STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 84-2049
) P R OF BREVARD COUNTY, INC., ) d/b/a SHARK LOUNGE, )
)
Respondent. )
)
RECOMMENDED ORDER
Predicated upon an emergency order of suspension served on the Respondent in this case on June 8, 1984, a hearing was held before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Cocoa, Florida, on June 13, 1984. The issue for consideration was whether Respondent's alcoholic beverage license should be disciplined by Petitioner because of the allegations of misconduct contained in the notice to show cause filed in this case, which was also dated June 8, 1984.
APPEARANCES
For Petitioner: William A. Hatch, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: James S. Theriac, III, Esquire
261 Merritt Square First Federal Building
Merritt Island, Florida 32952 BACKGROUND INFORMATION
On the evening of June 8, 1984, an emergency order for suspension was served by Petitioner on Respondent at the Respondent's place of business in Cocoa Beach, Florida. Thereafter, Respondent requested a formal hearing under the provisions of Section 120.57(1), Florida Statutes (1983).
At the hearing, Petitioner introduced the testimony of Terry A. Altman, a special agent for the Bureau of Alcohol, Tobacco and Firearms of the U.S. Treasury; Gloria Smith, a beverage agent with Petitioner; Beverly Jenkins, also an agent with Petitioner; Jimmy E. Scraggs, an investigator with the Cocoa Beach Police Department Vice Squad; and Randy Arles, a Melbourne Beach police officer on loan to the Cocoa Beach Police Department. Petitioner also introduced Petitioner's Exhibits 1-6.
Respondent presented the testimony of Charles B. Autry, a police officer with the Cocoa Beach Police Department; Gary Hummel, a major with the Cocoa Beach Police Department; Sharon L. LeVaugh, a bartender at Respondent's lounge; Gary C. Autry, owner of the Respondent lounge; and Chad J. Milkint, manager of Respondent lounge. Respondent also proffered the testimony of William MacDonald and Al Otto, both of the Cocoa Beach Police Department.
FINDINGS OF FACT
At all times pertinent to the allegations contained herein, Respondent P R of Brevard County, Inc., doing business as Shark Lounge, was the holder of Florida Alcoholic Beverage License Series 4-COP No. 15-00177 for the Shark Lounge, located at 411 North Orange Avenue, Cocoa Beach, Florida.
On March 15, 1984, Terry A. Altman, a special agent for the U.S. Treasury Bureau of Alcohol, Tobacco and Firearms (BATF), in an undercover capacity and in the company of Investigator Gloria Smith of the Division of Alcoholic Beverages and Tobacco (DABT), also in an undercover capacity, entered the Shark Lounge at approximately 2:00 a.m. They had been there before on March 12, 1984, when an employee of the Respondent, the bouncer Harry Haynes, had offered to sell marijuana to Smith. On this March 15th visit, they spoke with an employee by the name of Sherry, and Smith asked if Haynes was there. When Haynes showed up, Smith asked him if he had been able to obtain any of the marijuana he had mentioned previously, whereupon Haynes told her that cocaine was easier to get than marijuana. However, Haynes made some telephone calls and shortly thereafter requested that Altman come outside with him. Altman complied, at which time Haynes requested $30. Altman paid the $30 to Haynes and then went back inside the bar. A little later, Haynes came in and motioned Altman and Smith to come outside, where Haynes handed Altman a plastic envelope containing a green leafy substance. Upon subsequent laboratory analysis, this substance was determined to be marijuana.
On March 22, 1984, Altman and Smith went back to Respondent's lounge, where Smith saw Haynes behind the bar. At this time, she asked Haynes if she could get cocaine, and Haynes indicated that he had already ordered some for her. At approximately 2:00 a.m., Haynes came in and told Altman to go outside with him. Haynes quoted a price of $50 a half gram for the substance. Altman paid Haynes the $50 and went back inside, while Haynes went someplace else. A few minutes later, Haynes came back into the bar and requested that Altman again come outside. When he did so, Haynes handed him a small plastic bag of a white powder, suspected to be cocaine, which Altman took back into the lounge and gave to Smith. Sitting at the table and making no effort to conceal her actions, Smith held the package up to the light, tapped the bag to get the substance to one corner, and then put it into her purse. Haynes at that time guaranteed the quality of the substance and offered to get them more in the future if they so desired. This substance was subsequently analyzed and determined to be cocaine.
