L. ASBURY d/b/a EDDIE'S )
Respondent. )
Consistent with the Notice of Hearing furnished the parties by the undersigned on January 9, 1985, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Ft. Pierce, Florida on February 20, 1985. The issue for consideration was whether Respondent's alcoholic beverage license should be disciplined because of the alleged misconduct outlined in the Notice to Show Cause filed by Petitioner herein.
For Petitioner: Harold F.X. Purnell, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Robert V. Schwerer, Esquire
Ft. Pierce, Florida 33448 BACKGROUND INFORMATION
On July 7, 1983, the Director of the Division of Alcoholic Beverages and Tobacco (DABT), filed a Notice to Show Cause against the Respondent, E. L. Asbury, d/b/a Eddie's Drive In, which alleged five separate violations of Section 893.13(1)(a)2. indicating that on the dates set out in the Notice, Respondent allowed the sale and delivery of a controlled substance in his establishment. Respondent thereafter filed a demand for formal hearing and the case was referred to the undersigned for hearing. However, before the case could come to hearing, Respondent filed an action for declaratory relief in the Circuit Court in and for St. Lucie County and, in addition, moved to abate the administrative hearing. The undersigned granted a continuance until March 16, 1984 and, shortly thereafter, pursuant to Petitioner's Motion to Amend, allowed an amendment to the Notice to Show Cause. Petitioner thereafter moved for a continuance of the hearing scheduled for March 16, 1984 and a continuance was
granted until July 6, 1984. Thereafter, the Hearing Officer was taken ill before the hearing could be convened and on July 2, 1984, another continuance was granted pending settlement negotiations. These negotiations were fruitless, however, and on January 9, 1985, the hearing was rescheduled for the date held.
At the hearing, Petitioner presented the testimony of Bob Max Young, a Sergeant with DABT and official custodian of the records of the agency's Ft. Pierce office; and Reylin Thompson, a beverage investigator out of the Miami office. Petitioner also introduced Petitioner's Exhibits 1 and 3 through 13. Respondent presented the testimony of Dorothy Lee Battle, a former patron of Respondent's establishment who was active in the sale and transfer of controlled substances in that area; and Daniel J. Cribbs, the supplier of Respondent's vending machines. Respondent also testified in his own behalf and introduced Respondent's Exhibits A through C.
The parties have submitted posthearing pleadings which include proposed findings of fact pursuant to Section 120.57(1)(b), Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.
At all times pertinent to the allegations and issues herein, Respondent was the holder of 2 COP alcoholic beverage license number 66-89, held since 1952, for his premises known as Eddie's Drive In, located at 1907 Avenue D., Ft. Pierce, Florida.
Mr. Asbury has operated his establishment at that location under the above license since 1952 with only three former infractions of a very minor nature. In 1959, he was warned for a failure to have the fingerprints of an employee on file. In 1963 he was given a 15-day suspension when a minor was found in possession of whiskey as opposed to beer on his premises. In 1965 he was again given a 15-day suspension and, in addition, a $200.00 fine because gambling tickets were found in the premises. Until the instant case, these were the only derogatory incidents in Respondent's file. Respondent has been known to be very cooperative with the authorities and has always quickly corrected violations brought to his attention.
In the latter part of 1982, based on a complaint from the Ft. Pierce police Department of numerous narcotics in the Avenue D area, Petitioner conducted an undercover investigation of several establishments in the area including that of the Respondent.
Pursuant to that investigation, Beverage Officer Thompson, five year veteran with DABT, who has been given the normal police training in narcotics detection and identification as well as having attended various schools conducted by the U.S. Drug Enforcement Agency, and who, based on this education and his experience in the field, is quite familiar with marijuana and its various forms and methods of use, in the company of another beverage investigator, Hamilton, on September 17, 1982, entered Respondent's premises at approximately 9:30 P.M. and observed both Respondent and his bar maid, Lois, on the premises. He took a seat at the bar across from Respondent and several feet off to the side of Lois. He saw Lois pull a cigarette from beneath the bar and start to smoke it. From the way she handled the cigarette and from the way it looked and smelled, he felt it was marijuana. While Lois was smoking this cigarette, she made no effort to hide it and was in full view of the Respondent
all the time. Thompson saw Respondent look over in her direction while she was doing it but made no issue of it or even acknowledged it. Though there were other patrons in the bar at the time, Thompson saw nothing else that looked like marijuana use to him that evening.
