evening. Russ asked Brenda if she had any of the cocaine left and she said she did. Brenda offered to sell Russ some of the cocaine for
$75. This discussion took place at the bar with Larry Mellon and Jim Bob Kitchen present.
While he was seated at the bar, Brenda got her purse and went to the doorway located next to the little short bar. She took out some pill bottles and in a few moments returned to Russ and gave him an envelope. As she handed him the envelope, Brenda stated she had put the other stuff in there too. The envelope was handed across the bar in open view. The envelope contained 15 capsules of phentermine and a triangular shaped packet of cocaine.
Larry Mellon was standing nearby when the transfer occurred and asked Russ what they were doing. Russ said, "Nothing." Larry then stated that he knew what they were doing and that he had seen money change hands and had seen the envelope.
After he received the envelope, Russ again asked Brenda about getting some marijuana. Brenda then left the bar through the front door and returned shortly through the same door with a brown bag in her hand. She handed the bag to Officer Russ who then put the bag in his beck pocket. The bag contained .2 grams of marijuana.
On January 4, 1984, Officer Russ went to the licensed premises alone. When he arrived, there were very few patrons in the bar and Brenda was seated at the back bar with her feet up. The other bartender, Kathy, was also present. Officer Russ talked with Brenda and Kathy and jokingly asked Kathy if she would like to run a couple of lines of cocaine on the bar. Be also asked Brenda if she had been to Bristol yet. Brenda responded she had but not far enough to get the marijuana. Cindy came back from the front bar and spoke to Brenda, and Russ asked Cindy if her friend with the Hawaiian stuff had come back. Cindy responded, "No."
Brenda brought up the subject of pills and placed her purse on the bar end looked at several medicine vials. She took some pills out of one of the vials and placed them in a napkin and handed the napkin to Russ. Russ told Kathy that Brenda had just given him some speed and did she want some. Brenda responded by saying, "Kathy wants coke." Russ then told Cindy that Brenda had given him some speed end did she want to go outside and have some.
There were a total of four employees on duty in the lounge this night. There were no doormen working. There were approximately 20 patrons in the lounge. The ten white capsules which Officer Russ received from Brenda were methyephenidate a Schedule II controlled substance under Florida law.
Officer Russ's lest visit to the licensed premises was on January 6, 1984. Russ entered the lounge alone and as he entered, he spoke -with Kathy, Cindy and another bartender named Pam. Russ went to the back bar where Brenda was working. He obtained some pills from Brenda. These pills were handed across the bar to Russ and were not in any type of container. Prior to this transfer, Russ had been talking to a patron named Bucky about drugs and pills. As she handed Russ the pills, Brenda stated that she did not have anything to put them in and that she was going to take one herself. Russ told her to give Bucky one and she did. Russ then gave Brenda $20 and told her that she could get the prescription refilled and share them with him.
Russ left the licensed premises about 8:55 p.m. and as he was leaving, he spoke to the two doormen. He first asked them where Hank was and they said, "Osceola Hall." Russ then told them that he had just gotten some speed and that he was going outside to take some. The two doormen just laughed. Neither of them asked him to leave.
Mr. Fred Dillman was observed in the licensed premises on only one of the 14 evenings Officer Russ was in the lounge. Sometime in October, Mr. Dillman injured his hand and lost a finger in an accident on his farm. Because of this injury he was in the lounge less than he normally would have been in November and December.
Mr. Leonard Coffee is the manager of the licensed premises. He manages Fred's Back Door Lounge and another lounge owned by the Respondents. He has worked as manager for 11 or 12 years and has worked in the liquor business off and on since 1955. He divides his work hours between Fred's Back Door Lounge and the other lounge he manages. Mr. Coffee was never informed by any employee that Brenda was dealing drugs in the lounge. It was not established how much of the manager's time is spent in each lounge.
Mr. Coffee testified that he instructed all employees to call the police then report to them if they saw anyone with drugs in the lounge. However, only one of three bartenders who testified recalled having been instructed to report drug problems to the manager. Several employees had been
approached about drugs and did not report this information to the manager or the owner. One employee, Walter Humphries, had detected a strange odor in the lounge on prior occasions and hand thrown out people in the area of the odor.