Thereafter, on March 24, 1984, Smith, in the company of undercover agent Jenkins, entered the lounge at about 9:30 p.m. She introduced Jenkins to Haynes and asked Haynes if he could get some cocaine for them. Haynes replied that he could do so but that his source would not be in until later in the evening. At approximately 3:30 the following morning, while Haynes was busy attempting to break up a fight which had just started, an individual identified as Haynes' source entered the bar, and Haynes pointed out Smith to him. This source, identified as Ric, came to Smith and gave her what was subsequently identified as cocaine in a plastic bag, for which she paid him $50. By this time, the lights, which had previously been turned out in an attempt to help
stop the fight, were back on, and there was no attempt on the part of Ric to conceal the transaction. Later in the evening, Haynes asked Smith if she had been taken care of.
Again, on April 8, 1984, Altman entered the Shark Lounge at approximately midnight. He approached Haynes, who was acting as a bouncer at the entrance, and asked to buy a half gram of cocaine. Haynes asked Altman to step outside and agreed to procure the cocaine for Altman if he would front the money for it. Altman paid Haynes $60 in cash at the Shark Lounge, and, pursuant to the agreement between the parties, the cocaine was subsequently delivered later that afternoon at the Canaveral Pier. The transfer of money from Altman to Haynes took place near the door in front of an independent security guard hired by Respondent. Haynes explained the transfer as being a payoff of a bet.
On April 17, 1984, at approximately 9:00 p.m., Smith and Altman again entered the Shark Lounge and engaged Haynes in conversation, at which time Smith indicated that she wanted some more cocaine. Haynes replied he would get it, and Altman gave him $40 to purchase a half gram of cocaine. It was understood between them that Smith and Altman would be back the following evening to pick up the cocaine. When they did come back at approximately 11:45 p.m. on April 18, Haynes, who was out in the parking lot, motioned Altman to get into an Oldsmobile car, which Altman did. Haynes then removed the package of cocaine from the car's ashtray and attempted to give it to Altman, saying that it was good stuff. Altman, however, indicated that Smith had paid for it and that Haynes should give it directly to her. The two men then got out of the car and approached Smith, who was standing near the outside of the door to the lounge. Haynes attempted to give Smith the cocaine at that time, but she would not accept it and instead went into the lounge to use the restroom. As Haynes and Altman followed Smith into the lounge, Haynes pressed the cocaine onto Altman, indicating that he wanted to get rid of it. When Smith came back from the restroom a few moments later, Haynes told her he had already given the cocaine to Altman, who took it out of his pocket and put it in Smith's lap. She examined the cocaine and put it in her purse in full view of the other patrons of the bar. This substance, delivered by Haynes to Aliman and in turn to Smith, was subsequently identified as cocaine.
Neither agent went back to the bar until April 26, 1984, at approximately 1:30 a.m., when Altman and Smith, in the company of Special Agent Eslinger of the U.S. Drug Enforcement Administration (DEA), entered the bar. They contacted Haynes, who was working as a bartender at the time, and Smith asked him to get a half gram of cocaine for her. Haynes agreed to do this and told her to check with him the next day to see if he had procured it. At the time of her request, Smith gave Haynes $50 for the cocaine.
No further contact was had until late in the evening of April 30, 1984, when Altman, Smith, and an unidentified confidential informant entered the lounge. Smith asked Haynes at that time if he had obtained the cocaine she had paid for on April 26, and Haynes said that he had. This conversation took place near the door, where Haynes was working as a bouncer. Haynes took a plastic envelope containing a white powder from his right front pocket and gave it to Smith, who brought it back to the table and showed it to Altman. Later, pursuant to Smith's invitation, Haynes came to their table and said that over the weekend he had obtained some sensinilla, some speed, and another substance. Smith said she would like to have some speed, and Haynes said he could get 30 capsules of it for $15, which she gave to him. At this point, Haynes showed Smith a package of a black substance which he identified as hashish and offered to sell to her for $5. Smith did not buy any, however, and she, Altman, and the
informant departed the lounge after telling Haynes they would be back for the speed the next night. The white powdery substance that Smith obtained from Haynes that night was subsequently tested and found to be cocaine.