The following evening, September 18, both agents again entered the establishment and sat at the bar. This time the bar maid was Laverne. Thompson also saw a black female identified as Devonza at the counter with whom both he and the other investigator had a brief conversation. Later, Thompson saw another black female identified as Dot (Dorothy Battle), seated across the bar from Laverne, pull out and start smoking a cigarette he thought was marijuana. He also saw Dot pull small manila colored packages from a small pouch she carried and sell them for $5.00. These bags were similar in appearance to what he knew from his experience to be "nickle bags" of marijuana. He also saw Laverne smoking that evening and from the way she held the cigarette and from its odor and the way it was rolled and burning, he concluded it was marijuana. At this particular time, she was on duty behind the bar, but Respondent was not on the premises. No samples of the substance in question were taken either night.
Both investigators went back to the premises on September 22 at about 8:30 P.M. There were few patrons in the bar at the time. Thompson went to the bar and sat talking to Laverne who was on duty. When Dot came up and sat at the bar, he asked her if she had any $5.00 bags and she said she did. She pulled out a small manila bag like he had seen her sell on September 18 and made no effort to hide the transaction. She made the transfer to him above the level of the bar. Thompson does not know if Laverne saw the sale or not, but Respondent was not on the premises at the time. The substance he purchased that night was later properly identified as marijuana.
When he went back at about 10:00 P.M. on September 23, Thompson saw 10 or more patrons in the bar. He sat down at the bar across from Respondent and asked him if he knew where he could buy some "snow." Respondent indicated he did not, but that there was some around. Respondent's recollection of this conversation differs from that of Thompson. He says he thought Thompson was asking for snow, which is the nickname of a known drug dealer named Coleman, and he said he did hot know where he was but that he was around. Under either interpretation of the conversation, the result is the same. Thompson asked a question and got no assistance from Respondent's answer. There is nothing incriminating either in knowing that "snow" is available in the area (from all reports, drug use is rampant in this area), or in knowing that a known drug dealer, Snow, is around.
Thompson had also been in the bar earlier in the day, about 3:00 P.M., when he saw both Laverne and Dot inside. After sitting at the bar for a while, he walked over to the video area where he saw black males rolling and smoking what he took to be marijuana cigarettes in a remote area of the club. While talking with Laverne at the bar, he saw her pass an empty 1/2 of a cardboard beer box to three black males sitting at a table. He saw these males use this box to hold large amounts of what appeared to be raw marijuana from which they were making small manila packages of the substances which they subsequently put into a brown paper bag under the table. During this same time, he saw Laverne smoking what he suspected to be a marijuana cigarette.
At about 9:15 P.M. on October 8, Thompson again went back to the club and saw Laverne when he sat at the bar. Another black female, identified as Wanda, came to the bar and offered to sell him marijuana. She pulled out a
small package of purported marijuana and laid it on the bar, offering to sell it for $5.00. She also offered to sell him a somewhat larger bag for $6.00. At this point, Thompson gave Laverne a $20.00 bill and asked for change which she gave him. She was standing right there and made no effort at all to stop this sale of marijuana. In fact, Thompson had asked her if Wanda's stuff was any good and she replied it was.
While at the club that evening, he also saw other black males and females smoking what to him appeared to be marijuana at a remote area of the bar counter. He formed the opinion it was marijuana because of how the cigarettes were rolled, smoked, and passed around and from the distinctive smell it has.
On October 9, 1982, Thompson again went into the place, this time with Hamilton. On this occasion, Laverne was on duty and he sat at the bar and propositioned her to buy him some marijuana. She said she had none then because she had smoked it all, and so he was unable to make a buy that evening, but he saw, while in there, other patrons at the bar and in the area smoking what he is convinced was marijuana. Again, he formed that opinion because of the way the substance was being smoked and handled.
Thompson did not get back to Respondent's place until October 15, 1982, when he again went in with Hamilton. On this evening, Respondent was there and he could smell the heavy distinctive odor of marijuana in the premises. Thompson sat at the bar across from Respondent and observed a group of black males at a nearby table. While he was watching, he saw one black male inhale a large quantity of smoke and blow it into the nostrils of the other people at the table. When he saw this, he mentioned it to the Respondent who looked over and acknowledged it but made no effort to stop it or get these patrons out of his place.
On this same occasion, the bar maid, Brenda, was smoking what appeared to be marijuana after Respondent left and Thompson was able to purchase marijuana from Dot, at the bar and in front of Brenda, who also made no effort to stop the transfer. Brenda also made no effort to stop other patrons who were rolling and smoking what he believed to be marijuana cigarettes right at the bar.
