STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-0377

) TROY EARL McCOY, t/a McCOY'S ) CHEVRON STATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing issued by the undersigned on February 14, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Marianna, Florida, on May 2, 1984. The issue for consideration is whether Respondent's alcoholic beverage license should be disciplined because of the alleged misconduct set out in the Notice to Show Cause filed herein.

APPEARANCES

For Petitioner: Sandra P. Stockwell, Esquire

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

For Respondent: Herman D. Laramore, Esquire

Post Office Box 793 Marianna, Florida 33446

BACKGROUND INFORMATION

On December 12, 1983, a Notice to Show Cause signed by H. Rasmussen, Director, Division of Alcoholic Beverages and Tobacco, was filed in this case and served on the Respondent, Troy Earl McCoy, alleging that on Sunday, September 18, 1983, Mr. McCoy engaged in the cultivation and trafficking of more than 100 pounds of marijuana in violation of Florida Statutes 893.135(1), which is also a violation of Section 561.29(1)(b), Florida Statutes (1983).

Respondent requested a formal hearing which was held as stated.

At the hearing, petitioner presented the testimony of Harold Glisson, an investigator with the Jackson County Sheriff's Department; Wayne T. Morris, a Jackson County Deputy Sheriff; John P. McDaniel, III, Sheriff of Jackson County; Melvin D. Dietz, a Jackson County Deputy Sheriff; Herbert Williams, the Transportation Officer for the Jackson County Sheriff's Office; and Marion Parker Estes, a chemist with the Florida Department of Law Enforcement.

Petitioner also offered Petitioner's Exhibits 1 through 10.

Respondent testified in his own behalf and presented the testimony of John

1. Miller, a jobber with Chevron USA and Respondent's gasoline supplier; and Edward V. Williams. No exhibits were introduced by Respondent.

   
   

   FINDINGS OF FACT

   
   

   1. At all times pertinent to the issues herein, Respondent, Troy E. McCoy, trading as McCoy's Chevron Station in Marianne, Florida, held current alcoholic beverage License No. 42-71, issued by the State of Florida. This license is a 1-COP license.

      
      

   2. On September 18, 1983, Harold Glisson, a Deputy Sheriff with the Jackson County Sheriff's Department, was engaged in surveillance on property owned by a Mr. Maloy and a Mr. Harding located in Jackson County, Florida. Information had been presented from other deputies, specifically Deputy Wing T. Morris, that a growing plant which he recognized as marijuana had been spotted on the property from the air. Glisson arrived at the property between 1:00 and 2:00 p.m. After looking the property over, the deputies went back to the office to change clothes and pick up the gear necessary for their surveillance. They returned to the property at approximately 7:00 p.m. on September 18 and sat waiting in the dark. Mr. Glisson was located at the southeast corner of the property near Interstate Highway 10.

      
      

   3. At approximately 10:15 in the evening, Respondent and another individual subsequently identified as Vic Williams passed Deputy Morris, who was also involved in the surveillance, walking toward the field where the marijuana was located. Morris, who had a hand-held radio, called on ahead to Mr. Glisson and advised that two individuals were heading toward him. When the Respondent and Williams came to the area where Glisson was located, Glisson stood up, identified himself, and notified the two that they were under arrest. Williams stayed where he was, but Respondent started running and was apprehended approximately 50 to 75 yards away.

      
      

   4. At this point, Williams had seven plants subsequently identified as marijuana over his shoulder. Respondent was carrying nothing other than a pocketknife, a flashlight, and some string in his back pocket.

      
      

   5. After Respondent was apprehended, he was transported to the Jackson County Jail.

      
      

   6. The field was kept under surveillance all the rest of the night and, when dawn came, deputies pulled out in excess of 290 marijuana plants which were subsequently weighed and determined to weigh approximately 800 pounds, including roots, stalks, stems, etc. After the vegetable matter was dried and stripped down to just limbs and leaves, the net weight was, nonetheless, 117 pounds.

      This vegetable material was subsequently taken to the Florida Department of Law Enforcement laboratory in Pensacola, Florida, where it was analyzed and determined to be marijuana.