When Smith went back to the lounge on May 4, 1984, at 11:00 p.m., this time with Eslinger alone, she contacted Haynes, who was working as the bouncer. Haynes told her he had the speed which she had paid for previously on April 30 and told them to go sit down. Shortly thereafter, Haynes motioned for Smith to come over to the door area, and, when she did so, he briefly stepped outside the lounge and then immediately came back. When he returned, Haynes put a package inside Smith's purse, which she saw and which he stated was only 25 capsules instead of the 30 she had paid for. At this point, Smith asked Haynes if she could pay him $50 in advance for a half gram of cocaine, which Eslinger would pick up the following day at the Canaveral Pier. When Haynes agreed, Smith gave him the $50 while they were inside the bar. Thereafter, she and Eslinger left. The capsules which Smith received from Haynes that night in the lounge did not contain amphetamines or any other determinable controlled substance.
When Altman and Smith next returned to the bar on June 3, 1984, they found Haynes standing by the entrance. About a half hour after they went in, Smith asked Haynes if he had any cocaine and, when he replied in the affirmative, gave him $50 in advance for a half gram of cocaine. The arrangements made at that time were that the cocaine would be picked up on June
Somewhat later, when Altman and Smith were leaving, Haynes told Smith not to leave yet, that his source was getting the cocaine out of his car. Altman and Smith waited, and a few minutes later Haynes came up to Smith at the bar and dropped into her purse a small plastic bag which contained a white powdery substance subsequently identified as cocaine. When Haynes dropped the bag into her purse, Smith took it out and examined it in plain view at the bar, which was well lighted, before putting it back into her right-hand pocket. Shortly thereafter, Altman and Smith left.
The packages containing cocaine, which Smith held up to the light to examine, were approximately an inch and a half by an inch and a half in size. Although other employees were in the immediate area at the time that she held the packages up, and Altman does not know hew they could have avoided seeing what Smith was doing, Altman cannot say for sure that the employees did see it, nor can Smith. No other employees of the Respondent were involved in any of the drug deals except for Haynes. No other employees were in the immediate area when the sales were made. Neither Smith, Altman, nor Eslinger engaged in any discussion of drugs with any other employee of the bar on the numerous times they were in there.
Smith contends that she first went into the bar on March 12, 1984, with Altman to pick up some drugs offered at another bar. She started talking to a male at her right and asked him if he knew where she could get some grass. This individual said yes and went to make a phone call. Later, he identified himself as Harry Haynes and said that he worked there as a bouncer but was not on duty on that particular night. The drugs were not delivered that night, either. On March 14, at 2:00 a.m., Altman and Smith again went into the lounge. Smith approached Sherry, the bartender, and asked for Haynes, who was not there. Smith told Sherry that Haynes was to get her some grass, and, in Smith's opinion, Sherry did not react to this disclosure at all.
Sherry, on the other hand, denies any conversation with Smith about drugs. She indicated that Smith came to her frequently and asked for Haynes but never mentioned drugs in any capacity. Had Smith done so, Sherry states, she
would have asked her to leave. This last comment stands to defeat Sherry's credibility, however. It is unlikely that the comment was made. It is also unlikely that an experienced bartender, as Sherry is, would react by asking a repeat patron to leave for mentioning that Haynes was to get marijuana.
Sherry is the only one in the bar, except for Haynes, to whom Smith mentioned drugs, although she had a conversation about drugs with Haynes in front of Ric, who is apparently also a bouncer. When Smith asked about that, Haynes said that it was okay.
There is a divergence of opinion regarding the reputation of the Shark Lounge as a source of drugs. Randy Arles, a Melbourne Beach police officer on loan to the Cocoa Beach Police Department Vice Squad since mid-March of 1984 and operating undercover, was contacted previously by a confidential informant who indicated there was cocaine traffic at the Shark Lounge. Based on that information, Arles and another officer went in to try to make a buy but were unsuccessful because, as it was explained to him, his identity as a police officer had been disclosed. Information reaching him from such street sources as confidential informants and prostitutes indicated that the Shark Lounge was known as a place to buy cocaine and that Haynes, the bouncer, was the seller. This latter information, however, is hearsay testimony and, with the exception of that relative to Haynes, cannot serve as the basis for a finding of fact.
The identity of Haynes as the seller is corroborated by other independent admissible evidence, however.