Also on this same evening, Thompson observed Hamilton purchase what was subsequently identified as marijuana from Dot near the video games.
The next afternoon, on October 16, 1982, at about 2:30 P.M., Thompson again went into the Respondent's establishment with Hamilton and sat at the bar. At this time, he saw the rolling and smoking of suspected marijuana cigarettes at nearby tables and at the bar by unidentified black males. The smell and packaging of the substance is what convinced him it was marijuana.
Neither agent was in Respondent's establishment again until December 18, 1982, when both went in about 8:30 P.M. They sat at the bar where, on this evening, Beverly was the bar maid. While sitting there, Thompson saw various individuals smoking marijuana at different places on the premises and observed that Beverly made no effort to stop it. In fact, from the odor, the method of burning, and the way she smoked, he was convinced she was smoking it herself.
Dorothy Lee Battle (Dot) denies ever having met Thompson before this hearing and indicates he is lying when he says he bought marijuana from her at Respondent's establishment. She admits that she was arrested for the sale and delivery of marijuana outside Respondent's place but absolutely denies ever
having sold or transferred inside. Even though she refused to cooperate with the authorities who wanted to prosecute Respondent, she was placed on three years probation after being confined for almost 3 1/2 months.
She indicates she has known the Respondent since she was a kid and knows that he is definitely opposed to the use of drugs and will not permit it to be sold in his establishment. In fact, he has told her that she was not to bring any marijuana into his place and if she had any he would call the police.
She knows that Respondent is quite concerned about losing his license because she believes this is the only business he has. Because of that, there are a lot of signs warning against the smoking or selling of marijuana in there but notwithstanding, she has seen people smoking marijuana inside the bar. However, his patrons respect him and any marijuana smoking is done only when Respondent is not there and never when he is.
These signs have also been seen by Mr. Daniel Cribbs, the supplier of Respondent's vending machines, whose family has dealt with him for 30 years or so. Mr. Cribbs has been in Respondent's establishment every two weeks for a long while and has seen these signs prohibiting the use of selling of marijuana up and down for several months or so. He gave no indication as to whether they were there two years or so ago when the incidents in question were alleged to have taken place. In any case, he has spoken with Respondent about marijuana in the past and recalls that Respondent has stated that he doesn't want it in there.
These signs were also seen from time to time by Gary Coleman who, by deposition, indicated that they are the normal signs placed in all establishments where beer is sold. Coleman indicates he has also heard Respondent telling people who were smoking pot to leave his place. Coleman denies every smoking marijuana in Respondent's place or, for that matter ever doing anything unlawful there. He has lived in Ft. Pierce for about eight years and in all that time has only been in there about a dozen times or so. He is, however, by his own admission, on probation for selling narcotics. Therefore, neither his testimony or that of Ms. Battle are particularly credible and both Thompson and Young, who conducted the close out investigation of Respondent's premises indicate that on the times they were in there, neither ever saw any signs warning against the sale or smoking of marijuana. It is, therefore, most likely, that if any signs were posted, they were put up long after the incidents in question and were not there prior to official interest being shown.
Respondent denies that Thompson ever saw Lois smoke marijuana in his premises. He also indicates that he discharged Laverne by telling her she need not come to work any more when he found out she was doing drugs. He contends he never had any idea people were doing drugs in his establishment. He has, he says, always been against that sort of conduct and has repeatedly told his employees to call either the police or him if they saw people smoking marijuana on his property. He has, on at least one occasion prior to the incidents in question here, called the police on people smoking marijuana in his bar.
There is, he contends, only so much one can do about the problem short of that. Even on the occasion he called the police and they came and took the offenders outside, they were not arrested and, as he understood it, even after requesting the police to make these people stay out of his place, the police did not even take their names.
Mr. Asbury had a schedule for his routine at the time these alleged incidents took place which had him arriving at his place about 6:00 P.M. to check out the bartender on duty and check the money. This took about 30 minutes. He would then leave and come back between 9:00 and 9:30 P.M. to check for a while, after which he would again leave and come back at 11:00 P.M. and stay for the rest of the evening. This would be his routine just about every night of the week. He has no knowledge of the things that are alleged to have taken place when he was there. As to the shot gunning incident (the blowing of the marijuana smoke into the others' nostrils) that Thompson said he observed, Respondent denies it ever happened.