On one of his visits, Officer Russ also smelled what he considered to he marijuana smoke inside the lounge.
There was no clear policy established or communicated to the employees as to what they were to do if they detected drugs being used or sold on the licensed premises. Mr. Coffee testified that he told the employees to call the police end inform him if there were any drugs detected on the licensed premises. However, the employees were not aware of this policy and did not follow the policy.
There were no instructions given to employees regarding the detection of drugs and what they should look for in observing and supervising the licensed premises. There were no regular employee meetings where problems or potential problems in the lounge such as drugs were discussed.
At the time each employee is hired, they are interviewed and are asked for prior work references. They are not required to fill out an application and are not asked whether they use drugs. No signs were observed in the lounge prohibiting the use or possession of drugs.
Approximately two years ago, Respondent, Fred Dillman, 11, was informed by his attorney that the District Beverage Captain had received information that Brenda was selling drugs at the licensed premises. Mr. Dillman confronted Brenda with this information and she denied any involvement with drugs. Brenda, at that time, had been a good employee without any problems at work for seven years. He did not terminate Brenda but asked Mr. Coffee and another employee, Mr. Poulis, to keep an eye on Brenda. Mr. Poulis works in the liquor store from 6:00 p.m. to 10:00 p.m. and then works in the lounge until closing time at 2:00 a.m. Prior to his accident in October, Mr. Dillman was in the lounge more at night. Mr. Dillman's father and mother do not go-to the lounge at night. The patrons of the lounge are almost entirely college age.
Mr. Dillman had received information that patrons were smoking marijuana on the back deck of the lounge and that the bikers were dealing drugs on the deck. Approximately one month ago, he instructed his bartenders to stop serving the bikers. Mr. Dillman was aware that drugs were likely to be present in a primarily college age crowd.
Fred's Back Door Lounge has a reputation in the community as an establishment where drugs could be obtained.
The Respondents do not approve of or condone use of drugs in the licensed premises or elsewhere. Neither the Respondents nor the manager, Mr. Coffee, were aware that Brenda was selling drugs on the licensed premises.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding.
Section 561.29(1)(a), Florida Statutes (1981), empowers the Division of Alcoholic Beverages and Tobacco to revoke or suspend an alcoholic 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.
In the instant case, the Respondents are charged with a violation of Sections 893.13(1)(a) and 561.29(1)(a), Florida Statutes (1981), as a result of their employee, Brenda, selling or delivering controlled substances on November
12 and 16; December 9, 14, 16, 28, 1983; and January 4 and 6, 1984. Respondents are also charged with maintaining their establishment as a place resorted to by persons using drugs in violation of Sections 893.13(2)(a)(5) and 561.29(1)(a), Florida Statutes (1981). The third charge alleges that Respondents operated a nuisance in violation of Sections 823.01, 823.10, and 561.29(1)(a) and (c), Florida Statutes (1981) . The last count of the Notice to Show cause charges that the Respondents, through their employees, aided and abetted in the sale or delivery of marijuana on the licensed premises.
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 Statutes 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 and cocaine are controlled substances and it is a violation of state law to sell, use, deliver, or possess it. Section 893.13, Florida Statutes (1981).
Phentermine and methylphemidate are controlled substances and it is a violation of state law to unlawfully 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. Nadjawski 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 Statutes Section 777.011.
In order to discipline Respondent's license, the Division of Alcoholic Beverages end 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 Hoard 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 372 (Fla. th 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, supra, G. & B. of Jacksonville, Inc. d/b/a Out of Sight v. State, 371 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 in the instant case clearly establishes that an employee of the licensed premises while on duty sold or transferred controlled substances in the licensed premises on 10 different occasions between November 12, 1983, and January 6, 1984. The evidence also establishes that the respondents were negligent in the supervision and control of their licensed premises and are therefore culpable with regard to these violations. The evidence did not establish any intentional wrongdoing on the part of Respondents or condonation of the drug activity by their employee.
On ten separate evenings, Beverage Officer Russ was able to engage Brenda in conversation about drugs and on his first visit to the licensed premises was able to obtain marijuana from Brenda. On at least two occasions, Brenda actually placed her purse on the bar to look for and retrieve pills which she gave to Officer Russ. These pills were handed to Russ across the bar and on one occasion were transferred in the presence of a patron named Bucky. Brenda openly discussed drugs with Officer Russ and patrons as well as other employees present. On two occasions when Officer Russ received pills or capsules from Brenda, he handed her cash across the bar.