On the other hand, Officer Charles B. Autry, who has been with the Cocoa Beach Police Department for 14 years, has come into contact with the Shark Lounge and its owner on several occasions and has been inside the lounge four or five times. To his knowledge, it is a well-run establishment, and he has never in his 14 years been called there while on duty. The owner is very businesslike and very cooperative. He runs a tight ship and encourages the police to come inside both while on and off duty. In Officer Autry's opinion, considering today's morality, any place where crowds congregate has the potential for drugs, including the Shark Lounge, which he would not class as a nuisance.
This opinion was also held by Major Gary Hummel, who has been with the Cocoa Beach Police Department for 14 years. He has been in the Shark Lounge on many occasions and knows the owner personally. He considers Mr. Autry to be an upright businessman who is not himself involved in drugs. The lounge in question here is one of only two lounges in Cocoa Beach that Hummel will patronize and take his wife. Both socially and professionally, he knows of no employees who sell drugs at the lounge, but the employees know he is a police officer, and this may have some bearing on their behavior in his presence. Hummel believes the owner is tough and knows that he will fire any employee for being drunk on duty. He also discharges employees for even the slightest infractions of rules. This bar is not a nuisance in his opinion but is a good clean place where many of the Cape workers go.
These sentiments were reinforced by the proffered testimony of Officers William MacDonald and Al Otto of the Cocoa Beach Police Department, who both have been in the Shark Lounge frequently both socially and professionally. They have been encouraged to come in by the owner and find the lounge to be a clean, well-run, drug-free operation.
Sharon LeVaugh (Sherry) has worked at the lounge as a bartender for six and a half years and runs the floor operation. Her immediate supervisor is the owner, Mr. Autry, who, to her knowledge, has a strict policy against drugs.
Anyone using them, whether it be an employee or a patron, is immediately put out of the place. There is a low turnover of employees at the Shark Lounge, because it is a good place to work. During the six and a half years she has worked there, Sherry has never seen drugs used at the bar. She had no idea that Harry Haynes was dealing in drugs and doesn't think anyone else did.
The Shark Lounge is dark inside like a normal lounge. The crowd which patronizes it is made up of regulars, both young and old, with repeat patronage common. A lot of business comes from Space Center employees, and police are encouraged to come in frequently. Friday and Saturday nights are quite busy, with 200 to 300 people in attendance. The bar offers live music seven nights a week, and the music is a noisy rock and roll band.
Chad J. Milkint, the manager of the Shark Lounge, has worked there for a little over a year. Before that, he worked at another bar in the area for three years and has been in the lounge business both in Florida and outside the state for more than 11 years. When Milkint was hired, the owner was very clear about the "no drug policy," and he has followed it closely. He has, on occasion, thrown people out for being intoxicated either on drugs or alcohol. There is, he claims, a practical reason for this. If a patron is intoxicated, he is not buying drinks, and they are in business to sell drinks. Milkint did not know Haynes was using drugs or selling them. If he had, he would have fired him immediately. It was not at all unusual for Haynes to go outside as part of his job. In fact, Haynes' duties included a patrol of the outside area around the bar three or four times a night. Milkint admits he did no background check on Haynes except to check with his former employer, who gave Haynes a favorable recommendation. Haynes was a part-time employee who worked two or three days a week as a backup to the main barmen in addition to his duties as a bouncer. In a normal week, Haynes would work approximately 20 hours and had been employed sporadically by the bar for only five or six months. During the period of employment at the lounge, Haynes also worked at the Canaveral Pier. When Milkint checked with the beverage manager there, he was told that Haynes' performance was satisfactory. Milkint is frequently in the bar and observes what goes on. He denies ever seeing anyone check baggies by tapping or holding them up to the light, as described by Altman and Smith. He does not believe his employees saw that, either, because he feels that if they had seen it they would have reported it. The owner also supervises on a day-to-day basis, and in Milkint's opinion the operation is a good, ethical, well-run establishment. The employees are good, the entertainment is good, and the drinks are good and sold at fair prices. Milkint does not know how he could have prevented the sales by Haynes that took place there.
Gary C. Autry, sole stock owner of the Shark Lounge, has owned the establishment for eight years. He used to work more in the bar than he does now, but a recent blood condition has developed that has made him curtail his activities. When Autry came down with this condition, he hired Milkint as a manager and an individual by the name of Mike Harris as an assistant. He has known both of them for years and knew both had previous lounge experience. When he hired them, Autry told them immediately that his policy was "no drugs whatsoever." Although he cannot spend as much time in the establishment as he used to, Autry is nonetheless there seven days a week and closely supervises his operation. His bouncers are trained to handle drugs and work with the police. Had Autry known Haynes was selling or using drugs, Haynes would have been dismissed immediately. When he hires employees, he asks them their habits. He believes that because of his policies his turnover of employees is as low as it is.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in these proceedings.