Respondent tries to hire only people he knows and trusts. He pays them in cash and keeps no employment records. During the period in question, he states he had two employees. One was named Vernel (he does not knew anyone named Laverne) and the other was named Lois.
Since the incidents in question, Respondent checks on his establishment much more than he did before. He has added a new afternoon visit to his schedule and has hired new girls to tend bar. While prior to this time, no one ever warned him of the problems he was apparently having, even now he still has problems with people smoking marijuana in the place. When he learns of it, he tells them to get out and he is quite satisfied that law enforcement officials have not seen much selling and smoking of marijuana in his place recently.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
Prior to the taking of testimony, Respondent contested the admissibility of any evidence dealing with allegations of misconduct contained in the Amended Notice to Show Cause filed in this case that were not in the original. The amendment was granted by the undersigned subsequent to a motion by Petitioner filed in February, 1984, which motion was not objected to by Respondent at the time, prior to the undersigned's ruling on the motion.
At the hearing, Respondent contended that since the request for an Amended Notice to Show Cause was not signed by the Director of DABT, it was ineffective and could not form the basis for additional charges. Respondent relied on Biddle v. State Beverage Department, 187 So. 2d 65 (Fla. 4th DCA 1966) as authority for its position. This case, which as will be seen below, has been superseded by subsequent legislative action, interpreted the current Chapter 561.29(3), Florida Statutes, which referred to the Director giving written notice to a licensee before he, the Director, revoked or suspended such licensee's license. This case was, however, superseded by action of the Florida Legislature in 1972 which by Chapter 72-230, Laws of Florida, amended that statutory provision changing the action from the "Director" to the "Division" as well as the related pronoun. Thereafter, Chapter 78-95 of the Laws of Florida deleted all of the foregoing subsection (3).
In the instant case the initial Notice to Show Cause furnished the Respondent was signed by the Director of the DABT and upon the request for formal hearing, the file was transmitted to this office for the appointment of a Hearing Officer. From that point on, the Division of Administrative Hearings had jurisdiction over the case and the parties and absent action finally disposing of the case, all orders and control over the case rested with the
undersigned. A Motion to Amend the Notice to Show Cause was filed in this case by James N. Watson, Jr., a staff attorney with Petitioner on February 20, 1984, after a copy was furnished to counsel for Respondent by U.S. Mail on February 16, 1984. Attached to the Motion to Amend was an Amended Notice to Show Cause which added additional allegations of misconduct to the original notice filed herein but which did not contain the signature of the Director of the Division. The Motion to Amend filed before the undersigned, however, was properly signed by counsel for the Division.
Notwithstanding a copy of this motion was furnished to Respondent's counsel, no objection to the motion was filed nor objection made until the date of the hearing exactly one year after the date the motion was filed. When no objection was filed by Respondent, on March 6, 1984, the undersigned entered an order granting the Petitioner's Motion to Amend the Notice to Show Cause.
Proper procedures having been followed, with the Respondent having been afforded all due process and proper notice, his objection to the introduction of evidence on the Amended Notice to Show Cause is hereby overruled.
In subparagraphs 1(a) through (f) of the Amended Notice to Show Cause, Respondent is alleged to have violated, either himself or through his agents, servants, or employees, the provisions of Section 561.29(1)(a), Florida Statutes, by possession, using, or selling a controlled substance, cannabis, while on the licensed premises at various and diverse times between September 17 and October 15, 1982. Section 893.13(1), Florida Statutes, makes it unlawful to possess, sell, or possess with intent to sell, cannabis, which is defined as a controlled substance by Section 893.03(1), Florida Statutes.
The testimony of Beverage Officer Thompson, contradicted only as to specific facts by Ms. Battle, a confessed drug pusher, is very clear and unequivocal in describing the transactions with which he was personally involved or which he personally observed in the Respondent's establishment on the days in question. Respondent contested directly only one incident reported by Officer Thompson, that is, the "shot gunning" which Thompson says he called to the Respondent's attention. Even if this were not true, there would still be ample evidence, if Thompson is to be believed, that regular and routine use, possession, and sales of marijuana were endemic in Respondent's establishment during the times Thompson was there.
In evaluating Thompson's testimony for credibility as opposed to that of the Respondent, a basic factor to be considered is who has the most to gain by telling an untruth. Thompson has been a beverage agent for several years and there is no showing whatever that he would have any ulterior motive for lying about what he saw and what he did while in Respondent's establishment. His testimony is highly credible and, not being effectively countered, is accepted as being true and established clearly the violations as alleged in the subparagraphs of paragraph 1 of the Amended Notice to Show Cause.