      
      

   7. The land on which the marijuana was growing was owned by Mr. Harding, for the most part. Mr. Harding was not interrogated by the police regarding this situation, even though he lived on the property.

      
      

   8. There is some controversy as to whether the deputy who confronted Respondent and Mr. Williams identified himself as a deputy at that time. The deputy contends that he did. Mr. McCoy, on the other hand, contends that he did

      not, indicating that he was suddenly confronted in an area where he had been advised marijuana was being cultivated by an individual who rose up in front of him, shined a light in his face, and cocked a shotgun; and it was the combination of these factors which caused him to run, fearing that his confronter was someone involved with the growing of the marijuana. This explanation is reasonable, and Respondent's reaction, even if the deputy identified himself as such, is not necessarily indicative of culpability.

      
      

   9. Respondent indicates that he went to the site voluntarily, knowing or believing that marijuana was being grown there. He indicates that earlier in the evening Mr. Williams had come to his gas station and in the course of conversation related that he had seen a place where marijuana was being grown. Respondent contends that for no other reason than just to see what marijuana looked like growing he decided to accompany Mr. Williams back to the site. It is at this point when he was apprehended.

      
      

   10. It is significant to note that at the time of apprehension the parties were exiting the marijuana patch and Mr. Williams had several marijuana plants over his shoulder. Williams admits that he had taken them for his own purpose and use. His knowing possession of marijuana, however, does not necessarily require the conclusion that Respondent either owned, possessed, or controlled it.

       
       

   11. Respondent is a respected businessman who has lived in the community for many years. His business associates know him as an excellent customer who has worked hard and improved his business. He is also known to have a good reputation with the bank and to be a good family man who conducts both his personal and business lives in a highly moral fashion. Respondent has no criminal record, and there is no record of any beverage violations over the six years he has held his beverage license.

       
       

   12. Respondent operates a gasoline station, grocery, fish bait, feed, and all-around general store. His alcoholic beverage license is for the sale of beer. His alcoholic beverage business constitutes at least 50 percent of his nongasoline business. His operation is the one place in the area where individuals who are going fishing, hunting, camping, or picnicking can come to pick up all of their supplies, including beer, in one place. He contends that if his alcoholic beverage license were suspended or revoked it would have serious adverse consequences upon his business and would very possibly have the ultimate effect of putting him out of business since he could not make his debt service without the beverage business. This estimate was confirmed by Mr. Miller, the jobber who supplies Mr. McCoy with his gasoline and who has invested substantial sums in Mr. McCoy's business for the purpose of improvement. It is these sums which could not be paid off if Respondent were to lose his license.

       
       

   13. On March 27, 1984, Respondent entered a plea, waiver and consent in the Circuit Court for Jackson County, Florida, on charges alleging trafficking in over 100 pounds off cannabis in violation of Section 893.135(1)(a), Florida Statutes. Respondent entered a plea of guilty to the crime of attempted trafficking. That portion of the form where Respondent was required to state the facts which resulted in the charges contains the comment "I was found and arrested in a wooded area at night where cannabis was growing." As a result of his plea, Respondent was required to pay a fine of $10,000 (notwithstanding counsel for Petitioner's representation that the fine was $25,000) and sentenced to spend every night and weekend in the county jail for a term of one year.

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the proceeding.

       
       

   15. In its Notice to Show Cause, Petitioner alleges that Respondent violated the provisions of Section 893.135 (1)(a)1, Florida Statutes (1983), which states:

       
       

       1. Except as authorized in this chapter or in chapter 499 and notwithstanding the pro- isions of s. 893.13:

          1. Any person who knowingly sells, manufac- tures, delivers, or brings into this state,

             or who is knowingly in actual or constructive possession of, in excess of 100 pounds of cannabis is guilty of a felony of the first degree, which felony shall be known as "trafficking in cannabis." If the quantity of cannabis involved:

             1. Is in excess of 100 pounds, but less than 2,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 calendar years and to pay a fine of $25,000.