Beverage Officer Russ also approached other employees, including two bartenders and two doormen, about purchasing drugs. On each occasion, they said they would check around for him. On one occasion, Officer Russ actually told two of the doormen he had obtained some "speed" from Brenda. In none of these contacts was Officer Russ asked to leave the licensed premises or informed that drugs were not permitted in the lounge. These employees did not report the contacts regarding drugs to the manager.
On November 18, 1983, Officer Russ, while seated at the bar where Brenda was working obtained marijuana from a patron, Larry Mellon. Russ also purchased a gram of cocaine from Mellon and when the money was given to Mellon, Officer Russ laid $80.00 on the bar and Mellon picked it up. On December 9, 1983, Russ also purchased marijuana from Mellon. This purchase took place inside the lounge and the transfer was open.
On December 21, 1983, Officer Russ was given a marijuana cigarette in the licensed premises by a patron named Jim Bob Kitchens. That same evening, Russ met a patron named Melinda who sold him II grams of marijuana. The transfer took Place in the parking lot, but the transaction was discussed and negotiated inside the lounge. On November 30, 1983, Officer Russ had also negotiated the purchase of marijuana from a patron named Butch. Again, all the negotiations occurred inside the lounge and the transfer took place in the parking lot.
On at least one occasion, Officer Russ smelled what appeared to be marijuana smoke in the licensed premises. A doorman, Walter Humphries, had also detected strange smells in the lounge and had thrown out some people in the area of the smell.
These facts above establish a persistent and recurring pattern of drug transactions and discussions inside the licensed premises. The owner had had a prior warning regarding Brenda and also had information that "bikers" were using and selling drugs at the licensed premises. He was also aware that drugs are more prevalent in college-age crowds.
Even in light of this information, there was no written or established policy communicated to the employees about preventing use, sale, or possession of drugs in the lounge. The employees took no steps whatever when Russ approached them about drugs. There were no regular employee meetings to discuss problems or for management to ask about possible drug activity. There were no signs in the licensed premises prohibiting drugs and no set plan or program for security in the lounge. Mr. coffee testified that when he was in the lounge he looked around for drugs but gave no explanation as to who supervised the employees and the lounge in his absence. New employees were not questioned about their involvement with drugs.
This lack of surveillance and supervision created an atmosphere within which employees and patrons alike felt free to discuss, transfer, and sell drugs inside the licensed premises. These drug transactions were frequent and in most instances open. The Respondents were negligent in the supervision of their employees and the licensed premises.
The evidence established that Respondents are guilty of the violations alleged in counts 1, 2, and 3 of the Administrative complaint. The evidence did not establish the violation alleged in count 4.
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 1962). In the instant case, Respondents are not guilty of intentional wrongdoing or of condoning the illegal drug transactions. Respondents are guilty of negligently failing to properly supervise their employees and the licensed premises. Under these circumstances, it is concluded that an appropriate penalty is suspension of the beverage license for a period of 90 days and the imposition of a $10,000 civil penalty.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That Petitioner enter a Final Order finding Respondents guilty of the violations as set forth above and suspending the Respondent's license for a period of 90 days and impose a civil penalty of $10,000.
DONE and ORDERED this 23rd day of January, 1984, in Tallahassee, Florida.
MARVIN E. CHAVIS, 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 24th day of January, 1984.
COPIES FURNISHED:
Howard M. Rasmussen, Director Division of Alcoholic Beverages
and Tobacco
725 South Bronough Street Tallahassee, Florida 32301
James N. Watson, Jr., Esquire Staff Attorney
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
James P. Judkins, Esquire
P.O. Box 10368 Tallahassee, Florida 32302
Marion D. Lamb, Jr., Esquire
P.O. Box 1778 Tallahassee, Florida 32302
| Issue Date | Proceedings |
|---|---|
| Jan. 24, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 24, 1984 | Recommended Order | Ninety-day suspension and $10,000 fine for failure to use due dilligence in managing bar where drugs were used and sold. |