In paragraph 2 of that pleading, Respondent is alleged to have maintained a public nuisance on his premises during the period between September
17 and December 18, 1982, by operating his business in a place or building visited by others for the purpose of unlawfully using, selling or delivering controlled substances. This constitutes a violation of Sections 823.01, 823.10, and 561.29(1)(a) and (c), Florida Statutes. Paragraph 3 of the Amended Notice alleges a violation of Section 893.13(2)(a)5. and 561.29(1)(a), Florida Statutes, during the same time period as next above by the Respondent maintaining his licensed premises as a place resorted to by persons using controlled substances, in violation of the said statutes.
Again, the testimony of Agent Thompson, uncontradicted by any other credible source, establishes that on diverse times and occasions during the period in question, he and his partner, Agent Hamilton, entered Respondent's premises and observed numerous patrons and the employees there at the time using, possessing, or selling the controlled substance which was identified as cannabis. In regard to the issue of identification of the substance, that actually purchased by the beverage agents was subsequently chemically analyzed and identified as marijuana and that not purchased but merely observed in the process of use or transfer was identified by Agent Thompson as cannabis on the basis of his extensive experience in the area. It is quite clear that police officers trained in the identification and detection of marijuana as Thompson was can readily testify as to the identity of a substance which they observed being used. It is clear, therefore, that the evidence in its totality clearly establishes that the violations alleged in the Notice to Show Cause did in fact take place.
The remaining issue for consideration, however, is whether or not Respondent, as the owner of the premises and as the license holder is responsible for the conduct of his patrons, his agents, his servants, or his employees. There is no evidence that Mr. Asbury himself used, possessed, or sold marijuana. However, the evidence is overwhelming that his patrons and employees did so and he is responsible and his license may be disciplined if Petitioner can establish that the misconduct was done with his concurrence or accomplished without his concurrence but through his negligent failure to properly manage his premises.
Mr. Asbury testified, as did Ms. Battle, Mr. Coleman, and Mr. Cribbs, that Respondent is known for his anti-drug stance and he has placed signs warning against the use or sale of "pot" throughout his establishment from time to time. Neither Mr. Thompson nor Mr. Young, from DABT, ever saw these signs, however, at the time that the undercover investigation was going on. If in fact they were there, they must have been well hidden. More likely, however, they were not placed there until after the initial closing of the investigation and the notice to Mr. Asbury that his investigation was under scrutiny.
Further, Mr. Asbury testified that his standard routine for on- premises supervision kept him there for approximately two hours maximum each evening. All the rest of the time, the management of his operation was left to his bartenders who themselves were active controlled substance users. It is obvious that Mr. Asbury's supervision of his establishment was cursory at best and, considering the testimony of Mr. Thompson regarding Respondent's absolute failure to take any meaningful corrective action regarding the blatant use of marijuana while he was there, tends to diminish greatly his contention that he did all he could to keep drugs out.
The law is quite clear that a licensee has an 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 & B of Jacksonville, Inc. v. State, Department of Business Regulation, 371 So. 2d 138 (Fla. 1st DCA 1979).
A showing of only one isolated violation, when combined with a showing that the licensee otherwise took pains to obey the law, will not normally support a revocation or, perhaps discipline. If, however, the laws were repeatedly violated, there arises an inference that the violations were either
fostered, condoned, or negligently overlooked by the licensee, all conditions precedent to disciplinary action. See Pauline v. Lee, 147 So. 2d 359 (Fla. 2d DCA 1962); Lash, Inc. v. State, Department of Business Regulation, 411 So. 2d
276 (Fla. 3d DCA 1982); Golden Dolphin #2 v. Division of Alcoholic Beverages and Tobacco, 403 So. 2d 372 (Fla. 5th DCA 1981); and G & B of Jacksonville v. State, supra.
Here, it is clear that Respondent failed to properly supervise his establishment. It is also clear that he, while not encouraging, at least failed to take reasonable precautions to keep drugs out of his premises. On the other hand, he has operated his establishment for many years in a credible fashion and aside from a few minor infractions that were immediately corrected, has never been the subject of disciplinary action by the Division. Consequently, while Respondent had the responsibility to properly supervise his establishment and clearly failed to do so here, and though the marijuana activity was shown to have taken place on multiple occasions, it cannot be reasonably said that Respondent's negligence justifies revocation.