             
             

             If proven, a violation of Section 893.135 also constitutes a violation of Section 561.29(1), Florida Statutes (1983), which at Subparagraph (d) gives the Division authority to revoke or suspend the license of a person who has violated any laws of this state.

             
             

   16. Respondent pleaded guilty to the lesser included offense of attempting trafficking in marijuana in violation of Section 777.04(1), Florida Statutes (1983), which says:

       
       

       1. Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration or is intercepted or prevented in the execution of the same, commits the offense of criminal attempt and shall, when no express provision is made by law for the punishment of such attempt, be punished as provided in subsection (4).

          
          

          Before concluding that Respondent is guilty of this section, it must be established that he willfully and knowingly was attempting to engage in the commission of the basic offense; to wit, the trafficking in cannabis; but failed to successfully complete the commission of the offense.

   17. The evidence of record establishes that Respondent was found in a field in which marijuana was being illegally grown at approximately 10:30 in the evening. The evidence also shows that when confronted by sheriff's deputies, the Respondent ran. The evidence also shows that Respondent pleaded guilty to attempted trafficking in marijuana, which itself is a felony in the second degree. It must be noted, however, that there is no evidence in the record to indicate that Respondent was found guilty pursuant to his guilty plea.

       
       

   18. Respondent explained his reasons for being in the marijuana field, and those reasons are plausible. He also explained his reason for running when confronted with the sheriff's deputy, and this reason, too, is plausible. The evidence shows that at the time of his apprehension Respondent did not have in his immediate possession any of the marijuana plants. All those that had been picked were in the possession of Mr. Williams. Respondent did not have on his person anything of an incriminating nature. He had only a penknife, a flashlight, and some string. The keys to the gate which allowed access to the field in which the marijuana was being grown were on the key ring not of Respondent, but of Mr. Williams, whose beekeeping activities would have justified their presence there. Respondent's excellent reputation in the community for honesty and forthrightness and his absence of a criminal record bear heavily on his credence and a belief in his story.

       
       

   19. It is more difficult, however, to accept Respondent's explanation of the reason for his plea of guilty in circuit court. The rationale that his plea was one of convenience based on a fear of more severe punishment upon conviction is simply not persuasive. The waiver and plea form which was introduced by Petitioner as an admission against interest as it relates to Respondent's comment thereon that he was found in the area where cannabis was growing, once properly received into evidence, may be used without limitation. Respondent's willingness to pay a $10,000 fine and spend every night in jail for a year after a plea of guilty to attempted trafficking in marijuana is strong evidence of his involvement in that criminal activity and offsets much of the doubt previously discussed.

       
       

   20. The evidence, therefore, indicates that Respondent did violate Section 777.04, Florida Statutes (1983), which is a lesser included offense of the offense of trafficking in cannabis in violation of Section 893.135, Florida Statutes (1983). This then becomes a violation of Section 561.29(1)(b), Florida Statutes (1983).

       
       

   21. A violation of Section 451.29(1)(b), Florida Statutes (1983), relating to misconduct by the licensee does not require a nexus to the operation of the licensed property. In that case, the criteria set out in Rex Allen Jones, t/a Happy Hour v. State, Department of Business Regulation, Beverages, Case No. AU-

       132 (Fla. 1st DCA 1984), do not apply here. Under the terms of the statute upon which the disciplinary action here contemplated is based, there is no requirement for repeated violations, and a single violation by the licensee suffices to support discipline.

       
       

   22. The parties have submitted posthearing legal memoranda which include 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.

RECOMMENDED ACTION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that Respondent be fined $1,000 and his license be revoked, but that the revocation be suspended for a period of two years.

RECOMMENDED this 5th 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 5th day of June 1984.

COPIES FURNISHED:

Sandra P. Stockwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Herman D. Laramore, Esquire Post Office Box 793 Marianna, Florida 33446

Mr. Gary R. Rutledge Secretary

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

Mr. Howard N. Rasmussen Director, Division of Alcoholic

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

Docket for Case No: 84-000377

Orders for Case No: 84-000377