STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1048

)

JOHNNIE WOODS, JR., d/b/a )

BLACK MAGIC, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on March 30, 1984, in Miami, Florida, before the Division of Administrative Hearings and its duly appoi nted Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: James N. Watson, Esquire

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

For Respondent: Mr. Johnni e Woods, Jr.

2908 Northwest 62nd Street Miami, Florida

This matter arose on Petitioner's Notice to Show Cause/administrative Complaint charging Respondent with various violations arising from the alleged use and sale of controlled substances in she Black Magic Lounge. On the basis of these allegations, Petitioner suspended Respondent's alcoholic beverage license by Emergency Order dated March 9, 1984.

The evidence presented by Petitioner consisted of its records (license), the testimony of the Metro-Dade Crime Lab chemists who analyzed the suspected controlled substances and Petitioner's investigators who operated undercover in the licensed premises. Respondent testified in his own behalf. Petitioner submitted proposed findings of fact which have been substantially adopted and incorporated herein.

FINDINGS OF FACT

1. Johnnie Woods, Jr. is the owner of the licensed premises known as "Black Magic" located at 2908 Northwest 62nd Street, Miami, Florida, operating under alcoholic beverage license no. 23-5233, Series 2-COP.

2. On January 26, 1984, Beverage Officer Davis entered the licensed premises known as Black Magic as part of an investigation to determine if drug violations were occurring on the licensed premises. On this visit, Davis observed numerous patrons either smoking marijuana (cannabis) or snorting suspected cocaine.

   
   

3. On January 30, 1984, Beverage Officer Houston observed a barmaid known as May smoke a marijuana cigarette and snort suspected cocaine from a plate while working at the bar. Houston also purchased a marijuana cigarette from an unknown patron who she had seen walking through the bar with a baggie of rolled marijuana cigarettes. On this date, Houston was approached by a patron known as Daryl Chester-field who handed her a small brown envelope containing marijuana and some rolling papers. She then rolled a marijuana cigarette and placed it in her purse for safekeeping. While on the premises this date with Officer Houston, Officer Davis also observed numerous patrons openly smoking marijuana and snorting suspected cocaine.

   
   

4. On February 2, 1984, Investigator Davis was on the licensed premises as part of this investigation. He observed an unidentified patron place a plastic bag of marijuana on top of a video game machine and roll several marijuana cigarettes while at the machine. This took place openly and no attempt was made by any employee to stop such activity.

   
   

5. On February 10, 1984, Officer Houston entered the licensed premises as part of this investigation. She observed the on-duty bartender, Willie Brown, a/k/a Johnnie, smoke a marijuana cigarette while standing at the bar. At her request, Houston was referred to an individual known as Jimmy by the doorman, Slim, in order to purchase marijuana cigarettes. She thereafter purchased two separately rolled marijuana cigarettes from Jimmy for a total of two dollars. While purchasing the marijuana cigarettes from Jimmy, he inquired if Officer Houston would be interested in any cocaine.

   
   

6. Later on February 10, 1984, Officer Davis approached Jimmy and purchased a $25 bag of cocaine from him. The transaction between Jimmy and Officer Davis occurred in the storeroom of the licensed premises from which Jimmy had earlier been observed removing beer to stock the bar. Before leaving the licensed premises this date, Jimmy approached Officer Davis and handed him a marijuana cigarette while Davis was seated at the bar. The delivery of this cigarette was unsolicited by either Officer Davis or Officer Houston.

   
   

7. On February 16, 1984, Officers Houston and Davis again entered the licensed premises of Black Magic. Upon entering both officers observed the majority of the patrons either smoking marijuana or snorting what appeared to be cocaine. They also observed the on-duty bartender, May, smoking marijuana behind the bar. May was also seen this date snorting suspected cocaine from a saucer on the bar. While on the premises, Officer Houston again purchased two marijuana cigarettes from the individual known as Jimmy for a total price of two dollars. Also on this date, Houston approached the manager, Willie Brown, a/k/a Johnnie, and inquired if he had any cocaine. He then walked to the rear of the bar, entered the storage room, and returned with a small suede pouch from which he obtained a foil package containing cocaine. Houston gave Johnnie $25 in exchange for the package of cocaine.

8. On March 1, 1984, Officer Thompson entered the premises of Black Magic as part of this investigation. Upon entering the licensed premises, Thompson observed numerous patrons openly smoking marijuana. While on the premises this date, Thompson purchased a $10 package of cocaine from the employee/manager known as Johnnie. The cocaine transaction took place inside the bar in an open manner.