Six of the 11 allegations of misconduct listed in the notice to show cause are charged ultimately as violations of Section 561.29(1)(a), Florida Statutes. This section provides that a liquor license may be disciplined upon the showing of 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 violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic bever- ages, 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 licensee except as permitted by chapter 92 or the rules of evidence.
In paragraph 1 of the Notice to Show Cause, it is alleged that Respondent's employee, Harry Haynes, sold marijuana to Special Agent Altman on the licensed premises in violation of Section 893.13, Florida Statutes (1983), thereby violating Section 561.29(1)(a), Florida Statutes (1983). The evidence presented through the testimony of Altman and Smith indicates that the actual transfer by Haynes and the payment both took place just outside the Shark Lounge, although the agreement was made previously inside. Since Haynes was, however, acting as bouncer for the licensee at the time of the transaction, a violation has been established.
In paragraphs 2, 3 and 5 of the Notice to Show Cause, Petitioner alleges that Respondent's employee, Harry Haynes, on the dates set out, sold cocaine to Special Agent Altman in violation of Section 893.13, Florida Statutes, such conduct also constituting a violation of Section 561.29(1)(a), Florida Statutes (1983). The evidence here indicates that the payment and delivery on March 22, 1984 (see paragraph 2), took place just outside the Liz lounge, while the agreement was made earlier inside the lounge while Haynes was working behind the bar. The situation is substantially different in the case of the sale on April 8, 1954 (paragraph 4), and the sale on April 17, 1954 (paragraph 5). In the former, the evidence shows that the agreement and payment both took place just outside the entrance to the lounge but the actual delivery as made later in the day at the Canaveral Pier, not in the immediate vicinity of the licensed premises. In the latter, the agreement was made inside the lounge
as was the payment. However, delivery was made in a car in the parking lot outside the lounge on the next day. While the latter is sufficiently related in time and location, the former is not.
In paragraph 3 of the Notice to Show Cause, it is alleged that on March 24, 1984, the licensee's employee, Harry Haynes, aided and abetted the sale of cocaine on the premises in violation of Sections 893.13 and 561.29(1)(a), Florida Statutes (1983). Here, the evidence shows that the payment for delivery of the cocaine was by an individual identified as Ric, the original agreement for the sale was made with Haynes, and, when Ric arrived at the licensed premises with the contraband, it was Haynes who pointed out Smith to him. There is no question here at all that this violation has been established.
Similarly, there is no question that a violation has been established regarding the transaction initiated on April 26, 1984, and consummated on April 30, 1984. The evidence clearly shows that the agreement and payment were made with Haynes on April 26 when he was working behind the bar. The delivery was subsequently made by Haynes on April 30 when, while working at the door of the licensed premises, he gave Smith the cocaine she had previously paid for.
In paragraph 7 of the Notice to Show Cause, Petitioner alleges the sale of counterfeit controlled substances on April 30 and May 4, 1984, in violation of subsection of Chapters 817 and 831, Florida Statutes (1983), which in turn, if established, would be violation of Section 561.20(1)(a), Florida Statutes (1983). The evidence clearly shows that on April 30, 1984, Smith paid Haynes $15 for 30 speed" capsules at the table where she was sitting in the licensed premises. Haynes delivered 25 pills on Nov 4, 1984, just inside the door where he was working. The pills did not contain controlled substances, but under the provisions of Section 817.563, Florida Statutes (1984), such a sale made under a false representation is, in itself, a violation.
Paragraph 8 of the Notice to Show Cause alleges that on May 4, 1984, Respondent's employee, Harry Haynes, attempted to sell cocaine to Smith on the licensed premises. The evidence shows that Smith paid Haynes $50 inside the licensed premises for cocaine to be delivered the following day to DEA Agent Eslinger at the Canaveral Pier. There is no evidence to indicate whether that delivery was actually made or not, but the actions of Respondent's agent in taking the money for a prospective delivery of cocaine is sufficient to establish the violation.
The evidence in the form of Altman's and Smith's testimony that on June 3, 1984, Smith paid Haynes $50 for cocaine that was subsequently delivered by him that same evening at the bar in the licensed premises is sufficient to establish the violation contained in paragraph 9 of the Notice to Show Cause.