   
   

9. On March 2, 1984, Officer Thompson again entered the licensed premises as part of the investigation. Thompson observed the on-duty bartender, May, smoking a marijuana cigarette while working behind the bar. After observing May remove a cellophane bag containing several rolled marijuana cigarettes from her purse, Thompson inquired if she would sell him too of the cigarettes. In response to this request, May sold Thompson two marijuana cigarettes from the cellophane bag for two dollars.

   
   

10. On the evening of March 2, 1984, Officer Thompson again entered the licensed premises at which time he observed the on-duty doorman, Slim, smoking a marijuana cigarette. He also observed numerous patrons openly smoking marijuana. On this occasion, Thompson inquired of an on-duty barmaid known as Felicia, if she had any cocaine. She initially stated that she had none, but later returned and asked Thompson what he wanted. He requested a ten dollar bag of cocaine. She then took Thompson's money and walked to the south end of the bar. Upon returning she handed him two foil packages containing cocaine. 1/ While on the licensed premises this date, Thompson observed the licensee, Johnnie Woods, Jr., seated at the south end of the bar with an unidentified individual who was observed smoking a marijuana cigarette.

    
    

11. The controlled substances obtained from the employees and patrons of the licensed premises of Black Magic were maintained in the exclusive custody and control of the referenced beverage officers until such time as they could be submitted to the Metro-Dade Crime Lab for analysis. Upon submission to the Crime Lab, chemists analyzed each submission by the Division and found that each purchase made by the respective beverage agents were in fact the controlled substances represented to them at the times of the transactions.

    
    

12. Upon each occasion that the beverage officers entered the bar during the investigation, there was widespread use of marijuana and cocaine throughout the licensed premises. While there were at least two signs on the licensed premises prohibiting the use or possession of drugs, at no time did the officers ever observe managers or employees of the licensed premises attempt to stop or restrict the use or sale of controlled substances on the licensed premises.

    
    

13. In mitigation, Respondent established that he was hospitalized for a three-month period prior to and during the early portion of the investigation. He was, however, present on March 2, 1984, when controlled substances were openly used and delivered.

    
    

    CONCLUSIONS OF LAW

    
    

14. Section 561.29, Florida Statutes, provides in 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, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed premises,

          or permitting another on the licensed premises to violate any of the laws of this state or of the United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by chapter 92 or the rules of evidence.

       2. Violation by the licensee or, if a corporation, by any officers thereof, of any laws of this state or any state or territory of the United States.

       3. Maintaining a nuisance on the licensed premises.

          
          

15. The above provisions empower Petitioner to revoke or suspend a beverage license for violation by the licensee or his employees of a federal or state law or applicable ordinance. Violation of the beverage statute or rules by the licensee may also result in fines of up to $1,000 per transaction.

    
    

16. These provisions have been construed to permit license suspension or revocation only where the license holder has knowledge of the illegal activity or has been negligent in supervising the licensed premises. 2/ Although a single, isolated incident outside the licensee's knowledge does not warrant a finding of negligence, violations of a persistent and recurring nature render the licensee culpably responsible. 3/

    
    

17. Cannabis and cocaine are controlled substances under Chapter 893, Florida Statutes, which makes possession or use of these substances illegal except in circumstances not applicable here. Section 823.10, Florida Statutes, declares as a public nuisance any place which is visited by persons for the purpose of unlawfully using such substances. The frequency and openness of cannabis and cocaine use and sales on the licensed premises constitutes a public nuisance within the meaning of these provisions. The frequency of such misconduct also constitutes negligence on the part of the licensee in the supervision of his business. Respondent is therefore guilty as charged in the Notice to Show Caused Administrative Complaint.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order suspending Respondent's alcoholic beverage license for a period of 90 days, including the emergency suspension now in effect.

DONE and ENTERED this 11th day of April, 1984, in Tallahassee, Florida.

R. T. CARPENTER 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 11th day of April, 1984.

ENDNOTES

1/ Although Officer Thompson entered the licensed premises on the evening of March 2, 1984, the delivery of the cocaine from the barmaid Felicia did not occur until the early morning hours of March 3, 1984.

2/ G & B of Jacksonville, Inc. v. State, 371 So. 2d 138; 371 So. 2d 139; 381 So. 2d 1074 (Fla. 1st DCA 1979); Pauline v. Lee, 147 So. 2d 359 (Fla. 2nd DCA 1962).

3/ Id.

COPIES FURNISHED:

James N. Watson, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Mr. Johnnie Woods, Jr. 2908 Northwest 62nd Street Miami, Florida

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 84-001048

Orders for Case No: 84-001048