In paragraph 10 of the Notice to Show Cause, Petitioner alleges that during the period alleged and described in the Findings of Fact, supra, Respondent maintained a public nuisance on its licensed premises by maintaining it as a place used for the keeping, selling, and delivery of controlled substances in violation of Section 532.10 [sic], Florida Statutes. It is obvious that the cited section, which deals with issuing worthless checks and drafts, was not intended to be cited but was the result of an administrative transposition of the figures in the correct subparagraph, to wit: Section 823.10, Florida Statutes, which was obviously intended. In any case, the evidence taken as a whole indicates that the licensed premises repeatedly served as the locus for the sale and delivery of cocaine, a controlled substance, by an
employee of the license holder, and this allegation has been clearly established. The same evidence also clearly establishes that the violation alleged in paragraph 11 of the Notice to Show Cause has been established as well. The proscribed conduct here is a violation of Section 893.13(2)(a)5, which makes it a misdemeanor of the first degree to keep a place which is used for the selling of controlled substances and, therefore, a violation of Section 561.29(1)(a) and (c), Florida Statutes.
It having been established that the offenses for the most part took place and that the cited violations in fact occurred, the question remains as to what, if anything, should be done about it. It is clear that Petitioner has the authority to discipline a license holder when it finds that either the licensee or its agents have violated certain laws of the state on the licensed premises.
A showing of only one isolated violation, when combined with a showing that the licensee otherwise took pains to obey the law, would not normally support a revocation or, perhaps, even discipline. If, however, the evidence shows that the laws were repeatedly and flagrantly violated by the employees, there arises an inference that the violations were either fostered, condoned, or negligently overlooked by the licensee, notwithstanding his absence from the premises when the violations took place; Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962); Lash, Inc. v. State, Dept. of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1902). A licensee, therefore, has the obligation to maintain a sufficient intelligence with regard to his own establishment so as to know, at least generally, what his employees are doing, and his failure to do so constitutes a lack of reasonable diligence and a failure of proper management; G & H of Jacksonville, Inc. v. State, Dept. of Business Regulation, 371 So.2d 138 (Fla. 1st DCA 1979)
Respondent here, Mr. Autry, indicates that he has been absent from the licensed premises more frequently lately due to a medical condition, but his manager, Milkint, insists that he is aware of his employees' behavior and insists on high and legal standards. This is confirmed by the testimony of the bartender, Sherry who also denies any conversation with Smith regarding drugs or their purchase from Haynes. It must also be acknowledged that in an establishment such as here, in a resort area, it is extremely difficult to ensure, short of a body search of each entering patron, that drugs are not introduced into the premises.
On the other hand, unless Altman and Smith are to be totally disbelieved, and this is not a viable option here, it is clear that drugs were bargained for and sold both inside and outside the licensed premises. What is also significant, however, is that with but one isolated exception the sales were made by one employee, Harry Haynes, who had been working for Respondent on a part-time basis for only a relatively short while. In addition, the evidence shows not that the sale of drugs was widespread throughout the establishment, open and notorious, or that either Altman or Smith were solicited by Haynes, but, to the contrary, it was the agents who initiated almost all, if not all, the buys.
Consequently, while the Respondent had the responsibility to properly supervise its establishment and clearly failed to do so here, and though the sales were repeated, it cannot be said that Respondent's negligence (no participation was either alleged or established) justifies revocation under the circumstances of this case. See also, Rex Allen Jones, t/a Happy Hour v. State, Div. of Alcoholic Beverages and Tobacco, Case No. AO-132 (Fla. 1st DCA 1984), opinion filed March 30, 1984.
RECOMMENDED ACTION
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED that Respondent P R of Brevard County, Inc., d/b/a Shark Lounge, pay a fine of $2,000.
DONE and RECOMMENDED this 24th day of July 1984, in Tallahassee, Leon County, 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 24th day of July 1984.
COPIES FURNISHED:
William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
James S. Theriac, III, Esquire
261 Merritt Square First Federal Building
Merritt Island, Florida 32952
Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Howard M. Rasmussen, Director Division of Alcoholic Beverages
and Tobacco
725 South Bronough Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jul. 24, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 24, 1984 | Recommended Order | Repeated drug violations on licensed premises supports discipline of license. |
